[Cite as Carasalina, L.L.C. v. Smith Phillips & Assocs., 2014-Ohio-2423.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Carasalina, LLC, : 

 Plaintiff-Appellant, : 

 

v. : No. 13AP-1027 

 (C.P.C. No. 12CV-13962) 

Smith Phillips & Associates et al., : 

 (REGULAR CALENDAR) 

 Defendants-Appellees. : 

 

 

D E C I S I O N 

Rendered on June 5, 2013 

 

Chuparkoff & Junga, LLP, and Mark Chuparkoff, for 

appellant. 

McCaslin, Imbus & McCaslin, Thomas J. Gruber and 

Michael P. Cussen; Crabbe, Brown & James, LLP, and 

Christina L. Corl, for appellees. 

 

APPEAL from the Franklin County Court of Common Pleas 

CONNOR, J. 

{¶ 1} Plaintiff-appellant, Carasalina, LLC, appeals from a judgment of the 

Franklin County Court of Common Pleas, in favor of defendants-appellees, Smith Phillips 

& Associates, LPA, and Scott Elliot Smith, LPA, (collectively "appellees"). 

I. Facts and Procedural History 

{¶ 2} In October 2008, appellant leased commercial office space to a law firm 

known as Smith Phillips & Associates. The property is located at 6235 Enterprise Court, 

Dublin, Ohio, and the term of the lease was five years. Smith Phillips & Associates 

dissolved in August 2009, but attorney Scott E. Smith continued to occupy the leased 

premises under the moniker, Scott E. Smith, LPA. 
No. 13AP-1027 2 

{¶ 3} In 2010, appellees commenced a civil action against appellant alleging that 

appellant had breached the covenant of quiet enjoyment.1 Appellant filed an answer to the 

complaint and a counterclaim seeking damages under a number of legal and equitable 

theories. Appellees dismissed the complaint on July 19, 2011, without prejudice, by filing a 

notice of voluntary dismissal. Appellant dismissed the counterclaim, also without 

prejudice, on November 7, 2011. 

{¶ 4} Thereafter, on November 6, 2012, appellant recommenced the action by 

filing the instant complaint against appellees, essentially setting forth the same facts and 

advancing the same legal theories as the previous counterclaim. On January 9, 2013, 

appellees filed a motion for a partial judgment on the pleadings pursuant to Civ.R. 12(C). 

On May 20, 2013, the trial court issued a decision and entry granting appellees' motion as 

to the following claims: contract claims predicated upon appellees alleged failure to pay 

the required security deposit; appellees' unauthorized use of the premises during nonbusiness hours, and upon an account; tort claims sounding in trespass, nuisance and 

intentional infliction of emotional distress; and an equitable claim for unjust 

enrichment/quasi contract. All other claims remained pending. 

{¶ 5} On April 24, 2013, the trial court granted appellees' unopposed motion to 

compel discovery and ordered appellant to respond to appellees' first set of 

interrogatories, first request for production of documents, and second set of 

interrogatories "by May 8, 2013." Thereafter, on June 3, 2013, appellees filed a motion to 

dismiss the remaining claims, pursuant to Civ.R. 37, based upon appellant's alleged 

failure to comply with the discovery order. Appellees alleged that appellant's responses to 

the first set of interrogatories and first request for production of documents were 

inadequate and incomplete, and that appellant had completely failed to respond to the 

second set of interrogatories. Appellant filed a memorandum contra on June 20, 2013. 

{¶ 6} The motion to dismiss remained pending for several months while the 

parties attempted to reach an agreement regarding depositions. However, on 

November 5, 2013, the trial court issued a decision and judgment entry granting 

 

1 Scott Elliot Smith, LPA v. Carasalina, LLC et al., C.P.C. No. 10CVH01-866. 
No. 13AP-1027 3 

appellees' motion and entering judgment in appellees' favor as to the remaining claims. 

Appellant filed a timely notice of appeal from the judgment of the trial court. 

II. Assignments of Error 

{¶ 7} Appellant assigns the following as error: 

I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN 

GRANTING APPELLEES' MOTION FOR JUDGMENT ON 

THE PLEADINGS BECAUSE THE COURT IGNORED THE 

ALLEGATIONS WITHIN THE COMPLAINT WHICH 

CLEARLY STATED A CAUSE OF ACTION WHICH 

CONTAINED A QUESTION OF FACT TO BE DETERMINED 

BY JURY. 

