[Cite as 533 Short North, L.L.C. v. Zwerin, 2017-Ohio-9194.]
                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


533 Short North LLC et al.,                          :

                 Plaintiffs-Appellants,              :              No. 16AP-490
                                                                 (C.P.C. No. 13CV-2253)
v.                                                   :
                                                               (REGULAR CALENDAR)
Victoria Marie Zwerin et al.,                        :

                 Defendants-Appellees.               :




                                         D E C I S I O N

                                   Rendered on December 21, 2017


                 On brief: Law Offices of James P. Connors, and James P.
                 Connors, for appellants. Argued: James P. Connors.

                 On brief: James E. Arnold & Associates, LPA, Gerhardt A.
                 Gosnell, II, James E. Arnold, and Julia A. Davis, for
                 appellees. Argued: Gerhardt A. Gosnell, II.

                  APPEAL from the Franklin County Court of Common Pleas

PER CURIAM.
        {¶ 1} Plaintiffs-appellants, 533 Short North LLC ("533 Short North LLC"),
Christopher J. Corso, Michael Gallicchio, and Jennifer Pepper, appeal a judgment of the
Franklin County Court of Common Pleas that granted the motion to dismiss filed by
defendants-appellees, Victoria Marie Zwerin, Grant William Dziak, Michael Quinn,
Sarah L. Loveridge, Ashley F. Evans, Joseph Michael Harvey, Brett Fidram, Scott Hetrick,
Savannah Lennon, Brenda L. Winters, Lisa A. DeVine, Joseph A. Shuster, Tiffany Rae
Good, James Curtis VanMeter, Frank Parrish, Andrew R. Frisch, and Morgan & Morgan
PA.
No. 16AP-490                                                                               2

       {¶ 2} We previously set forth the facts of this protracted litigation in detail in 533
Short North, LLC v. Zwerin, 10th Dist. No. 14AP-1016, 2015-Ohio-4040 ("533 Short N."),
and the following factual summary includes a slightly abbreviated version of the facts
from that decision. 533 Short North LLC is the owner of a chain of bars in Columbus,
Ohio. Zwerin is a former employee of 533 Short North LLC. In 2010, Zwerin filed an
action in the United States District Court for the Southern District of Ohio against 533
Short North LLC and individuals who either worked for or had an interest in 533 Short
North LLC (hereinafter collectively referred to as "533 Short North"), alleging that 533
Short North's tipping practices violated federal and state wage and hour laws. Frisch, an
attorney with Morgan & Morgan, PA, represented Zwerin. Subsequently, some of Zwerin's
co-employees opted into the collective action sought by Zwerin.
       {¶ 3} In late 2011, the parties entered into a monetary settlement that included a
confidentiality provision that precluded Zwerin from disclosing the terms of the
settlement.
       {¶ 4} On May 25, 2012, Zwerin electronically filed a motion seeking the district
court's approval of the settlement agreement. Zwerin appended to her motion a copy of
the parties' settlement agreement. 533 Short North immediately objected to the filing of
the settlement agreement on the publicly accessible docket system. Zwerin withdrew the
motion and exhibits, but the motion was not removed from the database until four days
later due to an intervening weekend and holiday. The district court subsequently
approved the settlement agreement.
       {¶ 5} On May 30, 2012, the Columbus Dispatch published on its website an article
about Zwerin's claims and the settlement. The same article appeared in the print version
of the Columbus Dispatch the next day. The article included statements attributed to
Frisch and two opt-in plaintiffs that included information that appellees believed violated
the confidentiality agreement. On the same day the Columbus Dispatch published the
print version of the article, the website "Breakinglawsuitnews.com" posted a story about
the parties' settlement that included much of the same information as the Columbus
Dispatch article. Approximately two weeks later, the website "Openforum.com" posted an
article that reported information that appellees believe violated the confidentiality
agreement. Frisch also described Zwerin's suit and posted a link to the Columbus
Dispatch article on a blog that he maintains.
No. 16AP-490                                                                             3

