VALERIE JEAN WHITMAN, Plaintiff - Appellee v. BRENTON D. WHITMAN, Defendant - Appellant Case No. 2022 AP 10 0041 Court of Appeals of Ohio, Fifth District, Tuscarawas County DATE OF JUDGMENT: August 07, 2023 CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2018 TM 08 0288 JUDGMENT: Affirmed Counsel APPEARANCES: For Plaintiff-Appellee, MAX W. THOMAS, 203 Front Ave. SE, New Philadelphia, Ohio 44663 For Defendant-Appellant, ROBERT J. TSCHOLL, 236 Third Street SW, Canton, Ohio 44702 Panel members: Delaney, Patricia A., Baldwin, Craig, King, Andrew J. Baldwin, Craig, Judge OPINION {¶1} Defendant-appellant Brenton D. Whitman appeals the decision of the Tuscarawas County Court of Common Pleas, General Trial Division, which held that he engaged in frivolous conduct and bad faith in the parties’ domestic relations matter, and ordered him to pay attorney fees and expenses incurred by the plaintiff-appellee in defending against his actions. STATEMENT OF THE FACTS AND THE CASE {¶2} This matter has a long and arduous history. While the parties engaged in prolonged and at times antagonistic litigation, they were eventually able to reach an agreement. The parties’ separation agreement was filed on January 13, 2020. The trial court's January 15, 2020 magistrate's decision/decree of divorce approved and adopted the separation agreement, and made it part of the court's order. One of the terms of the separation agreement provided that the appellee would resign her 50% share of the company the parties co-owned, Stepping Stone Residential Facility, LLC, effective December 31, 2019. {¶3} In 2020, the appellee received a K-1 for the 2019 tax year which reported that Stepping Stone paid her $6,517.00, which she did not receive, and further reported that Stepping Stone paid the appellant over $87,000.00, which he did receive. On January 15, 2021, the appellee filed a Civ.R. 60(B) Motion for Relief from Judgment seeking relief from the January 15, 2020 decree of divorce in an effort to address the disbursement issue. The appellant filed a brief in opposition to the appellee's 60(B) motion, and the trial court scheduled the matter for hearing. {¶4} On July 14, 2021, the magistrate issued a decision which found that the appellee's 60(B) motion was not the proper vehicle through which to challenge the disbursements made by Stepping Stone, and found further that if the appellee believed her rights as a shareholder in Stepping Stone had been violated she should pursue a claim against the business in her capacity as a previous shareholder. Objections to the magistrate's decision were filed by both parties. On October 26, 2021, the trial court incorporated the magistrate's findings of fact and conclusions of law into its judgment entry and affirmed the denial of the appellee's motion for relief from judgment. Neither party appealed this decision. {¶5} In December of 2021, the appellee filed a demand for arbitration against Stepping Stone with the American Arbitration Association pursuant to the terms of the company's operating agreement, which contained a mandatory arbitration provision. The appellant challenged the jurisdiction of the arbitrator, arguing that the parties’ separation agreement, incorporated into the trial court's decree of divorce, gave the trial court continuing jurisdiction over the issue of Stepping Stone's disbursements and therefore prevented arbitration of the appellee's claim. The arbitrator considered the jurisdiction issue, and determined that the issue of whether Stepping Stone had improperly disbursed monies to shareholders was arbitrable. The appellant thereafter refused to participate in the arbitration. The arbitration proceeded, without the appellant, and the arbitrator issued a decision in favor of the appellee. *2 {¶6} Rather than proceed with the arbitration during which he could have submitted evidence regarding the disbursement issues, or file a motion to stay the arbitration so that he could further challenge the arbitrator's jurisdiction within the court system, the appellant filed a motion in the domestic relations matter on April 15, 2022 arguing that the appellee should be required to show cause as to why she should not be held in contempt of court for pursuing her shareholder claim against Stepping Stone regarding the 2019 disbursements through arbitration. The appellant's argument focused on the appellee's alleged violation of paragraph 30 of the separation agreement, which provided: “[t]he Court shall retain continuing jurisdiction to implement the provisions of this Separation Agreement as it pertains to such liabilities and to the transfer of ownership from Wife to Husband.” Paragraph 29 referenced the “liabilities” the appellant agreed to assume in exchange for the appellee's resignation of her ownership interest it he company, “including any and all mortgages, utilities, insurance premiums, real estate taxes, tax liabilities and any other related expenses.” Neither paragraph addressed the obligations, responsibilities or liabilities of Stepping Stone, who was not a party to the domestic relations matter, nor did the separation agreement subsume the company's operating agreement. {¶7} On April 29, 2022, the appellee filed an answer, together with a motion to confirm arbitrator's interim award and a motion for sanctions.