[Cite as Collins v. Kirby, 2019-Ohio-1293.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




 JOSHUA COLLINS, ET AL.,                            :     CASE NO. CA2018-07-079

          Appellants,                               :           OPINION
                                                                 4/8/2019
                                                    :
   - vs -
                                                    :

 DENNIS KIRBY,                                      :

          Appellee.                                 :




         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                            Case No. 17CV090051



Patsfall, Yeager & Pflum, LLC, Stephen M. Yeager, 205 West Fourth Street, Suite 1280,
Cincinnati, OH 45202, for appellee

Law Offices of Jeffery E. Richards, Jeffery E. Richards, 147 Miami Street, P.O. Box 536,
Waynesville, OH 45068, for appellants



        M. POWELL, J.

        {¶ 1} Appellants, Joshua Collins and Tiffany Reising, appeal a decision of the

 Warren County Court of Common Pleas finding them in contempt of court and dismissing

 their complaint with prejudice.

        {¶ 2} On July 26, 2017, appellants filed a complaint against appellee, Dennis Kirby,

 alleging personal injuries arising from an automobile accident in July 2015. Kirby filed an
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answer and served interrogatories and a request for production of documents upon

appellants in August 2017. When appellants did not respond to the discovery requests,

Kirby's counsel emailed appellants' counsel in an effort to obtain responses.         When

appellants failed to respond, Kirby moved to compel discovery on December 7, 2017.

      {¶ 3} The case came before the trial court for a case management conference on

February 7, 2018. Kirby asserts that on that day, the trial court verbally granted his motion

to compel discovery and ordered appellants to respond to the discovery requests within 30

days. However, no entry or order was journalized granting the motion to compel. By

scheduling order filed on February 7, 2018, the trial court ordered the parties to complete

"all discovery" by December 31, 2018.

      {¶ 4} Subsequently, appellants provided certain records and responded to some of

the interrogatories. By emails sent to appellants' counsel in March and April 2018, Kirby's

counsel acknowledged receiving such records as well as appellants' handwritten

responses to some of the interrogatories. Kirby's counsel, advised, however, that the

responses were limited, incomplete, difficult to read, and unaffirmed. Kirby's counsel

further advised that no responses were provided to the request for production of

documents.

      {¶ 5} On May 23, 2018, Kirby moved the trial court to find appellants in contempt of

court for their failure to comply with the court's order to respond to Kirby's discovery

requests.   Alternatively, Kirby moved the trial court to dismiss appellants' complaint.

Appellants did not respond or otherwise oppose Kirby's motion. In an entry filed on July

16, 2018, the trial court granted Kirby's motion, found appellants in contempt of court, and

dismissed their complaint for want of prosecution.

      {¶ 6} Appellants now appeal, raising one assignment of error:

      {¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS IN

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ORDERING THAT THE COMPLAINT BE DISMISSED.

      {¶ 8} Appellants challenge the trial court's grant of Kirby's contempt motion on two

grounds. Appellants first argue the trial court erred in finding them in contempt of court

because there is no journalized court entry ordering appellants to provide discovery.

      {¶ 9} Contempt is defined in general terms as disobedience of a court order.

Dudley v. Dudley, 12th Dist. Butler No. CA2013-09-163, 2014-Ohio-3992, ¶ 21. A trial

court's authority to sanction a party for failure to obey discovery orders is governed by

Civ.R. 37(B)(1). Pursuant to Civ.R. 37(B)(1)(g), a trial court may sanction a party for failure

to obey an order to provide or permit discovery by "[t]reating as contempt of court the failure

to obey any orders except an order to submit to a physical or mental examination."

      {¶ 10} Kirby asserts that on February 7, 2018, the trial court verbally granted his

motion to compel discovery and ordered appellants to respond to the discovery requests

within 30 days. Several months later, Kirby moved the trial court to find appellants in

contempt, and the trial court ostensibly found appellants in contempt, for their failure to

comply with the trial court's February 7, 2018 order.

