[Cite as Sullivant Holdings L.L.C. v. Virgenia, Inc., 2014-Ohio-2149.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Sullivant Holdings, L.L.C.,                           :

                 Plaintiff-Appellee,                  :

v.                                                    :                      No. 13AP-960
                                                                          (M.C. No. 13CVG-9266)
Virgenia, Inc. et al.,                                :
                                                                         (REGULAR CALENDAR)
                 Defendants-Appellees,                :

(Mohamed Fateh,                                       :

                 Defendant-Appellant).                :


                                          D E C I S I O N

                                       Rendered on May 20, 2014


                 Richard B. Parry, for appellant.

                        APPEAL from the Franklin County Municipal Court
CONNOR, J.
        {¶ 1} Defendant-appellant, Mohamed Fateh, appeals from a judgment of the
Franklin County Municipal Court, in favor of plaintiff-appellee, Sullivant Holdings, L.L.C.
For the reasons that follow, we affirm.
I. Facts and Procedural History
        {¶ 2} On March 20, 2013, appellee filed a "Complaint in Forcible Entry and
Detainer and Lease Default" in the Franklin County Municipal Court against several
defendants, including Virgenia, Inc. ("Virgenia"), Beverage Depot Plus, L.L.C.
("Beverage"), and appellant. The complaint alleges that Virgenia and its assigns and
subleases violated the terms of a commercial lease by failing to pay rent in accordance
with the agreement. The complaint seeks restitution of the leased premises located at
No. 13AP-960                                                                                             2


3600 Sullivant Avenue, Columbus, Ohio, and an award of monetary damages in the total
amount of $15,000.
         {¶ 3} None of the named defendants appeared at the initial eviction proceeding
and the trial court issued an order of restitution on April 15, 2013. Thereafter, on April 22,
2013, appellant and Beverage each filed a motion for relief from judgment and a motion
for leave to file an answer to the complaint. On May 23, 2013, the trial court denied the
motions filed by Beverage but granted appellant's motions.
         {¶ 4} On July 16, 2013, the trial court granted a default judgment against Virgenia
in the amount prayed for in the complaint. Thereafter, on August 5, 2013, Nedeem
Qurashi, counsel for the named defendants, moved the court to withdraw from the case.
The stated grounds for the motion to withdraw are that counsel had been unable to
contact his clients and that they had not honored the fee agreement. Qurashi served
appellant with a copy of the motion to withdraw by regular mail at 3600 Sullivant Avenue,
the leased premises. On that same date, appellee filed a motion to compel discovery
pursuant to Civ.R. 37.
         {¶ 5} On September 23, 2013, the trial court granted appellee's motion to compel
discovery and ordered Beverage and appellant to respond to the pending discovery
requests within 14 days thereof.           The trial court served the order upon appellant by
regular mail at 4498 Westerpool Circle, Columbus, Ohio 43228. The trial court
subsequently granted Qurashi's motion to withdraw on September 11, 2013. The trial
court served the entry upon appellant by regular mail at the Westerpool address.1
         {¶ 6} Appellee filed a motion for default judgment, pursuant to Civ.R. 37(B)(2)(c),
on October 13, 2013. Counsel for appellee served appellant with the motion by regular
mail at the Westerpool address. Neither appellant nor Beverage responded to the motion.
         {¶ 7} On October 29, 2013, the trial court issued an entry granting the motion for
default and entering judgment, jointly and severally, against all defendants in the amount
of $15,000, plus costs. Appellant timely appealed to this court.
    II. Assignment of Error
         {¶ 8} Appellant assigns the following sole assignment of error for our review:

1 The court notes that the only "Entry and Order" in the record is the one regarding Beverage. However, the
trial court did serve the entry on appellant at the Westerpool address.
No. 13AP-960                                                                               3


              THE TRIAL COURT ERRED IN GRANTING A DEFAULT
              JUDGMENT    FOR  THE   PLAINTIFF, SULLIVANT
              HOLDINGS LLC[.]

III. Standard of Review
       {¶ 9} Civ.R. 37(B)(2)(c) provides in relevant part:
              (2) If any party or an officer, director, or managing agent of a
              party or a person designated under Rule 30(B)(5) or Rule
              31(A) to testify on behalf of a party fails to obey an order to
              provide or permit discovery, including an order made under
              subdivision (A) of this rule and Rule 35, the court in which the
              action is pending may make such orders in regard to the
              failure as are just, and among others the following:

              ***

              (c) An order striking out pleadings or parts thereof, or staying
              further proceedings until the order is obeyed, or dismissing
              the action or proceeding or any part thereof, or rendering a
              judgment by default against the disobedient party[.]