[1] On June 7, 2022, the appellee filed a brief in opposition to appellant's motion to show cause and enforce separation agreement and a motion for sanctions pursuant to R. C. 2323.51. A show cause hearing was scheduled for June 28, 2022. {¶8} During the course of the show cause proceedings the appellee sought documentation and testimony from Stepping Stone in order to defend against the alleged contempt. The appellee issued both a subpoena duces tecum requesting documentation regarding the subject disbursements, and a subpoena to compel a representative from Stepping Stone to appear and provide testimony at the show cause hearing. The appellant refused to comply with the subpoenas, although he did not serve objections upon the appellee as required by Civ.R. 45. The appellee also filed a motion to compel and, on June 7, 2022, a motion for sanctions. {¶9} On June 21, 2022, the appellant filed a motion to quash the subpoenas in which he argued that the appellee had the opportunity to subpoena all necessary records in the “underlying case”, and reiterated his position that paragraph 30 of the separation agreement controlled the disbursement issues between the appellee and Stepping Stone. The appellant did not cite to a specific portion of Civ.R. 45 upon which he based his motion to quash, nor did he list any of the reasons set forth in Civ.R. 45(C)(3)(a-d) as the basis upon which to quash the subpoenas. The appellee prepared and file briefs in opposition to the motion to quash. On June 28, 2022, the magistrate issued an order requiring Stepping Stone to comply with the subpoena duces tecum and provide all requested documents, and comply with the subpoena to produce an authorized representative to appear and give testimony at the show cause hearing. On June 30, 2022, the magistrate issued an order denying the appellant's motion to quash subpoenas. On July 1, 2022, the magistrate issued an order rescheduling the show cause hearing for August 2, 2022. The appellant continued to refuse to provide the information requested by the appellee's subpoenas. On July 12, 2022, the appellant filed a notice of dismissal of his motion to show cause, and filed objections to the magistrate's orders of July 28, 2022 and July 30, 2022. {¶10} The appellee filed responses to the appellant's notice of dismissal and objections. The trial court thereafter ordered Stepping Stone and the appellant to reimburse the appellee's counsel for the costs, expenses, and reasonable attorney fees incurred in connection with enforcing the subpoenas, responding to the motion to quash, and preparing the motion to compel. The trial court ordered that the matter be scheduled for an oral hearing on September 19, 2022, on the appellee's motion for sanctions and the issue of attorney fees. *3 {¶11} The trial court reviewed the briefing, and conducted the September 19, 2022 hearing on the matter. On September 30, 2022, the trial court made findings of fact which stated in pertinent part: Facts * * * 32. Neither the Summons and Order to Appear, or the Magistrate's Order stated that the hearing would be non-evidentiary. 33. A party is always able to offer evidence as to why they are not in Contempt of Court. 34. On 06/28/2022, Defendant and Stepping Stone Residential Facility, LLC did not comply with the subpoenas. 35. On 06/28/2022, at 11:28 a.m., the Magistrate filed an Order requiring Stepping Stone Residential Facility, LLC to comply with the subpoena for documents and the subpoena to appear and give testimony. (Mag. Order, 06/28/2022, p 1, ¶#2). * * * 37. On 06/30/2022, the Magistrate issued an order overruling the Motion to Quash the subpoenas directed to Stepping Stone Residential Facility, LLC, and noting that “A Show Cause proceeding is generally evidentiary in nature...”. (Mag. Order, 06/30/2022, p. 2). 38. The Motion to Show Cause was set for hearing on 08/02/2022, at 2:00 p.m. 39. On 07/12/2022, Defendant dismissed his Show Cause Motion. 40. To summarize, Defendant's motion was continued a first time, because the summons and notice were improper. 41. The hearing was continued a second time because Defendant individually, and as statutory agent, failed to comply with lawful subpoenas. 