[Cite as Boulder Capital Group, Inc. v. Lawson , 2014-Ohio-5797.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY BOULDER CAPITAL GROUP, INC. : : Appellate Case No. 2014-CA-58 Plaintiff-Appellee : : Trial Court Case No. 09-CV-07 v. : : PHILLIP W. LAWSON, dba : (Civil Appeal from LAWSONS EAST MAIN MARATHON : ( Common Pleas Court) : Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 30th day of December, 2014.

. . . . . . . . . . . MATTHEW G. BURG, Atty. Reg. #0072556, We ltman, Weinberg & Reis Co., L.P.A., Lakeside Place, Suite 200, 323 West La keside Avenue, Cleveland, Ohio 44113 Attorney for Plaintiff-Appellee RICHARD J. DONOVAN, Atty. Reg. #0060900, R.J. Donovan Co., L.P.A., 571 High Street, Suite 22, Worthington, Ohio 43085-4132 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

HALL, J. 2

 {¶ 1} Phillip W. Lawson appeals from the trial court’s entry of final judgment in favor of plaintiff-appellee Boul der Capital Group on its compla int alleging default under a finance lease involving car-wash equipment. {¶ 2} Lawson advances seven assign ments of error. First, he contends the trial court erred in holding a damages hearing without givi ng him adequate notice. Second, he claims the trial court erred in prematurel y sustaining Boulder Capital’s motion to continue the damages hearing. Third, he asserts that the trial court erred in finding Boulder Capital entitled to summary judgment on the issue of liability where the applicable statute of limitation had expired. Fourth, he argues that the trial court erred in finding Boulder Capital entitled to summary judgment on the issue of liability wh ere an accord and satisfaction had occurred. Fifth, he maintains that the trial court erred in finding Boulder Capital entitled to summary judgment on the issue of liability where Boulder Capital failed to mitigate its damages. Sixth, he contends the trial court erred in overruling his own mo tion for summary judgment. Seventh, he claims the trial cour t erred in denying his motion to comp el responses to discovery requests and for attorney fees in connection with the motion. {¶ 3} The record reflects that Boulder Capital entered into a finance lease with Lawson in January 2000. The lease provided fo r Lawson to rent car-wash equipment from Boulder Capital, which owned the equipment. The lease oblig ated Lawson to make monthly payments of $3,351.09 for an initial period of sixt y months. Absent ter mination by either party, the lease was subject to an automatic extension thereafter. {¶ 4} On January 5, 2009, Boulder Capital filed a complaint alleging that Lawson had breached the lease agreement a nd that he owed $301,710.68 including interest. Lawson filed an 3

 answer, which he later amended. Among other things, he raised affirmative defenses involving the statute of limitation, accord and satisfaction, and failure to mitigate damages. In December 2011, the trial court overruled a summa ry judgment motion filed by Boulder Capital. Thereafter, Lawson filed his own summary judgment motion. Af ter the trial court ove rruled it, he responded by filing a second summary judgment motion. B oulder Capital also f iled a second summary judgment motion solely as to liability. The tria l court sustained this motion, finding Lawson in default under the lease as a matter of law. (Doc. #37).Thereafter, the trial court sustained Boulder Capital’s motion to reset a damages hearing from Septem ber 5, 2012 to September 21, 2012. (Doc. #38). Based on evidence presented at the rescheduled hearing (in which Lawson did not participate due to an alleged lack of notice), the trial court filed an entry awarding Boulder Capital $220,136.28 plus costs. (Doc. #43). Lawson appeal ed, but this court dismissed for lack of a final, appealable order because the summary judgment entry and the entry awarding damages both bore the trial court judge’ s rubber-stamped name rather than an actual signature. See Boulder Capital Group v. Lawson , 2d Dist. Clark No. 2012 CA 88, 2013-Ohio-3270. The trial court subsequently remedied the defect and entered fina l judgment in Boulde r Capital’s favor for $220,136.28 plus costs. (Doc. # 57-60). This appeal followed. {¶ 5} In his first assignment of error, Lawson contends the trial c ourt erred in holding the damages hearing on September 21, 2012 without gi ving him notice that the hearing had been reset to that date. He cl aims that this lack of notice depriv ed him of the opportunity to attend and violated Civ.R. 5(A) as well as due process. {¶ 6} The record reflects that the damages hearing originally had been set for September 5, 2012. On September 7, 2012, Boulder Cap ital served Lawson by ordinary mail with 4

