[Cite as Kidwell v. White Picket Properties, L.L.C., 2020-Ohio-202.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



Josh Kidwell,                                           :

                 Plaintiff-Appellant,                   :
                                                                            No. 19AP-374
v.                                                      :                (M.C. No. 18CV-16495)

White Picket Properties, LLC et al.,                    :              (REGULAR CALENDAR)

                 Defendants-Appellees.                  :



                                          D E C I S I O N

                                     Rendered on January 23, 2020


                 On brief: Poynter Law Firm, LLC, and Angel V. Poynter, for
                 appellant. Argued: Angel V. Poynter.

                 On brief: Stephen H. Dodd, for appellees. Argued: Stephen
                 H. Dodd.

                        APPEAL from the Franklin County Municipal Court
SADLER, P.J.
         {¶ 1} Plaintiff-appellant, Josh Kidwell, appeals from a judgment of the Franklin
County Municipal Court dismissing his complaint against defendants-appellees, White
Picket Properties, LLC ("White Picket"), Duke Capital, Ltd. ("Duke"), and Alexander
Stewart, with prejudice. For the reasons which follow, we reverse the judgment of the trial
court.
I. FACTS AND PROCEDURAL HISTORY
         {¶ 2} On May 7, 2018, appellant filed a complaint for money damages against
White Picket and Duke.             The complaint asserted claims for breach of warranty of
habitability/rent abatement, constructive eviction, wrongful retention of security deposit,
No. 19AP-374                                                                                2


breach of contract, and false advertising. The complaint arose out of a landlord/tenant
relationship between the parties.
       {¶ 3} White Picket owned certain real property located at 3279 Earncliff Drive,
Columbus, Ohio ("the property"). Duke was the property manager for the property. On
March 9, 2018, appellant executed a lease agreement to rent the property for a two-year
period and began occupying the property.
       {¶ 4} Appellant alleged in the complaint that he returned home to the property on
March 29, 2018 to find a notice on the door stating "Danger Do Not Enter Unsafe to
Occupy." (Compl. at ¶ 15; Ex. D.) Appellant attached to the complaint a March 21, 2018
"Notice of Unsafe Building" White Picket received from the city of Columbus. (Compl., Ex.
B at 1.) The March 21, 2018 notice informed White Picket that the property had sustained
fire damage, was "unsafe and dangerous to human life," and was to remain vacant until it
was restored to a safe condition and received a certificate of occupancy. (Compl., Ex. B at
1.) Appellant alleged he was forced to vacate the property due to its uninhabitable
condition. In the fifth cause of action for false advertising, appellant asserted White Picket
and Duke had violated Section 43(a) of the federal Lanham Act by advertising the property
for rent.
       {¶ 5} On October 15, 2018, appellant filed a motion for leave to file an amended
complaint instanter, which the trial court granted. In the amended complaint, appellant
added Stewart as a defendant alleging that Stewart owned both White Picket and Duke.
Appellant amended the fifth cause of action by removing the reference to the Lanham Act
and, instead, asserting appellees violated the Ohio Deceptive Trade Practices Act
("ODTPA") by marketing the property for rent. Appellant attached additional exhibits to
the amended complaint, including a December 15, 2017 addendum to the contract of sale
for the property which stated the property was sold to White Picket "AS IS" and the seller
would "not be providing Buyer(s) with a * * * Certificate of Occupancy with respect to the
Property." (Emphasis sic.) (Am. Compl., Ex. G at 4.)
       {¶ 6} Appellant filed a motion for leave to file a second amended complaint on
November 14, 2018. In the proposed second amended complaint, appellant sought to
amend the fifth cause of action again by removing the reference to the ODTPA and, instead,
asserting appellees violated the Ohio Consumer Sales Practices Act by advertising the
No. 19AP-374                                                                                 3


