[Cite as Wightman v. Weade , 2019-Ohio-4915.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

JOHN WIGHTMAN, et al., Appellants,

- vs -

WEADE, LLC REALTORS AND AUCTIONEERS, et al., Appellees. :

:

:

:

:

: CASE NO. CA2019-04-006

O P I N I O N

12/2/2019

CIVIL APPEAL FROM FAYETTE CO UNTY COURT OF COMMON PLEAS Case No. CV20180077

John H. Flessa, 810 Sycamore Street, Cincinnati, Ohio 45202, fo r appellants Pyper & Associates, LLC, Thomas H. Pyper, 7601 Paragon Road, Su ite 103, Dayton, Ohio 45459, for appellee, Weade, LLC Realtors and Auctioneers Reminger Co., LPA, Zachary B. Pyers, Brandon L. Abshier, 200 Ci vic Center Drive, Suite 800, Columbus, Ohio 43215, for appellee, John R. Willis Stephen K. Shaw Law, LLC, Stephen K. Shaw, 8157 Camargo Road, L ower Unit, Madeira, Ohio 45243, for appellee, Barbara Saunders

M. POWELL, J. {¶ 1} Appellants, John Wightman and Lori Wightman ("appellants" colle ctively, and individually as "John Wightman" and "Lori Wightman"), appeal th e decision of the FayetteFayette CA2019-04-006

- 2 - County Court of Common Pleas granting judgment in favor of appe llees, Weade, LLC Realtors and Auctioneers, John R. Willis, and Barbara Saunders ("appellees" collectively, and individually as "Weade," "Willis ," and "Saunders," respecti vely). 1 {¶ 2} Appellants were tenants of a rental property owned by Willis an d Saunders and managed by Weade. Appellants filed their initial complaint in March 2018 against Weade, alleging personal injurie s and other damag es arising fro m a mold infestation in the property. On June 11, 2018 appellants filed an amended complai nt to include Willis and

Saunders. 2 In September, the trial court filed a scheduling order establ ishing discovery cut-off and trial dates. At the end of September and early Oct ober, appellees moved the court to compel discovery from appellants citing appellants’ li mited and incomplete responses to their discovery requests. On November 9, 2018, th e trial court granted appellees' motion and ordered appellants to comply with appelle es' discovery requests by December 3, 2018. {¶ 3} Appellants did not comply with this court order. Consequently, two of the appellees moved to dismiss the complaint with prejudice in Dece mber 2018. The third appellee filed a similar motion in January 2019. Appellants fi led a response to the motion to dismiss. The trial court held a hearing on the matter at th e end of January 2019. John Wightman and his attorney attended and participated in this hea ring. Lori Wightman did not appear for the hearing. {¶ 4} On February 7, 2019, the trial court entered an order denying t he motions to

1. There is an issue as to whether Lori Wightman's appeal is pr operly before this court. Appellants' counsel included Lori Wightman as a party in the notice of appeal and i n his notice of substitute representation. However, counsel did not submit a brief on behalf of Lori Wight man and averred at oral argument that he did not represent Lori Wightman. Nevertheless, without an entry in the record granting either counsel's motion to withdraw from representation or a motion to dismiss, this court shall consider Lori Wightman as an additional appellant and address her appeal together with that of John Wig htman. 2. The amended complaint included a fourth defendant who was su bsequently granted summary judgment in his favor. Appellants did not appeal that decision.Fayette CA2019-04-006

