[Cite as Wightman v. Weade, 2019-Ohio-4915.]




                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                         FAYETTE COUNTY




 JOHN WIGHTMAN, et al.,                        :      CASE NO. CA2019-04-006

         Appellants,                           :             OPINION
                                                              12/2/2019
                                               :
   - vs -
                                               :

 WEADE, LLC REALTORS AND                       :
 AUCTIONEERS, et al.,
                                               :
         Appellees.



         CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                             Case No. CV20180077



John H. Flessa, 810 Sycamore Street, Cincinnati, Ohio 45202, for appellants

Pyper & Associates, LLC, Thomas H. Pyper, 7601 Paragon Road, Suite 103, Dayton, Ohio
45459, for appellee, Weade, LLC Realtors and Auctioneers

Reminger Co., LPA, Zachary B. Pyers, Brandon L. Abshier, 200 Civic Center Drive, Suite
800, Columbus, Ohio 43215, for appellee, John R. Willis

Stephen K. Shaw Law, LLC, Stephen K. Shaw, 8157 Camargo Road, Lower Unit, Madeira,
Ohio 45243, for appellee, Barbara Saunders



        M. POWELL, J.

        {¶ 1} Appellants, John Wightman and Lori Wightman ("appellants" collectively, and

individually as "John Wightman" and "Lori Wightman"), appeal the decision of the Fayette
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County Court of Common Pleas granting judgment in favor of appellees, Weade, LLC

Realtors and Auctioneers, John R. Willis, and Barbara Saunders ("appellees" collectively,

and individually as "Weade," "Willis," and "Saunders," respectively).1

        {¶ 2} Appellants were tenants of a rental property owned by Willis and Saunders

and managed by Weade. Appellants filed their initial complaint in March 2018 against

Weade, alleging personal injuries and other damages arising from a mold infestation in the

property. On June 11, 2018 appellants filed an amended complaint to include Willis and

Saunders.2 In September, the trial court filed a scheduling order establishing discovery

cut-off and trial dates. At the end of September and early October, appellees moved the

court to compel discovery from appellants citing appellants’ limited and incomplete

responses to their discovery requests. On November 9, 2018, the trial court granted

appellees' motion and ordered appellants to comply with appellees' discovery requests by

December 3, 2018.

        {¶ 3} Appellants did not comply with this court order. Consequently, two of the

appellees moved to dismiss the complaint with prejudice in December 2018. The third

appellee filed a similar motion in January 2019. Appellants filed a response to the motion

to dismiss. The trial court held a hearing on the matter at the end of January 2019. John

Wightman and his attorney attended and participated in this hearing. Lori Wightman did not

appear for the hearing.

        {¶ 4} On February 7, 2019, the trial court entered an order denying the motions to



1. There is an issue as to whether Lori Wightman's appeal is properly before this court. Appellants' counsel
included Lori Wightman as a party in the notice of appeal and in his notice of substitute representation.
However, counsel did not submit a brief on behalf of Lori Wightman and averred at oral argument that he did
not represent Lori Wightman. Nevertheless, without an entry in the record granting either counsel's motion to
withdraw from representation or a motion to dismiss, this court shall consider Lori Wightman as an additional
appellant and address her appeal together with that of John Wightman.

2. The amended complaint included a fourth defendant who was subsequently granted summary judgment in
his favor. Appellants did not appeal that decision.
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dismiss, but ordered appellants to pay the appellees' reasonable attorney fees for the

motion, ordered Lori Wightman, in accordance with her attorney's representation to the trial

court, to file a notice of dismissal for any medical or employment loss damage claims, and

ordered appellants to comply with specific discovery requests by February 15 and March 1,

2019. In this order, the trial court notified appellants that any further failure to comply with

the court's order would subject them to sanctions including dismissal of the complaint. The

court deferred further consideration of an award of attorney fees pending appellees'

submission of affidavits within fifteen days.

        {¶ 5} In response to that order, John Wightman filed a partial answer to the

interrogatories, filed a witness list, and submitted limited documents and release

authorizations. Lori Wightman submitted nothing and did not dismiss her claims, as agreed.