      {¶ 11} It is well-established that a court speaks only through its journal entries and

not by oral pronouncement or through decisions. Holbrook v. Holbrook, 12th Dist. Warren

No. CA2017-05-055, 2018-Ohio-2360, ¶ 12. See also State v. Smith, 12th Dist. Butler No.

CA2009-02-038, 2010-Ohio-1721 (without a journal entry, a decision or finding of a court

has no force or effect). Further, an entry is effective only when it has been journalized,

that is, when it has been reduced to writing, signed by a judge, and filed with the clerk so

that it may become a part of the permanent record of the court. Ginn v. Stonecreek Dental

Care, 12th Dist. Fayette No. CA2016-10-014, 2017-Ohio-4370, ¶ 39.

      {¶ 12} As stated above, the trial court's order purportedly granting Kirby's motion to

compel on February 7, 2018, was never journalized. It has therefore no force or effect.

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Because no order was journalized ordering appellants to provide discovery responses

within 30 days, there was no order violated by appellants. A trial court cannot find a party

in contempt for violating a court order when no court order exists. The trial court, therefore,

erred in finding appellants in contempt of court.

      {¶ 13} Appellants further argue the trial court erred in dismissing their complaint with

prejudice without first giving them notice of its intent to dismiss as required by Civ.R.

41(B)(1).

      {¶ 14} 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). Abuse of discretion implies an unreasonable, arbitrary, or unconscionable attitude

on the part of the trial court. Id.

      {¶ 15} Civ.R. 41(B)(1) provides that "where the plaintiff fails to prosecute or comply

with these rules or any court order, the court may, after notice to the plaintiff's counsel,

dismiss an action or claim." The notice requirement of Civ.R. 41(B)(1) "applies to all

dismissals with prejudice, including those entered pursuant to Civ.R. 37(B)[1][e] for failure

to comply with discovery orders." (Emphasis sic.) Ohio Furniture Co. v. Mindala, 22 Ohio

St. 3d 99, 101 (1986). The notice requirement of Civ.R. 41(B)(1) is satisfied "when counsel

has been informed that dismissal is a possibility and has had a reasonable opportunity to

defend against dismissal." Quonset Hut at 49. "[I]mplied 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. v. Voge, 12th Dist. Preble No. CA2002-06-009, 2003-

Ohio-1067, ¶ 19, citing Sazima v. Chalko, 86 Ohio St.3d 151 (1999); and Quonset Hut.

      {¶ 16} The trial court never gave actual notice of its intent to dismiss appellants'

complaint as required by Civ.R. 41(B)(1). Kirby asserts that because his contempt motion

also sought dismissal of appellants' complaint for failure to comply with the trial court's

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discovery order, appellants and their counsel were on notice that the case could be

dismissed with prejudice in compliance with Quonset Hut and Sazima. However, as stated

above, the trial court's purported order granting Kirby's motion to compel on February 7,

2018, and ordering appellants to provide discovery within 30 days was never journalized

and therefore has no force or effect. Consequently, there was no court order violated by

appellants to support the dismissal of their complaint pursuant to Civ.R. 37(B)(1)(e).

      {¶ 17} Moreover, we note that the trial court issued a scheduling order on February

7, 2018, requiring the parties to complete "all discovery" by December 31, 2018. There

were no provisions in the scheduling order that failure to complete all discovery before

December 31, 2018, may result in sanctions, including the dismissal of the case. Yet, the

trial court dismissed appellants' complaint as a sanction for failure to provide discovery five

months before all discovery was required to be completed. We further note that during the

proceedings below, Kirby acknowledged receiving certain records from appellants as well

as appellants' handwritten responses to some of the interrogatories.

      {¶ 18} In light of the foregoing, we find that the trial court abused its discretion in

dismissing appellants' complaint with prejudice.        Appellants' assignment of error is

sustained.

      {¶ 19} Judgment reversed and cause remanded for further proceedings consistent

with this opinion.


      HENDRICKSON, P.J., and PIPER, J., concur.




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