 a motion to continue the hearing to September 21, 2012. 1 The trial court then filed a September 17, 2012 entry continuing the damages hearing to September 21, 2012. This entry, which was journalized on September 18, 2012, does not reflect mailing to the partie s. Boulder Capital argues, however, that “Lawson’s receipt of the motion to continue the hearing containing the proposed date for the new hearing, his opposition to Boulder Capital’s mo tion to continue the damages hearing, and the court’s online docket notificati on, all negate any lack of notice claim.” (Appellee’s brief at 6). {¶ 7} In support of his argument, Lawson cite s Civ.R. (5)(A) and due process concerns. Civil Rule 5(A) provides, among other things, that “every orde r required by its terms to be served” and “every written notice” shall be served on the parties. This court has recognized, however, that a trial court need not serve a party with notice of a hearing date if some form of reasonable notice sufficient to sa tisfy due process is provided. Omni Credit Servs. v. Leston , 2d Dist. Montgomery No. 25287, 2013-Ohio-304, ¶ 25- 29. In the due-process context, reasonable notice means “‘notice reasonably calculated, under all the circumst ances, to apprise interested parties of the pendency of the ac tion and afford them an opportunity to present their objections.’” PHH Mtge. Corp. v. Prater, 133 Ohio St.3d 91, 2012-Ohio-3931, 975 N.E.2d 1008, ¶ 9, quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The entry of a trial or hear ing date on a trial c ourt’s docket constitutes reasonable constructive notice. Omni Credit Servs . at ¶ 26. This is so because parties are expected to keep themselves inform ed about the progress of their case. Id. at ¶ 26-27. {¶ 8} Here Lawson knew shortly after Sept ember 7, 2012 that Boulder Capital was

1 The record fails to explain the after-the-fact nature of Boulder Capital’s September 7, 2012 motion to continue a hearing scheduled for September 5, 2012. 5

 seeking to have the damages hear ing rescheduled for September 21, 2012. 2 The trial court did not journalize its entry granting the request and resetting the damages hearing, however, until September 18, 2012. In the proceedings below, Laws on’s counsel asserted that he had checked the trial court’s on-lin e docket as late as September 20, 2012 and that it contained no entry resetting the hearing for the following day. (D oc. #41 at 1). Although Lawson’s counsel did not support this assertion with an affi davit, counsel for Boulder Capita l did not contradict it. Instead, Boulder Capital argued: “[W]her eas Defendant’s counsel has de monstrated some effort to ascertain the case status, Defendant ’s counsel is well aware that [t he trial court’ s] website does not always indicate the current status of the case and Defe ndant’s counsel has demonstrated no additional efforts to ascertain, in particular, the st atus of the Motion for Continue [sic] such as a call to the Clerk’s Office, a call to Plaintiff’s c ounsel or an email to Pl aintiff’s counsel.” (Doc. #42 at 1). {¶ 9} While taking the actions suggested by Boulder Capital may have been prudent, we are unpersuaded that Lawson’ s counsel was obligated to do so. The obligation to provide reasonable notice of the rescheduled damages hearing rested with the trial court. Certainly, failing to give Lawson’s counsel either actual notice or c onstructive notice via its online docket as late as September 20, 2012 would not cons titute reasonable notice of the September 21, 2012 hearing. We reach the same conclusion even if we a ssume, arguendo, that notice of the rescheduled hearing was available online immediately after the trial court’s entry was journalized on September 18, 2012. Although parties are expected to keep themselves informed about the progress of their case, we do not believe they shoul d be expected to monitor a trial court’s online