       {¶ 6} On August 24, 2012, Zwerin filed a motion for certification of the settlement
class and final approval of the settlement. 533 Short North did not oppose the motion and
did not raise any objections at the hearing on the motion. On August 31, 2012, the district
court granted Zwerin's motion, certified the settlement class, approved the settlement
agreement, and dismissed the case.
       {¶ 7} After failing to make the settlement payment due September 10, 2012, 533
Short North filed a motion seeking dismissal of the action with prejudice and imposition
of sanctions against Zwerin and the settlement class based on alleged confidentiality
agreement breaches. On September 27, 2012, the class plaintiffs filed a memorandum in
opposition to 533 Short North's motion to dismiss, to which they attached the settlement
agreement as an exhibit. The alleged breaches in 533 Short North's motion to dismiss
included: (1) the May 25, 2012 filing of the settlement agreement as an exhibit to the
motion seeking preliminary approval of the agreement, (2) the Columbus Dispatch article,
and (3) the September 27, 2012 filing of the settlement agreement as an exhibit to the
class plaintiffs' memorandum in opposition to 533 Short North's motion to dismiss.
       {¶ 8} On November 2, 2012, the district court denied 533 Short North's motion
and ordered 533 Short North to comply with the settlement agreement, finding that, with
regard to the first two breaches, 533 Short North waived any right to invoke the court's
action related to them based on estoppel by acquiescence due to the failure of 533 Short
North to object to the breaches prior to the court's approval of the parties' confidential
settlement agreement in August 2012, three months after the alleged breaches. With
regard to the third breach, the court found the class plaintiffs had filed the settlement
agreement mistakenly believing it was no longer confidential because it had become the
subject of further litigation and, regardless, the clerk removed the settlement agreement
from the docket and placed it under seal.
       {¶ 9} 533 Short North continued to withhold the settlement payment, claiming
the class plaintiffs had breached the confidentiality agreements, and the class plaintiffs
moved to compel payment. On November 20, 2012, the district court found it had already
held in the November 2, 2012 order that 533 Short North waived any right it had to its
breach claims. 533 Short North appealed to the Sixth Circuit Court of Appeals.
       {¶ 10} While that appeal was pending, 533 Short North filed the present action,
seeking damages, as well as injunctive and declaratory relief, based on the alleged
No. 16AP-490                                                                               4

breaches of the confidentiality agreement. Appellees filed a Civ.R. 12(B)(6) motion to
dismiss, arguing the doctrine of issue preclusion precluded the action because the district
court had already found 533 Short North had waived its right to relief for any breaches of
confidentiality that occurred prior to final approval of the settlement agreement. The trial
court agreed, and it converted appellees' motion to dismiss into a motion for summary
judgment.
       {¶ 11} On June 10, 2014, the Sixth Circuit Court of Appeals affirmed the district
court's decision, finding 533 Short North failed to alert the district court to the first two
alleged breaches, and, with regard to the third alleged breach, the district court did not
abuse its discretion by providing tailored relief in the form of an order to the clerk to
remove the document from the docket and place it under seal. The Sixth Circuit further
concluded that, because 533 Short North could pursue a state court action for breach of
the settlement agreement's confidential provisions, the district court was not required to
set aside its judgment.
       {¶ 12} On November 10, 2014, the trial court granted appellees' converted motion
for summary judgment. The trial court found the issue of whether 533 Short North waived
its right to object to appellees' alleged breaches of the confidentiality agreements had been
litigated and determined by the federal district and appellate courts, and the issue could
not be relitigated.
       {¶ 13} 533 Short North appealed the judgment, and this court affirmed in part and
reversed in part the trial court's decision in 533 Short N. We found the trial court
properly found issue preclusion barred the relitigation of whether 533 Short North waived
its right to relief for alleged breaches of confidentiality that occurred prior to the final
approval of a settlement agreement, but to the extent that any alleged breaches happened
after the approval of the settlement agreement, collateral estoppel did not apply.
Therefore, we remanded the matter to the trial court to determine whether—in addition to
the post-settlement agreement breach in the September 27, 2012 electronic court filing—
there were alleged breaches that occurred after the settlement agreement.
       {¶ 14} On remand, on December 9, 2015, the trial court held a status conference,
and, on December 11, 2015, the court issued an entry journalizing the status conference.
In the entry, the trial court ordered mediation. The court also ordered that if the matter
was not resolved through mediation "[533 Short North] will file an Amended Complaint
No. 16AP-490                                                                             5