property for rent. Appellees filed a memorandum contra appellant's motion for leave to file
a second amended complaint.
           {¶ 7} On November 20, 2018, appellant filed a motion to remove appellees' counsel
from the case. Appellant asserted appellees' counsel had violated Prof.Cond.R. 3.3 by
falsely informing the court that "[a]t the time of purchasing the house at issue, his clients
* * * had no idea that the house had no occupancy permit and had been declared
uninhabitable by the City of Columbus." (Mot. to Remove Counsel at 2.) Appellant also
alleged appellees' counsel "ha[d] a personal problem" with appellant's counsel. (Mot. to
Remove Counsel at 4.) Appellees filed a memorandum contra appellant's motion to remove
counsel.
           {¶ 8} The court overruled appellant's motion for leave to file a second amended
complaint on November 29, 2018. A pretrial hearing on the case was scheduled for
March 6, 2019.
           {¶ 9} Appellant filed a motion for leave to file a third amended complaint on
February 5, 2019. The motion stated appellant sought to amend the fifth cause of action
from "false advertising, to its more accurate form, fraudulent inducement." (Mot. for Leave
to File Third Am. Compl. at 2.) Appellees filed a memorandum contra appellant's motion
for leave to file a third amended complaint. On February 19, 2019, appellees filed a motion
seeking summary judgment on appellant's claim for false advertising under the ODTPA.
           {¶ 10} On March 7, 2019, the trial court issued an entry overruling both appellant's
motion to file a third amended complaint and appellees' motion for partial summary
judgment. Trial on the case was set for May 8, 2019.
           {¶ 11} On April 30, 2019, appellees filed a motion to continue the trial date.
Appellees noted in their motion for continuance that the court had "ordered [appellant's]
Counsel to send copies of her billing invoices to [appellees'] Counsel for review" a few
months prior and that appellant's counsel "ha[d] not provided those documents." (Mot. for
Continuance at 1, 2.)
           {¶ 12} On May 8, 2019, appellees' counsel reiterated on the record his desire to
continue the trial date. The court asked appellant's counsel if the court had "indicate[d] at
the" March 6, 2019 hearing1 "that invoices were to be provided?" (May 8, 2019 Tr. at 3.)

1   The record does not contain a transcript of the March 6, 2019 hearing.
No. 19AP-374                                                                                   4


Appellant's counsel responded that the court had told her if she "wanted * * * anything
added as damages, then [she] need[ed] to provide those to opposing counsel at [that] time."
(May 8, 2019 Tr. at 3.) However, appellant's counsel argued that "attorneys fees are to be
taxed as costs, not added as damages." (May 8, 2019 Tr. at 3.) Appellant's counsel also
noted that she did provide her billing invoices to appellees' counsel on May 6, 2019. The
court asked appellant's counsel why she waited so long to produce her billing invoices, and
appellant's counsel responded that "[o]pposing counsel hadn't pressed for them." (May 8,
2019 Tr. at 5.) The court indicated it was going to dismiss the case.
       {¶ 13} On May 10, 2019, the court issued an entry dismissing the complaint with
prejudice. The court noted that although it had "instructed" appellant's attorney "to
provide discovery documents * * * during a previous hearing on March 6th, 2019,"
appellant's attorney did not produce the documents "until May 6th, 2019, two days prior to
trial." (May 10, 2019 Entry at 1.) The court further noted appellant had amended his
complaint, sought leave to file a second and a third amended complaint, and filed a motion
to remove appellees' counsel. As such, the court concluded appellant had "occasioned
numerous delays preventing this case from going forward to trial." (May 10, 2019 Entry at
2.)
II. ASSIGNMENT OF ERROR
       {¶ 14} Appellant presents the following sole assignment of error for our review:
              The trial court erred by dismissing Plaintiff-Appellant's
              complaint, with prejudice.
III. ANALYSIS
       {¶ 15} Appellant argues the trial court erred by failing to follow Civ.R. 41(B) in
dismissing the case.     The court's stated reasons for dismissing the complaint were
appellant's counsel's failure to timely produce her billing invoices and delays appellant
caused in the proceedings.
       {¶ 16} Civ.R. 41(B)(1) authorizes trial courts, "after notice to the plaintiff's counsel,"
to dismiss an action or claim "[w]here the plaintiff fails to * * * comply with these rules or
any court order." The decision to dismiss a case pursuant to Civ.R. 41(B)(1) is within the
sound discretion of the trial court. Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46,
47 (1997); Geico Cas. Ins. Co. v. Durant-Baker, 10th Dist. No. 13AP-573, 2014-Ohio-1530,
¶ 7. However, " 'judicial discretion must be carefully -- and cautiously -- exercised before
No. 19AP-374                                                                                5