2 In the proceedings below, Lawson admitted receivi ng service of the motion to continue the damages hearing on September 11, 2012. (Doc. #39 at 2). 6

 docket on a near-daily basis. Under the circumstances here, if the trial court wanted to schedule a September 21, 2012 damages hearing as late as September 18, 2012, due process compelled it to do more to give the parties reasonable notice of its intentions. Given the trial court’s failure to do so, we conclude that it erred in holding the damages hearing in Lawson’s absence. The trial court’s judgment entry awarding Boulder Capital damages of $220,136.28 will be vacated and the matter will be remanded for a new damages hearing. The first assignment of error is sustained. {¶ 10} Our resolution of Lawson’s first assign ment of error renders moot his second assignment of error, which asserts that the tr ial court prematurely sust ained Boulder Capital’s motion to continue the damages hearing before his time to res pond had expired. Accordingly, the second assignment of erro r is overruled as moot. {¶ 11} In his third assignment of error, Laws on claims the trial court erred in finding Boulder Capital entitled to summary judgment on the issue of liability where the applicable statute of limitation had expired. Lawson contends Boulder Capital’s cause of action for default under the lease accrued in December 2004 when he missed a required payment. As a result, he argues that Boulder Capital’s January 5, 2009 lawsuit was time barred under either Ohio’s four-year statute of limitation for an action allegi ng default under a lease contract or Colorado’s three-year statute of limitation for the same type of action. See R.C. 1310.52(A); C.R.S. 4-2.5-506 (incorporatin g C.R.S. 13-80-101). {¶ 12} To resolve the statute-of-limitation issue, we must identify the applicable law and determine when the alleged defa ult occurred. Section 5.9 of the pa rties’ lease agreement provides that it shall be governed by Colorado law. Neve rtheless, that choice-of-l aw provision applies to substantive law, not procedural issu es such as the statute of limitation. See , e.g. , Unifund CCR 7

 Partners v. Childs , 2d Dist. Montgomery No. 23161, 2010-Ohio-746, ¶ 13-16. “‘Absent an express statement that the parties intended another state’s statute of limitations to apply, the procedural law of the forum governs time restrictions on an action for breach[.]’” Id . at ¶ 15, quoting Cole v. Mileti , 133 F.3d 433, 437 (6th Cir.1998). Here th e parties’ lease agreement does not expressly state that Colorado’ s statute of limitation applies. Ther efore, we look to Ohio law to determine the applicable limitation period. As both par ties recognize, the pertinent Ohio statute is R.C. 1310.52(A), which provides that an action fo r default under a lease contract “shall be commenced within four years after the cause of action accrued.” As pertinent here, a cause of action for default accrues when th e default occurs. R.C. 1310.52(B). {¶ 13} The record reflects that Lawson stopped making his monthly lease payments to Boulder Capital beginning in November 2004. He did not make any payments until August 2005, when he remitted a payment that satisfied the fu ll amount due for November 2004 and part of the amount due for December 2004. 3 Because the August 2005 payment did not satisfy the full amount due for December 2004, Lawson argues that the December 2004 default was never cured. Therefore, he identifies December 2004 as the date of default and maintains that the statute of limitation began running at that time. {¶ 14} Lawson’s analysis oversimplifies the issue. The record reveals that two types of alleged default exist: (1) defau lt based on Lawson’s failure to ma ke his monthly rent payments and (2) default based on Laws on’s unauthorized disposition of the car-wash equipment. 4 Lawson’s alleged failure to make the rent payments constitute d an “event of default” under

3 Lawson claims this payment was part of a broader accord and satisfaction, an issue we will address infra.

4 The record fails to make clear whether Boulder Capital is alleging one or both types of default. In the interest of completeness, we will address the statute of limitation as it relates to both types. 8