narrowing the issues remaining to be litigated," within 30 days of the mediation date,
December 23, 2015. The matter did not settle, but 533 Short North failed to file an
amended complaint.
       {¶ 15} On January 27, 2016, the trial court issued another entry, in which it quoted
the language of the December 11, 2015 entry and noted that 533 Short North had not yet
filed an amended complaint. The court ordered that "[p]laintiffs shall have 14 days
from the date of this Order within which to file their Amended Complaint."
(Emphasis sic.) 533 Short North again failed to file an amended complaint within the
time given by the trial court.
       {¶ 16} On March 25, 2016, 533 Short North filed a motion for default judgment,
asserting no defendants had filed an answer to the original complaint.
       {¶ 17} On April 4, 2016, appellees filed a motion to dismiss, arguing that 533 Short
North had failed to comply with the court's two orders to file an amended complaint. On
April 6, 2016, 533 Short North filed a memorandum contra motion to dismiss in which it
claimed that neither of the trial court's entries ordered or required it to file an amended
complaint but merely provided it an opportunity to file an amended complaint should it
choose to do so, but 533 Short North saw no need to amend its complaint.
       {¶ 18} On April 19, 2016, the parties attended a status conference at which 533
Short North again indicated that it did not see a need to amend its complaint and was not
going to amend its complaint. The trial court issued a journal entry on that date,
indicating the parties shall have seven days from the date of the entry to file any
additional responses or memoranda to the pending motions.
       {¶ 19} On April 20, 2016, 533 Short North filed a motion for leave to amend the
complaint instanter. 533 Short North acknowledged it did not believe it needed to amend
its complaint but was doing so to move the case forward. Attached to the memorandum in
support of the motion for leave to amend was an affidavit submitted by counsel for 533
Short North, in which he detailed his refusal to amend the complaint, claimed the court
orders never actually ordered him to amend the complaint, and explained he never
requested to amend the complaint.
       {¶ 20} On July 1, 2016, the trial court issued a decision and entry denying 533
Short North's March 25, 2016 motion for default judgment; granting appellees' April 4,
2016 motion to dismiss, and denying 533 Short North's April 20, 2016 motion for leave to
No. 16AP-490                                                                              6

amend complaint instanter. The trial court found 533 Short North intentionally defied the
two orders to file an amended complaint narrowing down the issues to remain litigated,
and the amended complaint submitted with the motion for leave actually expanded and
added to the original complaint allegations that did not identify when the other alleged
breaches took place. The court also took issue with 533 Short North's filing of the motion
for default judgment with regard to the original complaint, when the trial court had
clearly ordered 533 Short North to file an amended complaint. The court rejected 533
Short North's contention that it could not narrow the issues until appellees provided an
answer or discovery, given 533 Short North filed the complaint and should be aware of
when the other alleged breaches raised in the complaint occurred. The court concluded
that dismissal with prejudice, pursuant to Civ.R. 41(B), was appropriate given 533 Short
North's deliberate and dilatory actions. 533 Short North appeals the judgment of the trial
court, asserting the following assignments of error:
              [I.] The trial court erred by granting defendants' Motion to
              Dismiss pursuant to Civ.R. 41(B) on remand from the first
              appeal in 533 Short North LLC v. Zwerin, 2015-Ohio-4040,
              14AP-1016 for failing to obey a court order.

              [II.] The trial court erred by denying plaintiffs' Motion for
              Leave to Amend Complaint Instanter.

              [III.] The trial court erred by denying plaintiffs' Motion for
              Default Judgment.

       {¶ 21} We address all of 533 Short North's assignments of error together. 533
Short North argues in its first assignment of error the trial court erred when it granted
appellees' motion to dismiss, pursuant to Civ.R. 41(B)(1), on remand from the first appeal
for failing to obey a court order. 533 Short North argues in its second assignment of error
the trial court erred when it denied its motion for leave to amend complaint instanter.
533 Short North argues in its third assignment of error the trial court erred when it
denied its motion for default judgment. A dismissal under Civ.R. 41(B)(1) "operates as an
adjudication upon the merits unless the court, in its order for dismissal, otherwise
specifies." Civ.R. 41(B)(3). In reviewing a dismissal, pursuant to Civ.R. 41(B)(1), the
Supreme Court of Ohio has found: "The decision to dismiss a complaint for failure to
prosecute is within the sound discretion of the trial court, and an appellate court's review
of such a dismissal is confined solely to the question of whether the trial court abused its
No. 16AP-490                                                                                7