42. The third scheduled hearing was cancelled because Defendant dismissed his Motion to Show Cause. {¶12} Based upon its findings of fact, the trial court made the following pertinent conclusions of law: Decision and Order * * * 2. As noted by Defendant's counsel, Stepping Stone Residential Facility, LLC and Defendant are virtually one and the same. 3. Defendant and Stepping Stone Residential Facility, LLC's conduct with respect to the subpoenas has been egregious and in bad faith. 4. Defendant and Stepping Stone Residential Facility, LLC failed to comply with Civ. R. 45(C)(2)(6) by not serving objections to the subpoenas on Plaintiff. 5. The Motion to Quash did not list any of the reasons to quash listed in Civ. R. 45(C)(3)(a-d). * * * 8. With respect to Plaintiff's Motion for Sanctions, the Court finds that Defendant's filing of the Motion to Show Cause against Plaintiff, for her filing a request for arbitration and proceeding with the arbitration, is devoid of any merit. 9. Defendant relies on paragraph 30 of the parties’ Separation Agreement as providing exclusive jurisdiction on the Court the respect to property matters. 10. This is incorrect. 11. Paragraph 30 of the Separation Agreement provides the Court with continuing jurisdiction with respect to the parties’ property. 12. This jurisdiction is not exclusive as noted in the Court's Judgment Entry, filed 10/26/2021 at p. 6-7. 13. Despite this Judgment Entry, when Plaintiff filed for arbitration, Defendant responded with a Motion to Show Cause with a Summons and Notice, including incarceration as a possible sentence. 14. This Court finds that Defendant's conduct in filing the Motion to Show Cause, after the Court found that Plaintiff could pursue remedies against Stepping Stone Residential Facility, LLC and Defendant outside the divorce case, is frivolous and subject to sanctions under R.C. § 2323.51(A)(2)(a)(i) and (ii). *4 15. As further evidence of misconduct, Defendant continued to pursue his motion even after the arbitrator had determined she had jurisdiction. {¶13} Based upon its findings and conclusions of law, the trial court found that the appellant violated Civ. R. 45 with regard to the appellee's subpoenas and awarded the appellee $2,300.00; and, found that the appellant acted frivolously in filing the motion to show cause and awarded sanctions, including attorney fees and costs, in the amount of $10,057.58. {¶14} The appellant filed a timely appeal, setting for the following two assignments of error: {¶15} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN FAILING TO CORRECTLY APPLY R.C. 2323 – OHIO'S FRIVOLOUS CONDUCT STATUTE – AND ERRONEOUSLY FINDING THAT APPELLANT ENGAGED IN FRIVOLOUS CONDUCT WHEN HE FILED HIS MOTION TO SHOW CAUSE AND TO ENFORCE SEPARATION AGREEMENT.” {¶16} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT APPELLANT'S CONDUCT WITH RESPECT TO SUBPOENAS WAS EGREGIOUS AND IN BAD FAITH.” ASSIGNMENT OF ERROR I {¶17} The appellant submits in his first assignment of error that the trial court erred and abused its discretion when it found that he had engaged in frivolous conduct when he filed his motion to show cause. We disagree. Standard of Review {¶18} The standard of review to be applied in frivolous conduct cases was succinctly articulated by the court in Bowling v. Stafford & Stafford Co., L.P.A., 1st Dist. Hamilton No. C-090565, 2010-Ohio-2769: The standard of review to be applied to a trial court's decision to grant sanctions under R.C. 2323.51 depends on whether there are questions of law or of fact, or whether there are mixed questions of law and fact. For purely legal questions, the appellate court applies a de novo standard of review. In contrast, an appellate court may not disturb a trial court's findings of fact if the record contains competent, credible evidence to support those findings. Finally, an appellate court applies an abuse-of-discretion standard with respect to a trial court's decision to award attorney fees on the basis that frivolous conduct has adversely affected a party. Id. at ¶8. {¶19} This case presents the Court with mixed questions of law and fact. Whether the appellant had a cognizable claim to support his motion to show cause presents a question of law subject to a de novo standard of review; and, whether competent, credible evidence supports the trial court's finding that the appellant's actions were frivolous presents a question of fact subject to an abuse of discretion standard of review. Analysis {¶20} Frivolous conduct is defined by R.C. 2323.51(A)(2) as follows: (a) Conduct of an inmate or other party to a civil action, of an inmate who has filed an appeal of the type described in division (A)(1)(b) of this section, or of the inmate's or other party's counsel of record that satisfies any of the following: (i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation. *5 (ii) It is not warranted under existing law , cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law. (iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief. {¶21} This court recently discussed frivolous conduct in Almasoodi