- 3 - dismiss, but ordered appellants to pay the appellees' reasonabl e attorney fees for the motion, ordered Lori Wightman, in accordance with her attorney' s representation to the trial court, to file a notice of dismissal for any medical or employm ent loss damage claims, and ordered appellants to comply with specific discovery requests b y February 15 and March 1, 2019. In this order, the trial court notified appellants that any further failure to comply with the court's order would subject them to sanctions including dis missal of the complaint. The court deferred further consideration of an award of attorney fe es pending appellees' submission of affidavits within fifteen days. {¶ 5} In response to that order, John Wightman filed a partial answer to the interrogatories, filed a witness list, and submitted limited do cuments and release authorizations. Lori Wightman submitted nothing and did not di smiss her claims, as agreed. After the February discovery response deadline had passed, appe llees moved for sanctions, requesting a dismissal with prejudice against appell ants for their failure to fully comply with the discovery order. After the March 1, 2019 disco very response deadline, two of the appellees further moved for sanctions against appellants for the additional failure to comply. Appellants did not file a response to these motions. The trial court held a hearing on this matter in late March 2019. John Wightman and his attor ney attended and participated in this hearing. Lori Wightman did not appear for the hearing. {¶ 6} On April 1, 2019 the trial court granted appellees' motions and entered "default judgment with prejudice" in favor of appellees. 3 In this judgment entry, the trial court did not award attorney fees to appellees in view of havin g rendered default judgment in appellees' favor, but stated that it would order appellants to pay appellees' attorney fees if the cause were to be reversed on appeal and remanded.

3. As will be discussed in this opinion, the trial court's fina l order amounted to a dismissal with prejudice.Fayette CA2019-04-006

- 4 - {¶ 7} Appellants now appeal raising two assignments of error for revi ew. {¶ 8} Assignment of Error No. 1: {¶ 9} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GIVE PLAINTIFF OR PLAINTIFF'S COUNSEL ACTUAL, PREREQUISITE, SPE CIFIC

NOTICE OF THE COURT'S INTENTION TO ORDER THE MOST SEVERE SANCTI ON, TO DISMISS THE PLAINTIFF'S CASE WITH PREJUDICE, BY IMPROPERLY G RANTING

DEFAULT JUDGMENT. {¶ 10} In the first assignment of error, appellants argue two issues. First, appellants contend that the trial court failed to provide actual notice th at it intended to dismiss the cause with prejudice as required by Civ.R. 41(B). Second, appe llants argue that the dismissal with prejudice was an excessive sanction because ther e was nothing in the record to show that appellants' failure to respond was willful or in b ad faith. {¶ 11} Before addressing the merits of the case, we first discuss the characterization used by the trial court in its final order. Regarding the sanc tions of dismissal and default judgment contained in Civ.R. 37(B)(1)(e) and (f) respectively, "dismissal applies to a plaintiff's case" and a "default judgment is entered against a defendant." Producers Credit Corp. v. Voge , 12th Dist. Preble No. CA2002-06-009, 2003-Ohio-1067, ¶ 15, ci ting Civ.R. 41 and 55. Therefore, the trial court decision to grant appell ees motions and render "default judgment in favor of Defendants as to all claims which is a jud gment with prejudice" is technically incorrect. Default judgment may not be granted aga inst appellants because they were the party seeking affirmative relief, not the party agains t whom affirmative relief was sought. See Civ.R. 55. Nevertheless, the e ffect of the order is the dismi ssal of appellants' cause of action on the merits as provided in Civ.R. 41(B). Acc ordingly, this court will review the order as a dismissal pursuant to Civ.R. 37(B)(1)(e) and 41( B)(1). {¶ 12} Civ.R. 41(B) sets forth a trial court's authority to involuntar ily dismiss aFayette CA2019-04-006

- 5 - plaintiff's action or claim. Unless otherwise indicated, a dis missal pursuant to Civ.R. 41(B) is an adjudication on the merits. "A dismissal on the merits i s a harsh remedy that calls for the due process guarantee of prior notice." Ohio Furniture Co. v. Mindala , 22 Ohio St.3d 99, 101 (1986). Therefore, the rule requires that a trial cour t give the plaintiff notice of its intention to dismiss the action before it may do so. Civ.R. 41 (B)(1). {¶ 13} "The decision to dismiss a case pursuant to Civ.R. 41(B)(1) is within the sound

discretion of the trial court." Collins v. Kirby , 12th Dist. Warren No. CA2018-07-079, 2019- Ohio-1293, ¶ 14, citing Quonset Hut, Inc. v. Ford Motor Co. , 80 Ohio St.3d 46, 47 (1997). Consequently, an appellate court will review a dismissal for an abuse of discretion. Quonset