discretion." Jones v. Hartranft, 78 Ohio St.3d 368, 371 (1997), citing Pembaur v. Leis, 1
Ohio St.3d 89, 91 (1982). The court cautioned that "although reviewing courts espouse an
ordinary 'abuse of discretion' standard of review for dismissals with prejudice, that
standard is actually heightened when reviewing decisions that forever deny a plaintiff a
review of a claim's merits." Id. Proper factors for consideration in a Civ.R. 41(B)(1)
dismissal with prejudice include the drawn-out history of the litigation and evidence that
a plaintiff is deliberately proceeding in dilatory fashion." Id. Thus, "[w]hile a heightened
scrutiny is utilized when reviewing a dismissal with prejudice, the action of the trial court
will be affirmed when the conduct of a party is so 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." (Internal quotations and citations omitted.) Harris v.
Harris, 10th Dist. No. 98AP-1077 (June 24, 1999).
       {¶ 22} As explained above, Civ.R. 41(B)(1) allows for dismissal "after notice to the
plaintiff's counsel." "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." Sazima v. Chalko, 86 Ohio St.3d 151, 158 (1999). The notice given pursuant
to Civ.R. 41(B)(1) need not be actual notice. Id. at 155-56. Rather, notice will be implied
when counsel has been informed that dismissal is a possibility and has had a reasonable
opportunity to defend against dismissal. Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio
St.3d 46 (1997), syllabus. Thus, appellate review of a dismissal for failure to prosecute
involves two assessments: first, whether the plaintiff was provided with sufficient notice
prior to the dismissal, and second, whether the dismissal constituted an abuse of
discretion. Williams v. RPA Dev. Corp., 10th Dist. No. 07AP-881, 2008-Ohio-2695, ¶ 8.
       {¶ 23} In the present case, 533 Short North first argues it was not until the
April 19, 2016 status conference that it became apparent the trial court wanted it to file an
amended complaint, and it immediately responded by filing an amended complaint on
April 20, 2016. 533 Short North asserts the trial court was upset with this court's decision
in 533 Short N., and such was not a reasonable basis to dismiss the case on remand. 533
Short North claims it did not disobey any court orders and fully complied once the court
notified it what it wanted. It then claims there was nothing for it to modify in terms of its
complaint because those allegations constituted the extent of its knowledge at the time,
and its efforts to explain this to the trial court fell on "deaf ears." 533 Short North claims
No. 16AP-490                                                                              8

there were less drastic remedies available instead of dismissal, including reprimand,
contempt, barring the attorney from representing the party, and dismissal without
prejudice. 533 Short North contends the trial court gave it no notice of what was
necessary to avoid dismissal.
       {¶ 24} Even considering our heightened abuse-of-discretion standard, we find the
trial court did not abuse its discretion. 533 Short North's contentions are unconvincing.
As recited above, in the trial court's December 11, 2015 entry journalizing status
conference, the court ordered that if the matter was not resolved through mediation,
"[533 Short North] will file an Amended Complaint narrowing the issues remaining to be
litigated," within 30 days of the mediation date, December 23, 2015. This language is
explicit and clear. On January 27, 2016, the trial court issued another entry, in which it
quoted the above explicit language from the December 11, 2015 entry and ordered that
"[p]laintiffs shall have 14 days from the date of this Order within which to file their
Amended Complaint." (Emphasis sic.) When the language of the December 11, 2015 and
January 27, 2016 entries are read separately and together, it is unmistakable that the trial
court was ordering 533 Short North to file an amended complaint. 533 Short North's
claim in its April 6, 2016 memorandum contra motion to dismiss that neither of the trial
court's entries required it to file an amended complaint was unsupportable in light of the
clear language utilized.
       {¶ 25} Perhaps more telling as to 533 Short North's true state of mind was the
belief it espoused in its memorandum contra that it saw no need to amend its complaint.
This same posture was reiterated to the trial court at the April 19, 2016 status conference,
and, in fact, 533 Short North indicated to the trial court it would not amend the
complaint. Similarly, in 533 Short North's April 20, 2016 motion for leave to amend the
complaint instanter, 533 Short North again stated it did not believe it needed to amend its
complaint but was doing so to move the case forward. To further drive home its belief, in
the memorandum in support of the motion for leave to amend, counsel for 533 Short
North submitted an affidavit, in which he detailed his refusal to amend the complaint and
reiterated the claim that court orders never actually ordered him to amend the complaint.
Thus, it appears 533 Short North failed to amend its complaint not because it did not
believe it was ordered to do so but, instead, because it did not believe there was a need to
No. 16AP-490                                                                                 9