 section 4.1(a) of the lease. Lawson also allegedly disposed of the car-wash equipment in violation of section 3.8 of the lease—an act that constitu ted a separate “event of default” under section 4.1(c). {¶ 15} With regard to the first type of default—failure to make the monthly rent payments—a second issue arises, to wit: whether each missed installment payment gave rise to a separate cause of action for defa ult with its own statute of limitati on. “‘The general rule regarding loans repayable in installments is that each defau lt in payment may give ri se to a separate cause of action.’” (Citation omitted) U.S. Bank Natl. Assn. v. Gullotta , 120 Ohio St.3d 399, 2008-Ohio-6268, 899 N.E.2d 987, ¶ 30. “Thus, a breach of an installment contract by non-payment does not constitute a breach of the entir e contract. The parties to the note may avoid the operation of this rule by including an acceleration clause in the agreement.” Id. When an acceleration clause is invoked, “a breach cons titutes a breach of the entire contract.” Id. at ¶ 31. Upon acceleration, a contract beco mes indivisible and the obliga tion to pay each installment merges into one obligation to pay the entire balance owed. Id. {¶ 16} Here section 4.2 of the parties’ leas e gave Boulder Cap ital numerous optional remedies if an event of default occurred. With regard to non-payment of rent, Boulder Capital could, among other things, (1) seek to recover all accrued but unpaid amounts payable under the lease or (2) cancel the lease and seek to recover either all unaccrued amounts payable or the fair market value of the equipment. Exercising the latter option effectively would accelerate the debt and obligate Lawson to pay the full lease balan ce (or the value of the equipment). We note, however, that section 4.2 did not make accelera tion automatic or mandatory upon an event of default. Rather, it gave Boulder Capital the option to accelerate the debt. Cf. RCK Inv. Co. v. Centerville Land Investments Ltd , 2d Dist. Montgomery No. 7804, 1982 WL 3828, at *2 (Oct. 9

 20, 1982) (“We conclude that the provision for accel eration was not automatic or self executing. Acceleration did not and could not take place until the holder exercised the option. At the moment when the check was tendered for the pa yment due February 1, 1981 the total debt was not due and did not become due unless the subse quent rejection of the check and subsequent announcement of the exercise of the option creat ed a retroactive right to accelerate the entire debt.”); Rueckel v. Lombards, Inc ., 10th Dist. Franklin No. 79AP-42, 1979 WL 209114, at *3 (June 14, 1979) (distinguishing between an “op tional acceleration provision” and an “automatic acceleration clause”). Until Boulder Capital exer cised its option to accel erate the debt, each monthly default in Lawson’s installment payments gave rise to a separate cause of action with its own statute of limitation. {¶ 17} Although the parties have not specifically addressed th e foregoing issue, we find nothing in the record indicating that Boulder Capital exercised its right to accelerate the debt before June 12, 2007. On that date , Boulder Capital representativ e Anna Sheahan sent Lawson a letter declaring the lease in default and demanding full payment of the debt. (Doc. #9 at Exh. 2). Prior to that time, however, we see no eviden ce that the provision fo r acceleration had been exercised. In any event, as of June 12, 2007, Laws on’s obligation to pay each monthly installment merged into an obligation to pay the entire balance. When Boulder Capital later filed suit on January 5, 2009, at most one of those monthly installment s fell outside R.C. 1310.52(A)’s four-year statute of limitation—namely the par tially-unpaid installment due in December 2004. All installments owed from January 2005 forward we re within the four-year period found in R.C. 1310.52(A). Therefore, a cause of ac tion alleging default based on fa ilure to make monthly rent payments was not barred by Ohio’s four-year statute of limitation. {¶ 18} We reach the same conclusion, albeit w ith less elaboration, regarding the second 10

 type of default at issue, La wson’s alleged disposition of the car-wash equipment. Lawson’s own affidavit below established th at he retained possession of the equipment as of July 2005. Specifically, he averred that he had entered into an accord and satisfaction with Boulder Capital in July 2005. According to Lawson, part of the ag reement obligated him to return the equipment to Boulder Capital upon receiving instructions fo r surrender and delivery, including an address where the equipment should be sent. (See Doc. #9, Lawson affidavit). Although Lawson averred that Boulder Capital never told him where to send the equipment, his affidavit supports a reasonable inference that any imp roper disposition of the car-wash equipment in violation of the lease occurred after July 2005. Because Boulder Capital filed suit on Ja nuary 5, 2009, a cause of action alleging default due to disposition of the equipment was not barred by Ohio’s four-year statute of limitation. {¶ 19} Finally, we must consider the appli cability and impact, if any, of R.C. 2305.03, Ohio’s “borrowing” statute. It provides: “No civil action that is based upon a cause of action that accrued in any other state * * * may be commenced and maintained in this state if the period of limitation that applies to that acti on under the laws of that other state * * * has expired or the period of limitation that applies to that action under the laws of this state has expired.” In essence, R.C. 2305.03 adopts another state’s stat ute of limitation if the cause of action accrued there and if the other state’s statute of limitation is shorter than Ohio’s. 5 Whether Boulder Capital’s cause of action for de fault accrued in Ohio or Colora do is not a simple question, and