After the February discovery response deadline had passed, appellees moved for

sanctions, requesting a dismissal with prejudice against appellants for their failure to fully

comply with the discovery order. After the March 1, 2019 discovery response deadline, two

of the appellees further moved for sanctions against appellants for the additional failure to

comply. Appellants did not file a response to these motions. The trial court held a hearing

on this matter in late March 2019.                John Wightman and his attorney attended and

participated in this hearing. Lori Wightman did not appear for the hearing.

        {¶ 6} On April 1, 2019 the trial court granted appellees' motions and entered

"default judgment with prejudice" in favor of appellees.3 In this judgment entry, the trial

court did not award attorney fees to appellees in view of having rendered default judgment

in appellees' favor, but stated that it would order appellants to pay appellees' attorney fees

if the cause were to be reversed on appeal and remanded.




3. As will be discussed in this opinion, the trial court's final order amounted to a dismissal with prejudice.
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       {¶ 7} Appellants now appeal raising two assignments of error for review.

       {¶ 8} Assignment of Error No. 1:

       {¶ 9} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO

GIVE PLAINTIFF OR PLAINTIFF'S COUNSEL ACTUAL, PREREQUISITE, SPECIFIC

NOTICE OF THE COURT'S INTENTION TO ORDER THE MOST SEVERE SANCTION,

TO DISMISS THE PLAINTIFF'S CASE WITH PREJUDICE, BY IMPROPERLY GRANTING

DEFAULT JUDGMENT.

       {¶ 10} In the first assignment of error, appellants argue two issues. First, appellants

contend that the trial court failed to provide actual notice that it intended to dismiss the

cause with prejudice as required by Civ.R. 41(B). Second, appellants argue that the

dismissal with prejudice was an excessive sanction because there was nothing in the record

to show that appellants' failure to respond was willful or in bad faith.

       {¶ 11} Before addressing the merits of the case, we first discuss the characterization

used by the trial court in its final order. Regarding the sanctions of dismissal and default

judgment contained in Civ.R. 37(B)(1)(e) and (f) respectively, "dismissal applies to a

plaintiff's case" and a "default judgment is entered against a defendant." Producers Credit

Corp. v. Voge, 12th Dist. Preble No. CA2002-06-009, 2003-Ohio-1067, ¶ 15, citing Civ.R.

41 and 55. Therefore, the trial court decision to grant appellees motions and render "default

judgment in favor of Defendants as to all claims which is a judgment with prejudice" is

technically incorrect. Default judgment may not be granted against appellants because they

were the party seeking affirmative relief, not the party against whom affirmative relief was

sought. See Civ.R. 55. Nevertheless, the effect of the order is the dismissal of appellants'

cause of action on the merits as provided in Civ.R. 41(B). Accordingly, this court will review

the order as a dismissal pursuant to Civ.R. 37(B)(1)(e) and 41(B)(1).

       {¶ 12} Civ.R. 41(B) sets forth a trial court's authority to involuntarily dismiss a

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plaintiff's action or claim. Unless otherwise indicated, a dismissal pursuant to Civ.R. 41(B)

is an adjudication on the merits. "A dismissal on the merits is a harsh remedy that calls for

the due process guarantee of prior notice." Ohio Furniture Co. v. Mindala, 22 Ohio St.3d

99, 101 (1986). Therefore, the rule requires that a trial court give the plaintiff notice of its

intention to dismiss the action before it may do so. Civ.R. 41(B)(1).

       {¶ 13} "The decision to dismiss a case pursuant to Civ.R. 41(B)(1) is within the sound

discretion of the trial court." Collins v. Kirby, 12th Dist. Warren No. CA2018-07-079, 2019-

Ohio-1293, ¶ 14, citing Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 47 (1997).