Hut at 47. An abuse of discretion is more than an error of law or judgment, it implies an attitude of the court that is unreasonable, arbitrary, or uncon scionable. Id . However, the abuse of discretion standard is "heightened when reviewing deci sions that forever deny a plaintiff a review of a claim's merits," Jones v. Hartranft , 78 Ohio St.3d 368, 372 (1997), because one of the tenets of Ohio jurisprudence is that "dispos ition of cases on their merits

is favored in the law." Id at 371. Notwithstanding the heightened scrutiny, dismissal wit h prejudice is warranted when the conduct of a party is "'neglige nt, irresponsible, contumacious or dilatory as to provide substantial grounds for a dismissal with prejudice for a failure to prosecute or obey a court order.'" Quonset Hut at 48, quoting Tokles & Son,

Inc. v. Midwestern Indemn. Co. , 65 Ohio St.3d 621, 632 (1992). {¶ 14} Civ.R. 37 sets forth a trial court's authority to compel discov ery and sanction litigants for a failure to produce or permit discovery. Civ.R. 37(B)(1) provides: If a party * * * fails to obey an order to provide or permit discovery, including an order made under Civ.R. 35 or Civ.R. 37(A), the court may issue further just orders. They may inclu de the following: * * * (e) Dismissing the action or proceeding in whole or in part;Fayette CA2019-04-006

- 6 - {¶ 15} For dismissals with prejudice entered pursuant to Civ.R. 37(B)( 1)(e), the notice requirement of Crim.R. 41(B)(1) applies. Kirby, 2019-Ohio-1293 at ¶ 15, citing Ohio

Furniture Co. , 22 Ohio St.3d at 101. {¶ 16} Contrary to appellants' argument, the trial court does not have to give actual notice of its intention to dismiss with prejudice. Sazima v. Chalko , 86 Ohio St.3d 151, 155- 156 (1999). Instead, the requisite notice "'may be implied whe n reasonable under the

circumstances.'" Id . at 155, quoting Quonset Hut, 80 Ohio St.3d at 49. This is because, 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." Id. The Quonset Hut court held that for 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. 80 Ohio St. 3d at 49. Accordingly, the Quonset Hut court found that the plaintiff had adequate notice under Civ.R. 41(B) when the defendant filed a m otion to dismiss with prejudice and the plaintiff did not take any later steps to cor rect the noncompliance. Id. at 48-49; compare with Sazima at 157 (Trial court abused its discretion dismissing for noncompliance because the plaintiff belatedly complied with the outstanding court order days before the trial court entered the dismissal.) As this co urt has explained, "implied notice of a trial court's intention to dismiss exists when a pa rty is on notice that the opposing party has requested dismissal." Producers Credit Corp. , 2003-Ohio-1067 at ¶ 19. {¶ 17} We find appellants had the requisite notice of dismissal with p rejudice and did nothing to correct the noncompliance. The trial court employed several measures to produce compliance from appellants. Prior to dismissing appell ants’ action, the trial courtFayette CA2019-04-006

- 7 - twice ordered appellants to provide discovery. The trial court denied appellees' initial motions to dismiss with prejudice. Further, the trial court co nducted hearings upon the matter at which John Wightman, and his attorney, were present a nd afforded the opportunity to explain appellants' failure to provide the discovery as orde red. In its second order to compel discovery, the trial court expressly notified appellants that a failure to comply would subject them to sanctions, including the dismissal of their act ion. Upon appellants' second failure to comply, appellees again moved for sanctions specific ally requesting dismissal with prejudice. Appellants took no action to comply with or respond to the trial court's order, and did not provide a response to appellees' motions. Therefore, a ppellees' motions for sanctions specifically requesting dismissal with prejudice and the trial court's warning that a continued failure to comply with its order compelling discove ry may result in dismissal gave appellants adequate notice under Civ.R. 41(B). The trial court did not abuse its discretion dismissing appellants' complaint with prejudice. {¶ 18} Next, appellants argue that the dismissal was too severe a sanc tion because they had significantly complied with the discovery orders and a ny noncompliance was not

willful or in bad faith. {¶ 19} The record is silent as to why appellants failed to comply with the discovery orders. Appellants did not avail themselves of the opportunity to explain their noncompliance by filing responses to the second iteration of ap pellees' motions for sanctions. Additionally, appellants did not file transcripts f or the two hearings on the matter, during which they were also afforded an opportunity to explain their noncompliance. {¶ 20} In the absence of these transcripts, "the reviewing court has n othing to pass upon and thus, as to those assigned errors, the court has no ch oice but to presume the validity of the lower court's proceedings, and affirm." Knapp v. Edwards Laboratories , 61 Ohio St.2d 197, 199 (1980). Specifically, the trial court foun d thatFayette CA2019-04-006