5 Contrary to Boulder Capital’s argument on appeal, we believe Lawson sufficiently raised the borrowing statute below. ( See Doc. #20 at 25-27).We note too that R.C. 2305.03 took effect on April 7, 2005, which was after Lawson allegedly started missing his payments under the finance lease but before Boulder Capital filed its lawsuit. Because we conclude that no statute-of-limitation bar exis ts even if R.C. 2305.03 applies, we need not consider or address any potential retroactivity problems with regard to application of the borrowing statute. For present purposes, we simply will assume, arguendo, that the borrowing statute applies. 11

 does not have a simple answer. Bu t even if we assume, arguendo, that the cause of action accrued in Colorado, Boulder Capital’s co mplaint is not time barred by th at state’s statute of limitation either. {¶ 20} A Colorado statute, C.R.S. 4-2.5-506, provi des that an action for default under a lease contract must be brought within the time prescribed in C.R.S. 13-80-101. In turn, C.R.S. 13-80-101 establishes a three-year statute of limitation for contract actions except as provided in C.R.S. 13-80-103.5. One exception in C.R.S. 13-80-103.5 provides a six- year limitation period for “[a]ll actions to recover a liquidated debt or an unliquidated, deter minable amount of money due to the person bringing the action[.]” A s econd exception provides a six-year limitation period for “all actions for the enforcement of rights se t forth in any instrument * * * evidencing any debt[.]” C.R.S. 13-80-103.5(1)(a). {¶ 21} In the present case, we conclude that Boulder Capital’s action against Lawson fits within the scope of C.R.S. 13-80-103.5(1)(a). The first excepti on covers debts that may be ascertained by reference to an agreement or by simple computation using extrinsic evidence if
necessary. Portercare Adventist Health Sys. v. Lego , 286 P.3d 525, 528 (Colo. 2012) (“Therefore, a ‘liquidated debt’ exists if a consumer is ob ligated to pay either an amount stated in the agreement, or an amount capable of ascertainment by simple com putation that arises out of the subject transaction.”). Here th e parties’ lease agreement set forth what Lawson owed Boulder Capital each month. Section 4.2 also provided de tailed terms for computing the damages to which Boulder Capital would be entitled upon default. Although the amount of money Boulder Capital might recover w ould require computation and, potentially , extrinsic evidence, these facts do not preclude the applicability of C.R.S. 13- 80-103.5(1)(a). We also see no reason why the second exception would not apply. As explained above, it covers ac tions for the enforcement of 12

 rights set forth in an instrument evidencing any debt. In the present case, Boulder Capital sought to enforce its rights (i.e., cont ractual remedies) set forth in th e finance lease, which evidenced Lawson’s debt. Cf

. BP Am. Prod. Co. v. Patterson , 185 P.3d 811, 812 (Colo. 2008) (noting the parties’ agreement that C.R.S. 13-80-103.5(1)(a)’s six-year statut e of limitation applied to a claim for unpaid royalties due under a natu ral-gas lease). For the foregoin g reasons, we conclude that Boulder Capital’s January 5, 2009 la wsuit was timely even if we apply Ohio’s borrowing statute and look to Colorado law when resolving the st atute-of-limitation issue. Accordingly, Lawson’s third assignment of error is overruled. {¶ 22} In his fourth assignment of error, Lawson argues that the trial court erred in finding Boulder Capital entitled to summary judg ment on the issue of liability where an accord and satisfaction had occurred. {¶ 23} “An accord is a contract between a debtor and a creditor in which the creditor’s claim is settled in exchange for a sum of money other than that which is allegedly due. Satisfaction is the performance of that contract.” Allen v. R.G. Indus. Supply , 66 Ohio St.3d 229, 231, 611 N.E.2d 794 (1993). Accord and satisfaction is available as a defense only when a genuine dispute exists as to the amount of a debt. Id. Here Lawson claims he and his son provided affidavits establishing the existence of an oral accord entered into with Lance Munson, an agent of Boulder Capital. Lawson asserts that the agreement obligated him to make a final payment of $6,106.54 and to return the car-was h equipment to Boulder Capital upon being provided with return instructions. In exchan ge, Boulder Capital would accept the payment and the equipment in full satisfaction of Lawson’ s obligation under the finance lease. Lawson claims he satisfied his part of the agreement by making the payment and standing ready to return the equipment. According to Lawson’s affidav its, Boulder Capital ne ver provided him with 13