II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN 

ARBITRARILY DISMISSING APPELLANT'S REMAINING 

COUNTS BECAUSE OF A DISCOVERY DISPUTE. 

III. Legal Analysis 

A. Judgment on the pleadings 

{¶ 8} A party may file a motion for judgment on the pleadings under Civ.R. 12(C), 

"[a]fter the pleadings are closed but within such time as not to delay the trial." Franks v. 

Ohio Dept. of Rehab. & Corr., 95 Ohio App.3d 114, 2011-Ohio-2048, ¶ 5. In ruling on a 

motion for judgment on the pleadings, the court is permitted to consider both the 

complaint and answer. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 

570 (1996). When presented with such a motion, a trial court must construe all the 

material allegations of the complaint as true, and must draw all reasonable inferences in 

favor of the nonmoving party. Id., citing Peterson v. Teodosio, 34 Ohio St.2d 161, 165 

(1973); Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574, 581 (2001). The court 

will grant the motion if it finds, beyond doubt, that the plaintiff can prove no set of facts in 

support of the claim(s) that would entitle him or her to relief. Pontious at 570. A 

judgment on the pleadings dismissing an action is subject to a de novo standard of review 

in the court of appeals. RotoSolutions, Inc. v. Crane Plastics Siding, L.L.C., 10th Dist. No.

13AP-1, 2013-Ohio-4343, ¶ 13, citing Franks at ¶ 5. 

{¶ 9} In appellant's first assignment of error, appellant contends that the trial 

court erred when it granted a partial judgment on the pleadings. We disagree. 
No. 13AP-1027 4 

1. Contract Claims 

a. Use of leased premises 

{¶ 10} Appellant alleges that appellees occupied the leased premises at times of the 

day that were restricted by the terms of the lease. In reviewing appellant's claim, we note 

that "[l]eases are contracts subject to the traditional rules of contract interpretation." 

DDR Rio Hondo, L.L.C. v. Sunglass Hut Trading, L.L.C., 8th Dist. No. 98986, 2013-Ohio1800, ¶ 13, citing Mark-It Place Foods v. New Plan Excel Realty Trust, Inc., 156 Ohio 

App.3d 65, 2004-Ohio-411, ¶ 29 (4th Dist.). The interpretation and construction of a 

written contract is a question of law and, therefore, appellate courts will review de novo 

the trial court's interpretation of a contract. Id., citing Continental W. Condominium Unit 

Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501 (1996). The purpose of 

contract construction is to discover and effectuate the intent of the parties. Saunders v. 

Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, ¶ 9. If the terms of the contract are 

determined to be clear and unambiguous, the court need not go beyond the plain 

language of the agreement to determine the parties' rights and obligations. Davis v. 

Loopco Industries, Inc., 66 Ohio St.3d 64 (1993). 

{¶ 11} Article IV of the lease agreement provides, in relevant part: 

 Section 4.02 Hours: 

Lessee shall have access to the leased premises at all hours 

and days for conducting internal business. Lessee shall 

observe, generally, hours from 8:00 a.m. to 6:00 p.m., 

Monday through Friday, and 8:00 a.m. to 12:00 noon on 

Saturday as hours open to the public, and such other hours as 

are reasonably necessary. 

 

{¶ 12} The lease clearly states that there is no restriction on appellees' access to the 

premises for "internal business." Additionally, the use of the word "generally" and the 

phrase "such other hours as are reasonably necessary," clearly evidences the parties' 

intention that the restriction upon "hours open to the public" is a flexible one. Indeed, 

appellees' are not even required to provide notice to appellant when it extends the hours. 

{¶ 13} Under the plain language of the lease agreement, appellees' access to the 

leased premises is virtually unfettered. Nevertheless, the complaint alleges that appellees 
No. 13AP-1027 5 

breached the lease by "failing to only use the premises at reasonable times described 

within the lease," and by "unlawfully gaining access to the leased premises outside the 

permitted hours." (Complaint, 4, 6.) The complaint provides no other information 

regarding the alleged breach. 