- 8 - [Appellants] have still not filed written notarized responses t o the interrogatories submitted to them last year, have not filed a written response to the request for production of documents (although they have been submitting some to counsel periodically), have not obtained any tax records and have not provided any proof of wage loss and have not provided copies of recordings of conversations allegedly made with [appellee] Weade's representatives. {¶ 21} Thus, we must presume the regularity of the proceeding and that the trial court had an adequate basis to both find that appellants repeatedly f ailed to comply with the orders compelling discovery and di smiss appellants' complaint w ith prejudice. {¶ 22} The record establishes that the trial court had employed less s evere measures to produce compliance and appellants failed to comply with these orders for a significant length of time. Furthermore, the fact that John Wi ghtman was present with counsel at the discovery compliance hearings belies appellants' argument that their failure to comply with the discovery order was merely due to legal naiv ete and ignorance of the discovery process. By his presence at the hearings, John Wight man was directly aware of his need to comply with the discovery orders. His subsequent f ailure to comply, without anything in the record to the contrary, can only be described a s substantial negligence and irresponsibility such that a dismi ssal with prejudice was warra nted. Additionally, Lori Wightman's failure to appear at these hearings and failure to c omply with the trial court's orders showed a failure to prosecute and irresponsible conduct substantial enough to warrant the dismissal with prejudice. Ultimately, as the Quonset Hut court explained, "[t]here was no reason for the trial court to expect that one m ore warning would have prompted [the plaintiff] to comply with the discovery order it had ignored for over four months

* * *." 80 Ohio St.3d at 49. {¶ 23} Therefore, the trial court did not abuse its discretion dismiss ing appellants' cause of action with prejudice. Accordingly, appellants' first assignment of error isFayette CA2019-04-006

- 9 - overruled. {¶ 24} Assignment of Error No. 2: {¶ 25} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY OPENLY

COERCING PLAINTIFF IN ITS FINAL APPEALABLE ORDER THAT IT WILL O RDER

PLAINTIFF TO PAY DEFENDANTS' ATTORNEY FEES "SHOULD THIS JUDGMEN T BE

REVERSED ON APPEAL." {¶ 26} In their second assignment of error, appellants argue the trial court's statement about ordering payment of attorney fees should the ca use be reversed and remanded was an attempt to intimidate or coerce appellants into foregoing the appeal. {¶ 27} Despite the language employed by the trial court, which might b e construed as an effort to discourage an appeal, we understand the trial c ourt to have merely recognized the principle that "[u]pon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred. " State ex rel. Stevenson v. Murray , 69 Ohio St.2d 112, 113 (1982). In other words, the trial cou rt was observing that an award of attorney fees would be an unnecessary sanction in v iew of the dismissal of the action, but should the order dismissing the matter be reversed on appeal, on remand the trial court would consider the award of attorney fees that was pending at the time of

dismissal. {¶ 28} In any event, our resolution of appellants' first assignment of error necessarily moots appellants' second assignment of error. As this court ha s previously explained, "actions become moot when resolution of the issues presented is purely academic and will have no practical effect on the legal relations between the par ties." Schreyer v. Bd. of Commrs. of Preble Cty. , 12th Dist. Preble No. CA2012-12-018, 2013-Ohio-3087, ¶ 13. Therefore, appellants' second assignment of error is overruled as moot. See App.R. 12(A)(1)(c).Fayette CA2019-04-006

- 10 - {¶ 29} Judgment affirmed.

HENDRICKSON, P.J., and S. POWELL, J., concur.