this court will uphold an outright dismissal of a case on purely procedural grounds.' "
Quonset Hut at 48, quoting DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 192 (1982).
Accord Sazima v. Chalko, 86 Ohio St.3d 151, 158 (1999), quoting Jones v. Hartranft, 78
Ohio St.3d 368, 372 (1997) (observing the " ' "abuse of discretion" standard of review for
dismissals with prejudice * * * is actually heightened' ").
       {¶ 17} As the plain language of the rule demonstrates, the dismissal of a complaint
pursuant to Civ.R. 41(B)(1) "requires prior notice to plaintiff's counsel." Levy v. Morrissey,
25 Ohio St.3d 367, 368 (1986), citing Svoboda v. Brunswick, 6 Ohio St.3d 348 (1983). A
trial court abuses its discretion by dismissing an action pursuant to Civ.R. 41(B)(1) " 'where
notice was not given to the plaintiff, or to plaintiff's counsel, prior to dismissal that the
action would be dismissed.' " Levy at 368, quoting Svodboda at 350. Accord Triplett v.
Columbus, 10th Dist. No. 94APE04-596 (Nov. 17, 1994) (holding the "[f]ailure to provide
actual notice" pursuant to Civ.R. 41(B) "is not harmless error").
       {¶ 18} Civ.R. 37(A) permits a party to file a motion for an order compelling
discovery. Civ.R. 37(B) authorizes a court to impose a variety of sanctions if a party "fails
to obey an order to provide or permit discovery." Civ.R. 37(B)(1). Possible sanctions
include striking pleadings or dismissing the action in whole or in part. Civ.R. 37(B)(1)(a)
through (g). "The selection of an appropriate sanction [under Civ.R. 37(B)] is a matter
committed to the discretion of the trial court." Bank One, Columbus NA v. O'Brien, 10th
Dist. No. 91AP-165 (Dec. 31, 1991). However, "the court must be particularly careful when
it imposes the harsh remedies of dismissal and default," as "Ohio law favors the disposition
of cases on their merits." Id., citing Toney v. Berkemer, 6 Ohio St.3d 455 (1983), syllabus.
       {¶ 19} The Supreme Court of Ohio has held that the "notice requirement of Civ.R.
41(B)(1) applies to all dismissals with prejudice, including those entered pursuant to Civ.R.
37(B)(2)(c) [prior version of Civ.R. 37(B)(1)] for failure to comply with discovery orders."
(Emphasis sic.) Ohio Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101 (1986). Accord Bank
One, Columbus NA (observing that "[w]hen the sanction chosen by the trial court is a
dismissal with prejudice pursuant to Civ.R. 37(B)(2)(c) the Supreme Court has imposed an
additional hurdle, requiring that the court give the non-complying party advance notice of
its intention to dismiss the action"). "A dismissal on the merits is a harsh remedy that calls
for the due process guarantee of prior notice." Ohio Furniture Co. at 101. Thus, the court
No. 19AP-374                                                                                  6