Consequently, an appellate court will review a dismissal for an abuse of discretion. Quonset

Hut at 47. An abuse of discretion is more than an error of law or judgment, it implies an

attitude of the court that is unreasonable, arbitrary, or unconscionable. Id. However, the

abuse of discretion standard is "heightened when reviewing decisions that forever deny a

plaintiff a review of a claim's merits," Jones v. Hartranft, 78 Ohio St.3d 368, 372 (1997),

because one of the tenets of Ohio jurisprudence is that "disposition of cases on their merits

is favored in the law." Id at 371. Notwithstanding the heightened scrutiny, dismissal with

prejudice is warranted when the conduct of a party is "'negligent, irresponsible,

contumacious or dilatory as to provide substantial grounds for a dismissal with prejudice for

a failure to prosecute or obey a court order.'" Quonset Hut at 48, quoting Tokles & Son,

Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 632 (1992).

       {¶ 14} Civ.R. 37 sets forth a trial court's authority to compel discovery and sanction

litigants for a failure to produce or permit discovery. Civ.R. 37(B)(1) provides:

              If a party * * * fails to obey an order to provide or permit
              discovery, including an order made under Civ.R. 35 or Civ.R.
              37(A), the court may issue further just orders. They may include
              the following:
              ***
              (e) Dismissing the action or proceeding in whole or in part;

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       {¶ 15} For dismissals with prejudice entered pursuant to Civ.R. 37(B)(1)(e), the

notice requirement of Crim.R. 41(B)(1) applies. Kirby, 2019-Ohio-1293 at ¶ 15, citing Ohio

Furniture Co., 22 Ohio St.3d at 101.

       {¶ 16} Contrary to appellants' argument, the trial court does not have to give actual

notice of its intention to dismiss with prejudice. Sazima v. Chalko, 86 Ohio St.3d 151, 155-

156 (1999). Instead, the requisite notice "'may be implied when reasonable under the

circumstances.'" Id. at 155, quoting Quonset Hut, 80 Ohio St.3d at 49. This is because,

the "purpose of notice is to give the party who is in jeopardy of having his or her action or

claim dismissed one last chance to comply with the order or to explain the default." Id. The

Quonset Hut court held that

              for purposes of Civ.R. 41(B)(1), counsel has notice of an
              impending dismissal with prejudice for failure to comply with a
              discovery order when counsel has been informed that dismissal
              is a possibility and has had a reasonable opportunity to defend
              against dismissal.

80 Ohio St. 3d at 49. Accordingly, the Quonset Hut court found that the plaintiff had

adequate notice under Civ.R. 41(B) when the defendant filed a motion to dismiss with

prejudice and the plaintiff did not take any later steps to correct the noncompliance. Id. at

48-49; compare with Sazima at 157 (Trial court abused its discretion dismissing for

noncompliance because the plaintiff belatedly complied with the outstanding court order

days before the trial court entered the dismissal.) As this court has explained, "implied

notice of a trial court's intention to dismiss exists when a party is on notice that the opposing

party has requested dismissal." Producers Credit Corp., 2003-Ohio-1067 at ¶ 19.

       {¶ 17} We find appellants had the requisite notice of dismissal with prejudice and did

nothing to correct the noncompliance. The trial court employed several measures to

produce compliance from appellants. Prior to dismissing appellants’ action, the trial court


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twice ordered appellants to provide discovery. The trial court denied appellees' initial

motions to dismiss with prejudice. Further, the trial court conducted hearings upon the

matter at which John Wightman, and his attorney, were present and afforded the opportunity

to explain appellants' failure to provide the discovery as ordered. In its second order to

compel discovery, the trial court expressly notified appellants that a failure to comply would

subject them to sanctions, including the dismissal of their action. Upon appellants' second

failure to comply, appellees again moved for sanctions specifically requesting dismissal with

prejudice. Appellants took no action to comply with or respond to the trial court's order, and

did not provide a response to appellees' motions.          Therefore, appellees' motions for

sanctions specifically requesting dismissal with prejudice and the trial court's warning that

a continued failure to comply with its order compelling discovery may result in dismissal

gave appellants adequate notice under Civ.R. 41(B). The trial court did not abuse its

discretion dismissing appellants' complaint with prejudice.

       {¶ 18} Next, appellants argue that the dismissal was too severe a sanction because

they had significantly complied with the discovery orders and any noncompliance was not

willful or in bad faith.