 instructions or an address to return the equipment. He also asserts that Boulder Capital failed to controvert his averments about the existence of an oral accord because Munson, the person with whom he purportedly reached the agreement, no longer works for Boulder Capital and did not provide a competing affidavit. Therefore, he claims the trial court erred in entering summary judgment for Boulder Capital on the issu e of liability under the finance lease. {¶ 24} In the proceedings below, Lawson brie fed the accord-and-satisfaction issue under both Ohio and Colorado law. ( See Doc. #20 at 38-43). Although the parties’ lease agreement makes Colorado substantive law applicable, we agree with Lawson that the result is the same under the law of either state. We disagree with him, however, insofar as he contends a genuine issue of material fact exists on his accord-and-satisfaction affirmative defense. {¶ 25} Colorado and Ohio have adopted their ow n versions of a 1990 revision to Article 3 of the Uniform Commercial Code that specifi cally addresses the creation of an accord and satisfaction by use of a negotiable instrument such as a check. In particular, both states “have statutes modeled after Unifor m Commercial Code S ection 3-311 (‘U.C.C.’); both generally permit a debtor who complies with certain requirements to tender a check to a creditor for less than the amount claimed in full satisfaction of a disputed [or] unliquidated claim.” Nexus Communications, Inc. v. Qwest Communications Corp ., 193 Ohio App.3d 599, 2011-Ohio-1759, 953 N.E.2d 340, ¶ 49 (10th Dist.), citing U.C.C. Section 3-311(a); C.R. S. 4-3-311(a); R.C. 1303.40. Under the U.C.C. as well as the Colorado and Ohio statutes, “the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a c onspicuous statement to the eff ect that the instrument was tendered as full satisfaction of the claim.” Id. citing U.C.C. Section 3- 311(b); C.R.S. 4-3-311(b); R.C. 1303.40(A). 14

 {¶ 26} Here the $6,106.54 check Lawson tendered to Boulder Capital is devoid of any statement that it was tendered in full satisfaction of Boulder Capital’s claim. (See Doc. #9 at Def. Exh. 1). Nor does Lawson even argue that an y accompanying written communication included such a statement. Absent the required statement, either on the check or accompanying it, Lawson’s defense necessarily fa ils under C.R.S. 4-3-311 and R.C. 1303.40. Because both statutes require a conspicuous written stat ement that a check is being te ndered in full satisfaction of a debt, Lawson’s evidence regarding a purely oral ag reement without the written statement fails to create a genuine issue of material fact. 6 Accordingly, the fourth assi gnment of error is overruled.

{¶ 27} In his fifth assignment of error, Lawson maintains that the trial court erred in finding Boulder Capital entitled to summary judgment on the issue of liability where it failed to mitigate its damages. {¶ 28} Lawson asserts that, even without regard to any alleged accord and satisfaction, “Boulder Capital foreclosed itself from recovering the balance of payments under the lease” by failing to provide him with an address where the car-wash equipment could be returned. (Appellant’s brief at 24). If we assume for present purposes that Lawson is correct, his assignment of error lacks merit. It does not follow that the trial court erred in granting Boulder Capital summary judgment on the issue of liability due to an alleged failure to mitigate damages

. By definition, a failure by B oulder Capital to mitigate dama ges might impact the damages

6 In the proceedings below, Lawson cited Allen v. R.G. Indus. Supply , 66 Ohio St.3d 229, 233, 611 N.E.2d 794, 798 (1993), for the proposition that an accord “can be pr oved either by extrinsic evidence of agreement or by sufficient notation on the check.” We note, however, that the Ohio Supreme Court’s 1993 decision in Allen pre-dated the August 1994 effective date of R.C. 1303.40, which explicitly re quires that the check or an accompanying written communication contain “a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.” Under the statute, then, any extrinsic evidence provided to prove an accord also must include a written statement accompanying a check. 15