{¶ 14} "More than bare assertions of legal conclusions are required to satisfy the 

notice pleading standard." Howard v. U.S. Dist. Court for Southern Dist. of Ohio, 

S.D.Ohio No. 2:10-CV-757 (Dec. 16, 2010), citing Scheid v. Fanny Farmer Candy Shops,

Inc., 859 F.2d 434, 436 (6th Cir.1988) (discussing the analogous provisions of 

Fed.R.Civ.P. 8). " 'In practice, a complaint must contain either direct or inferential 

allegations respecting all the material elements to sustain a recovery under some viable 

legal theory.' "(Emphasis sic.) Id., quoting Scheid. Indeed, when construing the complaint 

in favor of the non-moving party, a court is " 'not bound to accept as true a legal 

conclusion couched as a factual allegation.' " Ferron v. Zoomego, Inc., 276 Fed.Appx. 473 

(C.A.6 2008), quoting Papasan v. Allain, 478 U.S. 265, 286 (1986). See also Haas v. 

Stryker, 6th Dist. No. WM-12-004, 2013-Ohio-2476, ¶ 10 ("Only factual allegations are 

presumed to be true and only claims supported by factual allegations can avoid 

dismissal."). 

{¶ 15} Given the breadth of appellees' access to the premises under the plain 

language of Article IV, Section 4.02, we find that appellant's complaint contains nothing 

more than legal conclusions, unsupported by operative facts. Indeed, the complaint gives 

no indication when and how appellees allegedly violated the "hours" provision in the 

lease. Even when we view the complaint under the liberal notice pleading standard, it is 

our determination that appellant has not alleged a set of facts in support of the claim that 

would entitle appellant to relief. Accordingly, we hold that the trial court did not err by 

entering judgment in appellees' favor. 

b. Security deposit 

{¶ 16} Appellant alleges that appellees failed to pay the required security deposit 

prior to taking possession of the leased premises. The trial court found that the parol 

evidence rule barred appellant's claim. We agree. 
No. 13AP-1027 6 

{¶ 17} In Beard v. New York Life Ins. & Annuity Corp., 10th Dist. No. 12AP-977, 

2013-Ohio-3700, ¶ 27, we discussed the import of the parol evidence rule: 

The parol evidence rule is a rule of substantive law developed 

centuries ago to protect the integrity of written contracts. Ed 

Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 440 

(1996). Pursuant to this rule, " 'absent fraud, mistake or other 

invaliding cause, the parties' final written integration of their 

agreement may not be varied, contradicted or supplemented 

by evidence of prior or contemporaneous oral agreements, or 

prior written agreements.' " Galmish v. Cicchini, 90 Ohio 

St.3d 22, 27, 2000-Ohio-7, quoting 11 Williston on Contracts 

(4th Ed.1999) 569-70, Section 33:4. 

Id. at ¶ 27. 

{¶ 18} The trial court determined that the parol evidence rule barred appellant's 

claim because the lease agreement expressly acknowledges appellant’s receipt of the 

required security deposit. More particularly, section 3.02 of the lease agreement states 

that "[l]essor acknowledges that it has received $2,000.00 as a security deposit." To the 

extent that appellant now contends that the parties orally agreed that appellee was to pay 

the security deposit at a later date, but failed to do so, such an agreement clearly 

contradicts the written lease. There is no allegation of fraud or mistake with regard to the 

lease provision at issue. Accordingly, the parol evidence rule bars appellant's claim for 

relief based upon the alleged oral agreement. 

c. Abandonment 

{¶ 19} Appellant argues that the question whether appellees abandoned the lease is 

a question of fact. However, as the trial court ably noted, appellees were ordered to vacate 

the leased premises in the prior litigation. (R. 42, exhibit B.) Thus, appellees did not 

abandon the leased premises, as a matter of law.2

d. Account 

{¶ 20} "An 'action on an account' is 'merely a pleading device used to consolidate 

several different claims one party has against another.' " Cooper & Pachell v. Haslage, 142 

Ohio App.3d 704, 707 (9th Dist.2001), quoting AMF, Inc. v. Mravec, 2 Ohio App.3d 29, 

 

2 On December 25, 2012, the trial court granted appellees' motion to incorporate the record from the prior 

litigation. 
No. 13AP-1027 7 

31 (8th Dist.1981). "To establish a prima facie case for money owed on an account, a 

plaintiff must demonstrate the existence of an account, including that the account is in the 

name of the party charged, and it must also establish (1) a beginning balance of zero, or a 

sum that can qualify as an account stated, or some other provable sum; (2) listed items, or 

an item, dated and identifiable by number or otherwise, representing charges, or debits, 

and credits; and (3) summarization by means of a running or developing balance, or an 

arrangement of beginning balance and items that permits the calculation of the amount 

claimed to be due." Great Seneca Fin. v. Felty, 1st Dist. No. C-050929, 2006-Ohio-6618, 

¶ 6; see also Climaco, Seminatore, Delligati & Hollenbaugh v. Carter, 100 Ohio App.3d 

313, 320 (10th Dist.1995). 

