[Cite as Utterback Dental Group, Inc. v. Lucido, 2013-Ohio-76.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                              JUDGES:
UTTERBACK DENTAL GROUP, INC.                          :       Hon. Patricia A. Delaney, P.J.
                                                      :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee           :       Hon. John W. Wise, J.
                                                      :
-vs-                                                  :
                                                      :       Case No. 2011-CA-00285
JAMES A. LUCIDO                                       :
                                                      :
                    Defendant-Appellant               :       OPINION




CHARACTER OF PROCEEDING:                                  Civil appeal from the Stark County Court of
                                                          Common Pleas, Case No. 2010-CV-04473



JUDGMENT:                                                 Affirmed




DATE OF JUDGMENT ENTRY:                                   January 14, 2013




APPEARANCES:

For Plaintiff-Appellee                                    For Defendant-Appellant

JACK COOPER                                               ROBERT ROHRBAUGH II.
KRISTEN MOORE                                             TRACEY A. LASLO
Day Ketterer LTD                                          325 East Main Street
Millennium Centre-Suite 300                               Alliance, OH 44601
200 Market Avenue North
Canton, OH 44702
[Cite as Utterback Dental Group, Inc. v. Lucido, 2013-Ohio-76.]


Gwin, J.,

        {¶1}     Defendant James A. Lucido appeals a judgment of the Court of Common

 Pleas of Stark County, Ohio, entered in favor of plaintiff Utterback Dental Group, Inc.

 Appellant assigns one error to the trial court:

        {¶2}     “I.   THE     TRIAL      COURT’S         GRANT   OF   DEFAULT   JUDGMENT

 CONSTITUTED ABUSE OF DISCRETION AS DEFENDANT WAS NOT SERVED

 WITH WRITTEN NOTICE OF THE APPLICATION FOR JUDGMENT AT LEAST

 SEVEN DAYS PRIOR TO THE GRANT OF DEFAULT JUDGMENT AS IS

 EXPLICITLY REQUIRED BY CIV. R. 55 (A).”

        {¶3}     The record indicates appellee filed a complaint against appellant on

 December 10, 2010. Appellant filed an answer and counterclaim on January 12, 2011.

 On January 18, 2011 and April 29, 2011, appellee served appellant with discovery

 requests for documents. Appellant did not produce the documents, but did not file an

 objection or otherwise seek court review of the requests.

        {¶4}     At a pre-trial conference on August 22, 2011, the parties brought this

 matter to the court’s attention. The court responded with an order filed the same day

 directing appellant to provide certain specified documents within five days of the order.

 On August 25, 2011, appellee filed a motion for sanctions, to which appellant replied

 on August 26, representing he had fully complied with court’s order.

        {¶5}     On September 8, 2011, the court entered an order setting the matter for

 oral hearing on September 9. The court directed appellant to personally appear for

 potential questioning by the court or by counsel concerning the motion. The court

 cautioned that “any failure of the defendant to so comply may result in further sanctions
Stark County, Case No. 2011-CA-00285                                                     3


including striking of the defendant’s answer and other sanctions as may be deemed

appropriate by the court.” There is no transcript of the hearing on September 9.

      {¶6}   On September 13, 2011, the court entered an order directing appellee to

make immediately available all its books, records and other matters necessary for a

defense expert to provide an opinion. The court also sustained appellee’s motion to

compel, and directed appellant to provide the records as requested fully and

completely on or before September 14, 2011, at 4:00 p.m. The court ordered appellant

to pay the legal fees appellee incurred in the attempt to obtain discovery on or before

September 14. The court cautioned “Should defendant fail to comply with this order,

the court will consider striking the defendant’s answer in the within proceedings.”

      {¶7}   On September 14, 2011, appellee filed a motion to strike the answer and

counterclaim and for entry of default judgment as to the liability. On September 16,

2011, the court conducted an oral hearing on the motion, a transcript of which has

been provided to us. At the hearing, the court stated it had warned appellant if he

failed to comply with the discovery orders, the court would consider further sanctions,

including striking the answer and granting default. Transcript of Proceedings, page 5.

      {¶8}   On September 16, 2011, the court entered judgment striking appellant’s

answer and dismissing his counterclaim with prejudice.        The court granted default

judgment on the issue of liability, and set a damage hearing for September 20, 2011.