do so. However, 533 Short North's belief was irrelevant, given the trial court's clear
mandate to file an amended complaint.
       {¶ 26} Although 533 Short North contends dismissal was harsh and extreme—
claiming the trial court was upset with this court for reversing its earlier judgment—our
reading of the record, instead, suggests the trial court was frustrated by 533 Short North's
repeated refusal to file an amended complaint narrowing the issues remaining before the
court despite two orders to do so. The trial court noted in its July 1, 2016 judgment that,
although 533 Short North indicated at the status conference it saw no need to amend the
complaint and would not do so, in the interest of fairness, it issued the April 19, 2016
entry giving the parties an additional seven days to respond to pending motions. 533
Short North then filed a motion for leave to amend complaint on April 20, 2016, but the
trial court found the proposed amended complaint was deficient. The court found the
proposed amended complaint did not narrow the issues but, instead, reiterated nearly all
of the same language from the original complaint and then added new allegations. The
court believed 533 Short North's four-month refusal to abide by court orders, while also
attempting to file an amended complaint that disregarded the court's order to narrow the
issues remaining to be litigated, demonstrated deliberate dilatory behavior. The trial
court's findings, in this respect, are clear and we find they were not an abuse of discretion.
       {¶ 27} Furthermore, 533 Short North argues if the trial court was confused about
what claims remained on remand, a less drastic resolution could have been reached other
than dismissal, such as allowing additional motions or holding a status conference. This
argument is without merit. Status conferences were held. Entries were issued. Appellees
filed a motion to dismiss. The trial court was explicit about what it wanted clarified in an
amended complaint. The trial court explained this court reversed its prior decision
because there was a lack of information in the complaint about the timing of some of the
alleged breaches, and the trial court wanted 533 Short North to amend the complaint to
identify any alleged breaches that occurred after the approval of the settlement
agreement. Despite the status conferences, the court entries, and appellees' motion to
dismiss, 533 Short North still refused to amend its complaint. In its judgment, the trial
court acknowledged the harshness of dismissal and noted the long-standing Ohio
precedent that establishes a preference for resolving matters on their merits but
determined 533 Short North's persistent refusal to obey the court's order and deliberate
No. 16AP-490                                                                            10

dilatory actions constituted substantial grounds for dismissal with prejudice. We find no
error, and reject 533 Short North's argument in this respect.
       {¶ 28} With regard to 533 Short North's third assignment of error that asserts the
trial court erred when it denied its motion for default judgment, it must be apparent at
this juncture that we find no error in the trial court's denial of the motion. Although 533
Short North contends the trial court did not discuss the merits of the motion in its
judgment, the trial court did, in fact, address the motion. The court indicated in its
judgment:
              For over four months, Plaintiffs refused to file an Amended
              Complaint and represented to the Court that they did not feel
              that an amendment was needed. They went so far as to file a
              Motion for Default Judgment, arguing such relief was
              appropriate because Defendants had not yet answered
              Plaintiffs['] original Complaint, when the Court's orders made
              it clear that Plaintiffs needed to first file an Amended
              Complaint and then Defendants would file an Answer to the
              Amended Complaint.

              Plaintiffs' argument that they could not narrow down the
              issues to be litigated when there has been no Answer and no
              discovery is not well taken. Plaintiffs are the ones bringing
              this suit * * *. [I]t is Plaintiffs who would possess that
              information as to when those alleged breaches took place, and
              there is no need for Defendants to first file an Answer or even
              engage in discovery for Plaintiffs to identify when those
              alleged breaches took place.

Thus, the court's reason for denying 533 Short North's motion for default judgment was
clear: The court found default for failure to file an answer was improper because 533
Short North had failed to file an amended complaint in conformity with the court's prior
demands. Therefore, we find this argument without merit. For all the foregoing reasons,
we overrule 533 Short North's first, second, and third assignments of error.
       {¶ 29} Accordingly, 533 Short North's three assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                      Judgment affirmed.

               BROWN, DORRIAN, and LUPER SCHUSTER, JJ., concur.

                              ____________________