v. J. Harris Constr. Inc., 5th Dist. Delaware No. 22 CAE 06 0053, 2023-Ohio-895, 211 N.E.3d 209: A motion for sanctions brought under R.C. 2323.51 requires a three-step analysis by the trial court. The trial court must determine (1) whether the party engaged in frivolous conduct, (2) if the conduct was frivolous, whether any party was adversely affected by it, and (3) if an award is to be made, the amount of the award. Bear v. Troyer, 5th Dist. Guernsey Nos. 15 CA 17, 15 CA 24, 2016-Ohio-3363, 2016 WL 3219711, ¶55. The presence of one of the following factors supports a finding of frivolous conduct under R.C. 2323.51(A)(2)(a): (i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation. (ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law. (iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief. The question of what constitutes frivolous conduct may be either a factual determination, or a legal determination. Ferron v. Video Professor, Inc., 5th Dist. Delaware No. 08-CAE-09-0055, 2009-Ohio-3133, 2009 WL 1836486, ¶ 44, Pingue v. Pingue, 5th Dist. Delaware No. 06-CAE-10-0077, 2007-Ohio-4818, 2007 WL 2713763, ¶ 20 citing Wiltberger v. Davis, 110 Ohio App.3d 46, 673 N.E.2d 628 (10th Dist.1996). A determination that the conduct is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law requires a legal analysis. Lable & Co. v. Flowers, 104 Ohio App.3d 227, 233, 661 N.E.2d 782 (9th Dist.1995). With respect to purely legal issues, we follow a de novo standard of review and need not defer to the judgment of the trial court. Wiltberger, supra, at 51–52, 673 N.E.2d 628. However, we do find some degree of deference appropriate in reviewing a trial court's factual determinations and will not disturb such factual determinations where the record contains competent, credible evidence to support such findings. Id. *6 Id. at ¶¶ 55-56. {¶22} In this case, the appellant filed a motion in which he argued that the appellee should be required to appear and show cause as to why she should not be held in contempt of court for pursuing arbitration against Stepping Stone pursuant to the terms of the company's operating agreement. However, the appellee initially sought redress of her grievance regarding the disbursements in the domestic relations case; on October 26, 2021, the trial court issued a judgment entry in which it held that it did not have jurisdiction over the disbursement issue, and that the appellee should seek redress directly against Stepping Stone in her capacity as a former shareholder. Neither party appealed the trial court's October 26, 2021 decision. Thus, the October 26, 2021 ruling established that the trial court did not have jurisdiction to make a determination regarding disbursements made by Stepping Stone, who is a non-party to the domestic relations matter. {¶23} The appellee thereafter filed a demand for arbitration against Stepping Stone with the American Arbitration Association pursuant to the terms of the company's operating agreement seeking redress for the allegedly inappropriate disbursements. The appellant challenged the authority of the arbitrator. The arbitrator reviewed the jurisdiction issue and ultimately held that she did, in fact, have jurisdiction over Stepping Stone's disbursements. Rather than seek a stay of the arbitration and challenge the arbitrator's authority, or participate in the arbitration and submit evidence regarding the disbursements, the appellant filed the motion to show cause – despite the fact that the trial court had already determined that it did not have jurisdiction over the disbursement issue. {¶24} The trial court did not err in determining that the appellant's conduct was frivolous. R.C. 2323.51(A)(2)(a) only requires the presence of one of the factors listed; in this case, the appellant's actions satisfy at least two of the factors. First, the appellant filed a motion on an issue over which the trial court had already determined it did not have jurisdiction and from which no appeal had been taken, rendering the claim warrantless. Second, the motion served to harass the appellee and cause unnecessary delay, and needlessly increased in the appellee's cost of litigation. {¶25} Furthermore, the appellee was adversely affected by the appellant's frivolous conduct. The appellant's pursuit of a warrantless motion to show cause required the appellee to expend considerable time and expense in preparation of a defense. To that end, she issued subpoenas to Stepping Stone for documentation and to compel a representative of Stepping Stone to provide testimony regarding the disbursements. Stepping Stone refused to comply, and the appellant filed a motion to quash the subpoenas, instigating yet more briefing. When the trial court determined that the motion to quash should be denied and Stepping Stone was compelled to comply with the subpoenas, the appellant withdrew his motion and filed objections to the magistrate's decisions, yet again requiring the appellee's counsel to undertake the preparation of additional legal briefs, and further delaying resolution of the issues. *7 {¶26} The trial court correctly found that the appellant's motion to show cause was without merit. There simply was no viable argument that the appellee was in contempt of court for pursuing arbitration under the terms of Stepping Stone's operating agreement when the trial court had already issued a decision denying the appellee relief on the disbursement issue in the domestic relations matter and stating that relief should be sought in her capacity as a former shareholder directly against Stepping Stone.