in Ohio Furniture Co. held that Civ.R. 41(B) and 37(B) "should be read in pari materia with
regard to dismissals with prejudice." (Emphasis sic.) Id. at 101.
       {¶ 20} "[F]or 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." Quonset Hut at 49. Indeed, the " 'purpose of notice' " under Civ.R. 41(B)
"is to 'provide the party in default an opportunity to explain the default or to correct it, or
to explain why the case should not be dismissed with prejudice.' " Id. at 48, quoting
Logsdon v. Nichols, 72 Ohio St.3d 124, 128 (1995). Accord Ohio Furniture Co. at 101
(stating the notice of intention to dismiss a case with prejudice "gives the non-complying
party one last chance to obey the court order in full"); Asres v. Dalton, 10th Dist. No. 05AP-
632, 2006-Ohio-507, ¶ 14, citing Metcalf v. Ohio State Univ. Hosps., 2 Ohio App.3d 166,
167 (10th Dist.1981). See Sazima at 155, citing Quonset Hut at 48-49 (concluding "the fact
that the defendant had filed a motion requesting the court to dismiss plaintiff's claim with
prejudice constituted sufficient implied notice for purposes of Civ.R. 41(B)(1)").
       {¶ 21} The record fails to demonstrate the trial court provided either appellant or
appellant's counsel with notice of the court's intention to dismiss the complaint sua sponte.
By failing to provide such notice, the court deprived appellant of the opportunity to correct
its default or explain why the case should not be dismissed with prejudice. Accordingly,
even if appellant's counsel caused delays in the proceedings, the court committed reversible
error by dismissing the case without providing advance notice of its intention to dismiss the
case. Geico Cas. Ins. Co. at ¶ 9 (observing that, "despite plaintiff's arguably dilatory conduct
prior to the granting of the motion to dismiss, the trial court committed reversible error by
failing to afford plaintiff notice of the possibility of dismissal").
       {¶ 22} The court noted in its May 10, 2019 entry that it had "instructed" appellant's
counsel to provide discovery documents to appellees' counsel at the March 6, 2019 hearing.
(May 10, 2019 Entry at 1.) The record, however, does not contain any order compelling
appellant to produce discovery documents. See Infinite Sec. Solutions, L.L.C. v. Karam
Props. II, 143 Ohio St.3d 346, 2015-Ohio-1101, ¶ 29 (holding that "a court speaks only
through its journal entries"). The sanctions identified in Civ.R. 37(B) "are provided for in
the instance where a party fails to adhere to a court order. [Thus], a court order is a
No. 19AP-374                                                                               7


prerequisite to the imposition of sanctions." Davis v. Byers Circle Invest. Inc., 10th Dist.
No. 89AP-878 (Mar. 29, 1990). Accord Rains v. Dreisbach, 10th Dist. No. 94APE04-494
(Dec. 22, 1994) (noting that, "[g]enerally, there must first be a motion for an order
compelling discovery which is then violated before a party may seek sanctions for failure to
make discovery"); Johnson Controls v. Cadle Co., 11th Dist. No. 2006-T-0030, 2007-Ohio-
3382, ¶ 22, 25. The Staff Notes to Civ.R. 37 note that, although "[n]ormally the discovery
rules * * * do not require court orders," Rule 37(B) differs as it "applies to situations in
which the court has made an order under Rule 37(A) or Rule 35 and a person or party has
not complied with the order."
       {¶ 23} As the trial court never issued an order compelling appellant to produce
discovery, the court could not sanction appellant for failing to comply with a court order to
provide discovery. Moreover, the record indicates appellant's counsel provided opposing
counsel with her billing invoices, albeit two days prior to the scheduled trial date. Compare
Sazima at 157 (observing that "once plaintiff's counsel has responded to the notice given
pursuant to Civ.R. 41(B)(1) by complying with the trial court's outstanding order, the trial
court may not thereafter dismiss the action or claim on the basis of noncompliance with
that order").
       {¶ 24} Accordingly, for the reasons stated, we agree with appellant that the trial
court erred in dismissing the complaint without providing the advanced notice required by
Civ.R. 41(B). Therefore, appellant's assignment of error is sustained.
IV. CONCLUSION
       {¶ 25} Having sustained appellant's sole assignment of error, the judgment of the
Franklin County Municipal Court is reversed.
                                                                         Judgment reversed;
                                                                           cause remanded.
                       KLATT and LUPER SCHUSTER, JJ., concur.
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