       {¶ 19} The record is silent as to why appellants failed to comply with the discovery

orders.     Appellants did not avail themselves of the opportunity to explain their

noncompliance by filing responses to the second iteration of appellees' motions for

sanctions. Additionally, appellants did not file transcripts for the two hearings on the matter,

during which they were also afforded an opportunity to explain their noncompliance.

       {¶ 20} In the absence of these transcripts, "the reviewing court has nothing to pass

upon and thus, as to those assigned errors, the court has no choice but to presume the

validity of the lower court's proceedings, and affirm." Knapp v. Edwards Laboratories, 61

Ohio St.2d 197, 199 (1980). Specifically, the trial court found that

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              [Appellants] have still not filed written notarized responses to the
              interrogatories submitted to them last year, have not filed a
              written response to the request for production of documents
              (although they have been submitting some to counsel
              periodically), have not obtained any tax records and have not
              provided any proof of wage loss and have not provided copies
              of recordings of conversations allegedly made with [appellee]
              Weade's representatives.

       {¶ 21} Thus, we must presume the regularity of the proceeding and that the trial court

had an adequate basis to both find that appellants repeatedly failed to comply with the

orders compelling discovery and dismiss appellants' complaint with prejudice.

       {¶ 22} The record establishes that the trial court had employed less severe

measures to produce compliance and appellants failed to comply with these orders for a

significant length of time. Furthermore, the fact that John Wightman was present with

counsel at the discovery compliance hearings belies appellants' argument that their failure

to comply with the discovery order was merely due to legal naivete and ignorance of the

discovery process. By his presence at the hearings, John Wightman was directly aware of

his need to comply with the discovery orders. His subsequent failure to comply, without

anything in the record to the contrary, can only be described as substantial negligence and

irresponsibility such that a dismissal with prejudice was warranted.          Additionally, Lori

Wightman's failure to appear at these hearings and failure to comply with the trial court's

orders showed a failure to prosecute and irresponsible conduct substantial enough to

warrant the dismissal with prejudice. Ultimately, as the Quonset Hut court explained,

"[t]here was no reason for the trial court to expect that one more warning would have

prompted [the plaintiff] to comply with the discovery order it had ignored for over four months

* * *." 80 Ohio St.3d at 49.

       {¶ 23} Therefore, the trial court did not abuse its discretion dismissing appellants'

cause of action with prejudice.      Accordingly, appellants' first assignment of error is


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overruled.

       {¶ 24} Assignment of Error No. 2:

       {¶ 25} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY OPENLY

COERCING PLAINTIFF IN ITS FINAL APPEALABLE ORDER THAT IT WILL ORDER

PLAINTIFF TO PAY DEFENDANTS' ATTORNEY FEES "SHOULD THIS JUDGMENT BE

REVERSED ON APPEAL."

       {¶ 26} In their second assignment of error, appellants argue the trial court's

statement about ordering payment of attorney fees should the cause be reversed and

remanded was an attempt to intimidate or coerce appellants into foregoing the appeal.

       {¶ 27} Despite the language employed by the trial court, which might be construed

as an effort to discourage an appeal, we understand the trial court to have merely

recognized the principle that "[u]pon remand from an appellate court, the lower court is

required to proceed from the point at which the error occurred." State ex rel. Stevenson v.

Murray, 69 Ohio St.2d 112, 113 (1982). In other words, the trial court was observing that

an award of attorney fees would be an unnecessary sanction in view of the dismissal of the

action, but should the order dismissing the matter be reversed on appeal, on remand the

trial court would consider the award of attorney fees that was pending at the time of

dismissal.

       {¶ 28} In any event, our resolution of appellants' first assignment of error necessarily

moots appellants' second assignment of error. As this court has previously explained,

"actions become moot when resolution of the issues presented is purely academic and will

have no practical effect on the legal relations between the parties." Schreyer v. Bd. of

Commrs. of Preble Cty., 12th Dist. Preble No. CA2012-12-018, 2013-Ohio-3087, ¶ 13.

Therefore, appellants' second assignment of error is overruled as moot.           See App.R.

12(A)(1)(c).

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                                                Fayette CA2019-04-006

{¶ 29} Judgment affirmed.


HENDRICKSON, P.J., and S. POWELL, J., concur.




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