[2] The appellee was adversely affected by the appellant's actions, and the trial court scheduled the matter for hearing and properly determined the amount to be awarded to the appellee. {¶27} Furthermore, the trial court correctly found that the appellant engaged frivolous conduct. The appellant's conduct served merely to harass the appellee, and cause unnecessary delay and/or a needless increase in the cost of litigation. The first hearing on the motion was continued because the appellant's summons and notice were improper. The second hearing was continued because the appellant, individually and as statutory agent for Stepping Stone, refused to comply with lawful subpoenas. The third hearing was cancelled because the appellant dismissed his motion to show cause after the court ordered Stepping Stone to comply with the subpoenas. {¶28} The appellee was adversely affected by the appellant's conduct, as she incurred attorney fees, costs, and expenses in preparing a defense to the appellant's baseless motions. The trial court properly awarded the appellee her attorney fees, costs and expenses after reviewing the September 22, 2022 affidavit of appellee's counsel regarding the same, a copy of which was served upon appellant's counsel and to which no response was filed. {¶29} Based upon the above, we find appellant's assignment of error number one to be without merit, and it is therefore overruled. ASSIGNMENT OF ERROR II {¶30} The appellant submits in his second assignment of error that the trial court abused its discretion when it found that he acted in bad faith with regard to the subpoenas issued by the appellee in her defense of the motion to show cause. We disagree. Standard of Review {¶31} We review the trial court's award of sanctions against the appellant pursuant to Civ.R. 45(E) based upon an abuse of discretion standard. In order to find an abuse of discretion, we must find that the trial court's decision was unreasonable, arbitrary or unconscionable, and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). {¶32} Civ.R. 45 provides for the issuance of subpoenas to non-parties, and addresses the protection of non-parties as follows: (C) Protection of Persons Subject to Subpoenas. (1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. (2)(a) A person commanded to produce under divisions (A)(1)(b), (iii), (iv), (v), or (vi) of this rule need not appear in person at the place of production or inspection unless commanded to attend and give testimony at a deposition, hearing, or trial. *8 (b) Subject to division (D)(2) of this rule, a person commanded to produce under divisions (A)(1)(b), (iii), (iv), (v), or (vi) of this rule may, within fourteen days after service of the subpoena or before the time specified for compliance if such time is less than fourteen days after service, serve upon the party or attorney designated in the subpoena written objections to production. If objection is made, the party serving the subpoena shall not be entitled to production except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena, upon notice to the person commanded to produce, may move at any time for an order to compel the production. An order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the production commanded. (3) On timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearance or production only under specified conditions, if the subpoena does any of the following: (a) Fails to allow reasonable time to comply; (b) Requires disclosure of privileged or otherwise protected matter and no exception or waiver applies; (c) Requires disclosure of a fact known or opinion held by an expert not retained or specially employed by any party in anticipation of litigation or preparation for trial as described by Civ.R. 26(B)(7)(h), if the fact or opinion does not describe specific events or occurrences in dispute and results from study by that expert that was not made at the request of any party; (d) Subjects a person to undue burden. (4) Before filing a motion pursuant to division (C)(3)(d) of this rule, a person resisting discovery under this rule shall attempt to resolve any claim of undue burden