 ultimately awarded, but it would not negate a finding of liability based on Lawson’s default under the lease. Cf. Abroms v. Synergy Bldg. Sys. , 2d Dist. Montgomery No. 23944, 2011-Ohio-2180, ¶ 60 (recognizing that a failure to mitigate damages does not necessarily bar recovery and simply means a plaintiff cannot rec over those damages it reasona bly could have avoided); see also Deible v. Poole , 691 N.E.2d 1313, 1316 (Ind.App.1998) (holding that mitigation of damages is a defense to the damages awarded but “not a defense to the ultimate issue of liability”). 7 Indeed, the damages issue does not arise unless and until there has been a finding of liability. To the extent that Lawson believes Boulder Capital failed to mitigate its damages, he may raise the issue on remand at the new damages hear ing required by our disposition of the first assignment of error. The fifth assignment of error is overruled. {¶ 29} In his sixth assignment of error, La wson contends the tr ial court erred in overruling his own motion for summary judgment. Sp ecifically, he claims the trial court should have entered summary judgment for him based on the statute of limitation expiring, an accord and satisfaction existing, and mitigation of damages not occurring. {¶ 30} We find Lawson’s argument unpersuasive. In our analysis above, we concluded that the statute of limitation had not expired, th at Lawson’s accord-and-satis faction defense failed as a matter of law, and that Boulder Capital’s alleged failure to mitigate damages did not preclude a finding of liability for default under the fi nance lease. In light of these determinations,

7 It remains possible, of course, that under the right ci rcumstances a hypothetical plaintiff might be able to mitigate all damages. That does not appear to be the cas e here. In the proceedings below, Lawson averred that Boulder Capital agreed in July 2005 to provide him with an address to return the car-wash equipment but failed to do so. (Doc. #9, Lawson affidavit). By that time, however, Lawson already had missed more than six months’ worth of monthly lease payments of $3,351.09. Even if we assume that Boulder Capital failed to mitigate its damages from July 2005 forward, we see no reason why that would preclude all recovery. In any event, as set forth above, a failure to mitigate damages would not demonstrate error in the trial court’s finding of liability based on a default under the lease agreement. 16

 the trial court properly declined to enter su mmary judgment for Lawson on Boulder Capital’s complaint. The sixth assign ment of error is overruled. {¶ 31} In his seventh assignment of error, Laws on claims the trial court erred in denying his motion to compel responses to discovery request s and for attorney fees in connection with the motion {¶ 32} The record reflects that Lawson filed his motion on June 18, 2012, seeking to compel responses to interrogatories and doc ument-production requests. (Doc. #21). Although Boulder Capital already had res ponded to the discovery requests, Lawson asserted its responses were inadequate. Boulde r Capital opposed the motion and also supplemented its responses. (Doc. #27). In a July 12, 2012 reply memorandum, Laws on argued that the responses remained inadequate. (Doc. #28). Thereafte r, on July 26, 2012, both parties moved for summary judgment. (Doc. #31, 32). As set forth above, the trial court ultima tely sustained Boul der Capital’s motion. The trial court never expressly ru led on Lawson’s motion to compel. {¶ 33} On appeal, Lawson claims the trial court’s implicit denial of the motion to compel when entering summary judgment agai nst him constituted an a buse of discretion. We disagree. Notably, Lawson did not file a Civ.R . 56(F) motion and affidavit below seeking to delay the trial court’s summary judgment ruling pending resolution of the discovery dispute. Because he never invoked Civ.R. 56(F), the trial court was per mitted to resolve the competing summary judgment motions without explicitly ruling on the motion to compel . Johnson v. Burt , 2d Dist. Montgomery No. 13095, 1994 WL 567426, *4 (Sept. 9, 1994) (“Plaintiffs did not request that the court continue its determination of the motion due to Dr. Blue’s failure to comply with discovery requests nor did Plaintiffs submit affidavits stating that they could not present by affidavit facts essentia l to justify their opposition to the motion for summary judgment. Both of 17