(Emphasis added.)
       {¶ 10} A trial court has broad discretion when imposing discovery sanctions. Betz
v. Penske Truck Leasing Co., L.P., 10th Dist. No. 11AP-982, 2012-Ohio-3472, ¶ 11. An
appellate court shall review such rulings under an abuse of discretion standard. Id. citing
Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254 (1996), syllabus. " 'Under this standard
of review, we must affirm the trial court's action absent a showing that the trial court
acted unreasonably, unconscionable or arbitrarily.' " Watkins v. Holderman, 10th Dist.
No. 11AP-491, 2012-Ohio-1707, ¶ 14, quoting Stark v. Govt. Accounting Solutions, Inc.,
10th Dist. No. 08AP-987, 2009-Ohio-5201, ¶ 14.
IV. Legal Analysis
       {¶ 11} In appellant's sole assignment of error, appellant contends that the trial
court abused its discretion when it granted default judgment as a sanction for appellant's
failure to comply with an order compelling discovery. Appellant maintains that his trial
counsel abandoned him "at the eleventh hour at a critical point," and that his subsequent
failure to comply with the trial court order is excusable. (Appellant's brief, 8.) The record
does not support appellant's argument.
No. 13AP-960                                                                               4


       {¶ 12}   "A party '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.' "
Tymachko, D.O. v. Ohio Dept. of Mental Health, 10th Dist. No. 04AP-1285, 2005-Ohio-
3454, ¶ 15, quoting Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 49 (1997).
Indeed, "where the plaintiff fails to prosecute, or comply with these rules or any court
order, the court upon motion of a defendant or on its own motion may, after notice to the
plaintiff's counsel, dismiss an action or claim." Id.
       {¶ 13} Although the record corroborates appellant's claim that his former counsel
failed to serve him with a copy of the motion to withdraw, we note that the relevant local
rule does not require such service. See Loc.R. 3.02 of the Franklin County Municipal
Court. Rather, under the local rule, a motion to withdraw as counsel will not be
considered unless it contains "counsel's professional statement that, if allowed, a copy of
the entry will be mailed immediately to the last known address of the client." Loc.R.
3.02(2)(c) of the Franklin County Municipal Court. Appellant does not allege that his
former counsel failed to comply with the rule. Moreover, as noted above, the record
clearly demonstrates that the trial court served appellant with a copy of an entry granting
counsel's motion to withdraw.
       {¶ 14} Additionally, the record shows that the trial court served appellant with the
order compelling discovery and that appellee's counsel subsequently served appellant
with a copy of the motion for default judgment. Thus, the fact that appellant was not
served with the motion to withdraw does not excuse appellant's subsequent failure to take
any action either with regard to the trial court's order compelling discovery or appellee's
motion for default judgment. Appellant had prior notice that a default judgment was
possible due to his failure to comply with the trial court's discovery order and he had a
reasonable opportunity to defend against a default.
       {¶ 15} Default judgment may be employed as a sanction where a " parties' failure
to comply with a court order is due to willfulness, bad faith or any fault of the party." See
Watkins at ¶ 22. (Emphasis added.) However, " '[a] trial court is not required to use the
terms "willfulness or bad faith" in a dismissal order, so long as such behavior can be
No. 13AP-960                                                                            5


established from the record.' " Id. quoting Tymachko, at ¶ 14. In granting the motion for
default, the trial court stated:
               Defendants Beverage and Fateh have abandoned this
               litigation. They have lost contact with their lawyer (whom they
               failed to pay for his services) and they have failed or refused to
               participate in the discovery process.

               Under the circumstances, the court is of the opinion that
               judgment by default is appropriate in this case.

(Judgment Entry, 2.)
       {¶ 16} The trial court specifically found that appellant had "abandoned this
litigation."   The record establishes that appellant completely failed to respond to
appellee's request for production of documents and interrogatories; failed to respond to
appellee's motion to compel discovery; failed to comply with the trial court order
compelling appellant to provide discovery responses; and failed to oppose appellee's
motion for default. As noted above, appellant has provided no justifiable reason for his
complete failure to comply with the trial court's discovery order. See Exact Software N.
Am. v. Infocon, Inc., 479 F.Supp.2d 702, 711 (N.D.Ohio 2006), citing Bank One of
Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir.1990) (noting that entry of default
judgment is not an abuse of discretion where a party has the ability to comply with
discovery orders but fails to do so). Although appellant argues that he is but an employee
of Beverage and that there exists no legal basis for a personal judgment against him, the
record shows that appellant's own unexcused failure to comply with the trial court's
discovery order was the sole reason that the trial court did not reach the merits of
appellant's potential defenses. Under the circumstances, the trial court acted within its
discretion when it granted default judgment. Appellant's sole assignment of error is
overruled.
V. Conclusion
       {¶ 17} For the foregoing reasons, we hold that the trial court did not abuse its
discretion when it entered a default judgment against appellant as a sanction for
appellant's unexcused failure to comply with an order compelling discovery. Having
No. 13AP-960                                                                        6


overruled appellant's sole assignment of error, we affirm the judgment of the Franklin
County Municipal Court.
                                                                  Judgment affirmed.


                  SADLER, P.J. and LUPER SCHUSTER, J., concur.
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