{¶ 21} Although the complaint arguably states a claim in contract for rents and 

other related expenses due under the written lease agreement, the complaint falls 

woefully short of satisfying the pleading requirements for an account stated. See Deer 

Creek Commons v. Dukes, 3d Dist. No. 12-91-5 (Mar. 24, 1992); Jay-Jay, Inc. v. South 

High Dev., Ltd, 10th Dist. No. 82AP-312 (Dec. 23, 1982). Thus, the trial court did not err 

when it determined that appellant could prove no set of facts in support of the claim on an 

account that would entitle it to relief. 

2. Tort Claims 

a. Trespass 

{¶ 22} "The common-law tort in trespass upon real property occurs when 'a 

person, without authority or privilege, physically invades or unlawfully enters the private 

premises of another whereby damages directly ensue * * *.' " Reddy v. Plain Dealer 

Publishing Co., 8th Dist. No. 98834, 2013-Ohio-2329, ¶ 8, quoting Apel v. Katz, 83 Ohio 

St.3d 11, 19 (1998). The factual basis for appellant's trespass claim is that appellees "while 

inappropriately and without authorization upon the grounds of 6235 Enterprise Court, 

Dublin, Ohio [appellees] created damage to the property owned by [appellant]." 

(Complaint, 8.) However, as noted above, appellant has not alleged facts that would 

permit an inference that appellees accessed appellant's property in violation of the lease. 

Furthermore, to the extent that appellant alleges that appellees "created damage to the 

property," there is not a single factual allegation in the 95-paragraph complaint that 
No. 13AP-1027 8 

would suggest that there was any physical damage to appellant's real or personal 

property. In our view, the complaint does not allege any set of facts which would entitle 

appellant to relief from appellees for an intentional trespass. Thus, the trial court did not 

err when it granted appellees' motion for judgment on the pleadings. 

b. Intentional Infliction of Emotional distress 

{¶ 23} The trial court reasoned that a business entity could not recover damages 

for emotional distress. We agree. See Patel v. AT&T, 7th Dist. No. 94-B-49 (Jan. 30, 

1997). Additionally, appellant's bare-bones allegations of misconduct on the part of 

appellees in connection with the lease agreement are legally insufficient to permit even 

the inference of "extreme and outrageous conduct" as is required under the common law. 

See, Yeager v. Local Union 20, 6 Ohio St.3d 369, 374-75 (1983). The same is true of 

appellant's bare-bones allegations of "threats, and conversion of personal property." 

(Complaint, 9.) 

c. Nuisance 

{¶ 24} A "private nuisance," is a "nontrespassory invasion of another's interest in 

the private use and enjoyment of land." Brown v. Scioto Cty. Bd. Commrs., 87 Ohio 

App.3d 704, 712 (4th Dist.1993). Appellant alleges that appellees created a "strong and 

offensive level of interference with [appellant's] use and enjoyment of their land." 

(Complaint, 12.) Once again, appellant has failed to allege operative facts which would 

provide appellees with notice of the nature of the alleged interference. 

{¶ 25} Moreover, it is clear that appellant claims no physical harm to persons or 

property. "Tort law is not designed * * * to compensate parties for losses suffered as a 

result of a breach of duties assumed only by agreement." Floor Craft Floor Covering, Inc. 

v. Parma Community General Hosp. Assn., 54 Ohio St.3d 1, 7 (1990). The economic loss 

rule generally prevents recovery in tort of damages for purely economic loss as such 

damages are within the contemplation of the parties when framing their agreement. See, 

e.g, Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 45 (1989); 

Floor Craft. As noted above, Article IV of the lease agreement contains provisions 

concerning appellees' use and occupation of the leased premises. Any action by appellant 

based upon a claim that appellees' use of the leased premises wrongfully interfered with 
No. 13AP-1027 9 

appellant's use and enjoyment of its own property is within the province of the law of 

contracts. Accordingly, the trial court did not err when it granted judgment in appellees' 

favor on the nuisance claim. 

3. Equity 

{¶ 26} Appellant claims that count three of the complaint states a claim for relief 

for "unjustly enrichment/quasi contract/quantum meruit." We disagree. 

{¶ 27} Unjust enrichment exists when there is: (1) a benefit conferred by a plaintiff 

upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the 

benefit by the defendant under circumstances where it would be unjust to do so without 

payment. Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984). The complaint 

alleges only that appellees "began utilizing additional space not contained within the lease 

agreement which conferred a benefit upon [appellees]." (Complaint, 7.) 

