      [Cite as Goodpaster v. Banker, 2016-Ohio-1077.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



GLENN GOODPASTER,                                 :     APPEAL NO. C-150031
                                                        TRIAL NO. A-1207115
     Plaintiff-Appellee,                          :

      vs.                                         :          O P I N I O N.

WILLIAM R. BANKER,                                :

     Defendant-Appellant,                         :

      and                                         :

U.S. BANCORP,                                     :

US BANK NATIONAL ASSOCIATION,                     :

ELAN FINANCIAL SERVICES,                          :

THE PARK NATIONAL BANK,                           :

      and                                         :

CARD MEMBER SERVICES,                             :

     Defendants.                                  :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: March 18, 2016


Blankenship Massey & Associates, PLLC, and Carl E. Grayson, for Plaintiff-
Appellee,

William R. Banker, pro se.

Please note: this case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS



CUNNINGHAM, Judge.
       {¶1}    Defendant-appellant William R. Banker appeals the trial court’s

entry granting plaintiff-appellee Glenn Goodpaster’s second motion for discovery

sanctions and granting a default judgment in favor of Goodpaster. Goodpaster had

brought suit against Banker and others for breach of fiduciary duty, conversion, and

fraud in the operation of a joint business venture, Laser Hair Rejuvenation, LLC.

       {¶2}    Banker ultimately brought a counterclaim raising three causes of

action against Goodpaster for breach of fiduciary duty, defamation, slander and

libel, and intentional interference with a business relationship. The trial court

granted Goodpaster’s motions for partial summary judgment, leaving only the

breach-of-fiduciary-duty counterclaim for further resolution.

       {¶3}    Banker   made      delayed   and   often   incomplete   responses    to

Goodpaster’s discovery requests. In May 2014, the trial court granted Goodpaster’s

motion to compel Banker’s production of documents and responses to

interrogatories. Banker complied only in part. On July 22, 2014, the trial court

granted Goodpaster’s motion for sanctions and admonished Banker that continued

noncompliance could result in further sanctions under Civ.R. 37(B).

       {¶4}    One month later, the trial court again directed Banker to produce the

requested documents, including bank records and tax returns, which would

demonstrate Banker’s receipt and use of funds from Goodpaster. Banker failed to

provide substantive responses to the court’s order.       Goodpaster filed a second

motion for discovery sanctions under Civ.R. 37 including the striking of Banker’s

answer and remaining counterclaim, and the entry of a default judgment on all

claims asserted against Banker.

       {¶5}    During this period, Banker continued to file numerous motions

seeking, for example, “correction of incorrect statements,” reconsideration of

summary judgment, and a “declaratory ruling.”



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶6}     On December 11, 2014, the trial court held a hearing on Goodpaster’s

motion for sanctions and a default judgment. Banker was present at the hearing

and argued against the granting of a default judgment. But the trial court, noting its

prior warning to Banker, found that he had persisted in violating the court’s

discovery orders.    As a sanction, the trial court declared that it would grant

Goodpaster’s motion in its entirety, including the entry of a default judgment.

       {¶7}     The trial court immediately proceeded to hold a hearing on damages.

Goodpaster testified on the measure of the damages incurred. During Goodpaster’s

examination by his own trial counsel, Banker, appearing pro se, asked the trial

court, “Do I question the witness now, ma’am?” The trial court responded, “No.

You don’t get to participate in this at all. Okay.”

       {¶8}     When Goodpaster had been excused, Banker inquired of the trial

court, “Judge, may I ask why don’t I get to question him at all?” The trial court

responded,

         Because you have a default judgment found against you. You don’t

         get to participate in the hearing. When you don’t – I told you this for

         the last year that this was going to happen, and you didn’t cooperate.

         And you got a default judgment against you. That’s the bottom line.

       {¶9}     The trial court journalized its entry granting a default judgment for

Goodpaster on January 6, 2015. Banker filed a notice of appeal on January 14.

Although Banker’s timely notice of appeal improperly designates the trial court’s

December oral announcement of its default-judgment decision as the order being

appealed from, this defect has not prejudiced Goodpaster. See App.R. 3(D); see also

Transam. Ins. Co. v. Nolan, 72 Ohio St.3d 320, 649 N.E.2d 1229 (1995), syllabus;

Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 257, 259, 436 N.E.2d

1034 (1982).    Goodpaster had notice of the appeal and ample opportunity to

respond. Accordingly, we address the merits of Banker’s assignments of error


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where possible. See Bowling v. Gordon Real Estate, LLC, 1st Dist. Hamilton Nos.

C-070377, C-070378 and C-070387, 2008 Ohio App. LEXIS 5913, *3-4 (Sep. 24,

2008).

         {¶10}   From Banker’s argument, we glean that in his first assignment of

error he alleges that the trial court erred in ruling on various contract claims when it

entered a default judgment. The alleged error is not demonstrated in this record as

neither Goodpaster’s amended complaint nor Banker’s counterclaim raised breach-

of-contract claims. The first assignment of error is overruled.

         {¶11}   In his second assignment of error, Banker argues that the trial court

“overreached” in granting a default judgment as a sanction for discovery violations,

and that the award of damages was not “accurate[] or justifiable.” We agree, in part.