through discussions with the issuing attorney. A motion filed pursuant to division (C)(3)(d) of this rule shall be supported by an affidavit of the subpoenaed person or a certificate of that person's attorney of the efforts made to resolve any claim of undue burden. {¶33} Stepping Stone failed to object to the subpoenas as required by Civ.R. 45(2)(b). Further, the appellant's motion to quash failed to list any of the requisite reasons set forth in Civ.R.45(C)(3)(a-d) upon which the trial court could have quashed the subpoenas. The motion to quash was denied, and Stepping Stone was ordered to comply with the subpoenas. Rather than comply as required by the trial court, the appellant dismissed his motion to show cause, illustrating the specious nature of the motion and the appellant's litigiousness regarding the same. {¶34} Civ.R. 45 (E) provides for sanctions, and states: (E) Sanctions. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. A subpoenaed person or that person's attorney who frivolously resists discovery under this rule may be required by the court to pay the reasonable expenses, including reasonable attorney's fees, of the party seeking the discovery. The court from which a subpoena was issued may impose upon a party or attorney in breach of the duty imposed by division (C)(1) of this rule an appropriate sanction, which may include, but is not limited to, lost earnings and reasonable attorney's fees. {¶35} In the case sub judice, the appellee issued subpoenas to Stepping Stone seeking the production of documents and testimony of a company representative at the show cause hearing in preparation of her defense against the appellant's motion to show cause. The appellant refused to comply, but failed to serve objections to the subpoena. The appellee filed a motion to compel, and the appellant filed a motion to quash. However, the appellant's motion to quash failed to list any of the reasons to quash set forth in Civ.R. 45. *9 {¶36} This court has defined bad faith as follows: “Bad faith” has been defined as a “dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud.” Zieber v. Heffelfinger, 5th Dist. Richland No. 08CA0042, 2009–Ohio–1227, ¶ 49, quoting Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App.3d 448, 454, 602 N.E.2d 363, 367 (additional citations and internal quotations omitted). “Bad faith” has also been defined as “[t]he opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, * * * not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive.” Hicks v. Leffler, 119 Ohio App .3d 424, 429, 695 N.E.2d 777, 780 (10th Dist.1997), quoting Black's Law Dictionary (5 Ed.1979) 127. Schaad v. Buckeye Valley Loc. Sch. Dist. Bd. of Edn., 5th Dist. Delaware No. 15 CAE 080063, 2016-Ohio-569, ¶ 24. {¶37} The appellant's refusal to comply with the subpoenas without a valid legal basis, and dismissal of his motion once compelled to do so by the trial court, is illustrative of a dishonest purpose and ulterior motive. The trial court did not act arbitrarily, unreasonably, or unconscionably when it found that the appellant's refusal to comply with the subpoenas and the litigation tactics used to prevent disclosure of the requested information was egregious and in bad faith, or in awarding sanctions for violation of Civ.R. 45. {¶38} Based upon our review of the record in this matter, we cannot say that the trial court abused its discretion when it found that the appellant and Stepping Stone, who by the appellant's own admission were essentially one and the same, acted in bad faith in response to the appellee's subpoenas. Accordingly, the appellant's assignment of error number two is without merit, and is overruled. CONCLUSION {¶39} The appellant's assignments of error are without merit and are overruled, and the decision of the Tuscarawas County Court of Common Pleas is hereby affirmed. Delaney, P.J. and King, J. concur. Footnotes [1] In addition, on June 6, 2022, the appellee filed a separate complaint in which she set forth an application to confirm the arbitration award in Tuscarawas County Court of Common Pleas Case No. 2022 CV 06, 0333, entitled Whitman v. Stepping Stone Residential Facility LLC, et. al. [2] This court affirmed the legitimacy of the appellee's pursuit of arbitration in Whitman v. Stepping Stone, 5th Dist. Tuscarawas No. 2022 AP 10 0038, 2023-Ohio-2661 (“In the matter before us, Appellee sought judgment for disbursements from Stepping Stone for the tax year 2019. The obligation of Stepping Stone to issue distributions and the member's share of any disbursements cannot be determined without reliance on the Operating Agreement, supporting a conclusion that the action is within the scope of the Operating Agreement. Further, the dispute does not require reference to the Separation Agreement as the parties did not address disbursement of Stepping Stone profits within that document”).