      {¶9}   In Toney v. Berkemer, 6 Ohio St. 3d 455, 453 N.E. 2d 700 (1983), the

Ohio Supreme Court held: “It is an abuse of discretion for a trial court to grant a default

judgment for failing to respond to discovery requests when the record does not show

willfulness or bad faith on the part of the responding party.” Syllabus by the court.
Stark County, Case No. 2011-CA-00285                                                       4

       {¶10} In Toney, the Supreme Court cited Civ. R. 37 (A) and (B) as vesting broad

discretion for the trial court to impose sanctions for failure to comply with discovery

orders. The court noted the United States Supreme Court has held the harsh remedy of

dismissal or default should only be used where the failure to comply is due to

willfulness, bad faith, or fault of the party.       Toney, at page 548, citing Societe

Internationale v. Rogers, 357 U.S. 197, 212, 78 S. Ct. 1087 (1958). The Toney court

further held that a trial court’s imposition of the sanction of dismissal cannot be

disturbed unless it was an abuse of the trial court’s discretion. Id., citation deleted.

       {¶11} In Toney, the court found the appellant had complied with the discovery

order to the extent necessary so as not to prejudice the appellee’s case for trial. The

court found the trial court had stated no reason for an unreasonably short period of time

for response. The Supreme Court further found appellant gave valid health reasons for

what the court characterized as a brief delay, and he offered to provide additional

information or authorization for additional information if requested. The Supreme Court

concluded the record contained mitigating factors for the brief delay, and did not show

appellant acted willingly or in bad faith by failing to answer the essential interrogatories

and requests. The court added that if the appellant had failed to submit documentation

on damages, the appropriate sanction would be preclusion of evidence on that issue

rather than the harsh remedy of default judgment.

       {¶12} Here, the trial court had imposed the sanction of attorney fees and warned

the appellant of the consequences of further delay.         The delay here, unlike that in

Toney, could not be characterized as brief; the requests were made on January 18 and

April 29, and the court’s judgment striking the answer and counterclaim was not entered
Stark County, Case No. 2011-CA-00285                                                      5


until September 16. Further, appellant never brought the matter to the court’s attention

to limit or prohibit discovery of the various records appellee requested.       It appears

appellant’s response to the requests fell far short of the court’s order. The trial court

found appellant’s failure to comply was a flagrant abuse of the discovery process.

       {¶13} Appellant argues he did not receive sufficient notice of the hearing

pursuant to Civ. R. 55.     However, in the Toney case and the subsequent case of

Quonset Hut, Inc. v. Ford Motor Company, 80 Ohio St. 3d 46, 648 N.E. 2d 319 (1997),

the court found Civ. R. 37 and Civ. R. 41 apply to dismissals for discovery violations. In

Quonset Hut, the court found “* * * the very purpose of notice is to provide a party with

an opportunity to explain its default and/or to correct it.” The court found the trial court

had previously issued an order to compel and, when Quonset Hut failed to comply,

found it in contempt. The Supreme Court concluded on these facts Quonset Hut had

ample notice of the possible harsher sanctions.

       {¶14} Our review of the records leads us to conclude appellant had sufficient

notice of the court’s intention to impose sanctions, including striking his answer and

counterclaim, and was given the opportunity in two separate hearings to explain why he

failed to respond to the discovery requests. The trial court did not abuse its discretion in

finding appellant’s conduct constituted a flagrant abuse of discovery, and it did not

abuse its discretion in striking appellant’s answer and counterclaim, and entering default

judgment on behalf of appellee as to liability.

       {¶15} The assignment of error is overruled.
Stark County, Case No. 2011-CA-00285                                             6


      {¶16} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By Gwin, J.,

Delaney, P.J., and

Wise, J., concur




                                          _________________________________
                                          HON. W. SCOTT GWIN


                                          _________________________________
                                          HON. PATRICIA A. DELANEY


                                          _________________________________
                                          HON. JOHN W. WISE
WSG:clw 1206
[Cite as Utterback Dental Group, Inc. v. Lucido, 2013-Ohio-76.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


UTTERBACK DENTAL GROUP, INC.                           :
                                                       :
                            Plaintiff-Appellee         :
                                                       :
                                                       :
-vs-                                                   :          JUDGMENT ENTRY
                                                       :
JAMES A. LUCIDO                                        :
                                                       :
                                                       :
                        Defendant-Appellant            :          CASE NO. 2011-CA-285




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to appellant.




                                                           _________________________________
                                                           HON. W. SCOTT GWIN


                                                           _________________________________
                                                           HON. PATRICIA A. DELANEY


                                                           _________________________________
                                                           HON. JOHN W. WISE