         {¶12}   Civ.R. 37(B)(2)(c) provides that if a party fails to obey an order to

provide or permit discovery, the trial court “may make such orders in regard to the

failure as are just, [including] [a]n order * * * dismissing the action * * * or

rendering a judgment by default against the disobedient party.”          See Dater v.

Charles H. Dater Found., 1st Dist. Hamilton Nos. C-020675 and C-020784, 2003-

Ohio-7148, ¶ 36. Civ.R. 41(B)(1) also provides that where a party “fails to * * *

comply with * * * any court order, the court * * * may, after notice * * * dismiss an

action or claim.” See Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 518, 721

N.E.2d 1029 (2000).

         {¶13}   The decision to dismiss a case for repeated and willful discovery

violations is consigned to the discretion of the trial court. See Quonset Hut, Inc. v.

Ford Motor Co., 80 Ohio St.3d 46, 47, 684 N.E.2d 319 (1997). A trial court does not

abuse its discretion by ordering dismissal or granting a default judgment where the

record shows that the conduct of the sanctioned party was “so negligent,

irresponsible, contumacious or dilatory as to outweigh the policy that disposition of




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litigation should be upon its merits.” Evans v. Smith, 75 Ohio App.3d 160, 163, 598

N.E.2d 1287 (1st Dist.1991).

       {¶14}   The record submitted for our review is replete with evidence of

Banker’s refusal to comply with the trial court’s discovery orders within clearly

stated time periods, and without explanation. Coupled with his filing of numerous,

frivolous pretrial motions, these delays caused a substantial impediment to

discovery being completed and the case being set for trial. As early as July 2014,

months before the court ruled on Goodpaster’s motion for a default judgment, the

trial court found that Banker had failed to produce ordered discovery materials,

including documents and answers to written interrogatories.            The trial court

ordered Banker to fully comply within ten days. It warned Banker in the entry that

continued noncompliance could result in further sanctions under Civ.R. 37(B).

Nonetheless, Banker’s dilatory behavior continued.

       {¶15}   Banker’s flagrant and substantial disregard for discovery requests

and the trial court’s orders fully justified dismissal on procedural grounds. See

State ex rel. Shemo v. City of Mayfield Hts., 92 Ohio St.3d 324, 325, 750 N.E.2d 167

(2001). The trial court, therefore, did not abuse its discretion in granting a default

judgment against Banker on Goodpaster’s claims as a sanction under Civ.R. 37(B).

       {¶16}   But even though a party is in default, the plaintiff must still prove his

damages and the trial court must ascertain what damages are appropriate. See

Civ.R. 54(C) and 55(C); see also W2 Properties, LLC v. Haboush, 196 Ohio App.3d

194, 2011-Ohio-4231, 962 N.E.2d 858, ¶ 29 (1st Dist.).

       {¶17}   While the trial court has discretion in determining the measure of

the damages, and the method of proof of those damages, that discretion is not

unlimited. Even if a defendant is in default, he has a right to appear at the damages

hearing, to object to the introduction of evidence that is improper, and to participate

in the hearing to minimize the damages. The denial of this right is error. See Craft



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v. Craft, 63 Ohio App.3d 499, 500, 579 N.E.2d 289 (9th Dist.1989); see also

Prather v. Am. Med. Response, Inc., 9th Dist. Summit No. 20965, 2002-Ohio-5261,

¶ 16.

        {¶18}   Here, it is clear from the transcript of the proceedings of the

damages hearing that Banker had sought to participate in the hearing, and that the

trial court had erroneously denied him that opportunity.          See Craft at 500.

Therefore, the trial court’s damages decision was not supported by a sound

reasoning process, and was an abuse of its discretion. See AAAA Ents., Inc. v. River

Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). The second assignment error is sustained in part, and overruled in part.

        {¶19}   Banker’s third assignment of error, in which he argues that the trial

court erred in denying his “motion for declaratory ruling,” is overruled. Ohio’s

Declaratory Judgment Act, found in R.C. Chapter 2721, plainly “contemplate[s] a

distinct proceeding * * * initiated by the filing of a complaint,” or a counterclaim.

Fuller v. German Motor Sales, Inc., 51 Ohio App.3d 101, 103, 554 N.E.2d 139 (1st

Dist.1988). A “motion for declaratory ruling” is a legal chimera “inadequate to

invoke the jurisdiction of [a] court pursuant to R.C. Chapter 2721.” Id. Banker

failed to raise a claim for declaratory judgment in his counterclaim. He sought

declaratory relief solely by means of a motion. Therefore, he failed to invoke the

jurisdiction conferred by the act, and the trial court did not err in denying the

motion.

        {¶20}   The fourth assignment of error, in which Banker asserts that the trial

court erred in not granting a hearing on his claims for intentional infliction of

emotional distress, is overruled. Banker also failed to raise this cause of action in

his counterclaim.

        {¶21}   Having found that the trial court erred in denying Banker the

opportunity to participate in the damages hearing, we reverse the trial court’s award



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                     OHIO FIRST DISTRICT COURT OF APPEALS



of default-judgment damages. We remand this cause to the trial court for it to

conduct a damages hearing in accordance with law and this opinion. The trial

court’s judgment is affirmed in all other respects.

                                                                 Judgment accordingly.



FISCHER, P.J., and HENDON, J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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