 these responses are cont emplated by Civ.R. 56(F). Therefore Plaintiffs cannot demonstrate that the trial court erred in granting summary judgment while Plaintiffs’ motion to compel discovery was pending.”); Warwick v. DeWitt , 4th Dist. Ross No. 01CA2613, 2002 WL 59667, *3 (Jan. 15, 2002) (“A party who fails to seek relief under Civ.R. 56(F) in the tr ial court does not preserve its rights thereto for purposes of appeal. * * * Appella nts did file a motion to compel discovery with the court. However, absent a motion reques ting a continuance of the summary judgment proceeding pending discovery, the trial court had discretion to proceed.”); Moore v. Kroger Co. , 10th Dist. Franklin No. 10AP-431, 2010-Ohio-5721, ¶ 23 (“Even if a party files a motion to compel discovery, a trial court does not err when it rules on the motion for summary judgment without ruling on the motion to compel when the pa rty has failed to file a Civ.R. 56(F) motion.”). {¶ 34} Nor can Lawson show that he was prejudi ced by the trial court’s implicit denial of his motion to compel. His failure to i nvoke Civ.R. 56(F) below precludes a finding of prejudice and results in waiver of the issue. If further responses to his discovery requests were necessary for him to oppose Boulder Capital’s summary judgment motion, Lawson was obligated to seek relief under Civ.R. 56(F). Because he di d not do so, he cannot show (and does not even attempt to show) that the disputed discovery would have impacted the trial court’s summary judgment ruling. On the other hand, if furthe r responses were unnecessary for Lawson to oppose summary judgment, then the trial court’s implicit denial of the motion to compel plainly was not prejudicial to him. Cf

. Tripp v. Beverly Enterprises-Ohio, Inc ., 9th Dist. Summit No. 21506, 2003-Ohio-6821, ¶ 68-69; see also Miller v. Premier Indus. Corp ., 136 Ohio App.3d 662, 676, 737 N.E.2d 594 (8th Dist.2000) (“A party who fails to comply with the provisions of Civ.R. 56(F) waives any error in a trial court’s premature ruling on a motion for summary judgment.”); Bank of New York Mellon v. Matthews , 6th Dist. Fulton No. F-12-008, 2013-Ohio-1707, ¶ 23 18

 (“Here, because appellants failed to avail themse lves of the remedy contained in Civ.R. 56(F), they are precluded from challenging the discovery or ders on appeal or from asserting that the trial court prematurely granted summa ry judgment prior to the completion of full discovery. Accordingly, we find that this issue ha s not been preserved for review.”). {¶ 35} In opposition to the foregoing analysis , Lawson cites this court’s opinion in Maguire v. National City Bank , 2d Dist. Montgomery No. 23140, 2009-Ohio-4405, for the proposition that he was not required to seek re lief under Civ.R. 56(F) and that his motion to compel, alone, was enough to establish prejudice a nd to preserve the discovery issue for appeal. Maguire does not support this propos ition. The appellant in Maguire argued that the trial court had erred in entering summary judgment against him while he had a motion to compel discovery pending. In rejecting his argument , this court noted (1) that the motion to compel did not comply with Civ.R. 37 because it lacked a statement regarding efforts made to resolve the dispute and (2) that “[n]either in his motion to compel, nor otherwise, did Maguire seek an extension of time to respond to the motion for summary judgment, as permitted by Civ.R. 56( F), nor does he make any allegation that he was unable to respond ad equately to the motion for summary judgment without the requested discovery.” Id. at ¶ 18-19. Nowhere in Maguire did this court say resort to Civ.R. 56(F) is unnecessary when a proper motion to compel is filed. As explained above, a Civ.R. 56(F) affidavit is necessary to preserve the discovery issue and to enable us to determine on appeal whether any prejudice resulted from the trial court’s entry of summary judgment while a motion to compel was pending. Here Laws on did not seek relief under Civ.R. 56(F) or otherwise argue that he could not properly oppos e Boulder Capital’s su mmary judgment motion due to the outstanding discovery dispute. Ther efore, the trial court did not err in implicitly denying the motion to compel by entering summary judgment against Lawson. The seventh 19

 assignment of error is overruled. {¶ 36} Based on the analysis set forth above, the judgment of the Clark County Common Pleas Court is affirmed in part and reversed in part. Specifically, the judg ment is affirmed on the issue of Lawson’s liability to B oulder Capital for default under th e parties’ finance lease. The judgment is reversed, however, on the issue of damages. The trial court’s damages award is vacated, and the cause is remanded for the limited purpose of a new da mages hearing with adequate prior notice to both parties.

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FAIN, J. and WELBAUM, J., concur.
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