{¶ 28} The trial court determined that the existence of a written lease agreement 

precluded appellant from pursuing an equitable theory of relief. While we agree with 

appellant that appellees' conduct in knowingly occupying additional space not 

encompassed by the lease agreement could give rise to a claim for relief outside the 

contract, we find that the complaint in this instance contains legal conclusions rather than 

operative facts. Indeed, the complaint does not identify the "additional space" in any 

meaningful way, nor does it state when appellees began utilizing the space and for what 

purpose. Even under the liberal notice pleading standard, we find that appellant has not 

alleged a set of facts in support of this claim that would entitle appellant to relief. 

Accordingly, we find that the trial court did not err when it entered judgment in appellees' 

favor as to the equitable claims, albeit for a different reason. 

{¶ 29} For the foregoing reasons, appellant's first assignment of error is overruled. 

B. Civ.R. 37(B) Dismissal 

{¶ 30} With regard to the judgment entry issued on November 5, 2013, Civ.R 37(B) 

provides, in relevant part: 

(2) If any party or an officer, director, or managing agent of a 

party or a person designated under Rule 30(B)(5) or Rule 

31(A) to testify on behalf of a party fails to obey an order to 

provide or permit discovery, including an order made under 

subdivision (A) of this rule and Rule 35, the court in which the 
No. 13AP-1027 10 

action is pending may make such orders in regard to the 

failure as are just, and among others the following: 

* * * 

(c) An order striking out pleadings or parts thereof, or staying 

further proceedings until the order is obeyed, or dismissing 

the action or proceeding or any part thereof, or rendering a 

judgment by default against the disobedient party[.] 

(Emphasis added.) 

{¶ 31} A trial court has broad discretion when imposing discovery sanctions. Betz 

v. Penske Truck Leasing Co., L.P., 10th Dist. No. 11AP-982, 2012-Ohio-3472, ¶ 11. An 

appellate court shall review such rulings under an abuse of discretion standard. Id., citing 

Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254 (1996), syllabus. " 'Under this standard 

of review, we must affirm the trial court's action absent a showing that the trial court 

acted unreasonably, unconscionable or arbitrarily.' " Watkins v. Holderman, 10th Dist. 

No. 11AP-491, 2012-Ohio-1707, ¶ 14, quoting Stark v. Govt. Accounting Solutions, Inc.,

10th Dist. No. 08AP-987, 2009-Ohio-5201, ¶ 14. 

{¶ 32} In the second assignment of error, appellant argues that the trial court 

abused its discretion when it dismissed the remaining claims of malicious prosecution, 

abuse of process, and fraud due to appellant's failure to comply with a discovery order.3

We disagree. 

{¶ 33} Appellant first contends that the trial court dismissed its remaining claims 

without giving appellant prior notice of its intention to impose such a severe sanction. 

While we agree with appellant that the April 24, 2013 entry does not expressly identify 

dismissal as a possible sanction for non-compliance, "[t]his court has repeatedly held that 

a party receives sufficient notice pursuant to Civ.R. 41(B)(1) if that party is served with a 

motion to dismiss and has an opportunity to file a responsive motion." Hargrove v. Ohio 

Dept. of Rehab. & Corr., 10th Dist No. 11AP-439, 2012-Ohio-375, citing Huntington Natl. 

Bank v. Zeune, 10th Dist. No. 08AP-1020, 2009-Ohio-3482, ¶ 24; Tymachko, D.O. v. 

Ohio Dept. of Mental Health, 10th Dist. No. 04AP-1285, 2005-Ohio-3454, ¶ 19-20; and 

 

3 Appellant's claims for malicious prosecution and fraud arise from appellees' alleged misconduct in the 

prior litigation. 
No. 13AP-1027 11 

Pearson v. Mansfield Corr. Inst., 10th Dist. No. 02AP-96, 2002-Ohio-5011, ¶ 15, 23. The 

same basic rule applies for dismissals pursuant to Civ.R. 37(B)(2). Watkins v. 

Holderman, 10th Dist. No. 11AP-491, 2012-Ohio-1707, ¶ 21; Zeune at 23-24; Tymachko at 

¶ 14. In this instance, appellee served appellant with the motion to dismiss and appellant 

timely filed a memorandum in opposition. Thus, appellant clearly had notice of the 

possibility of dismissal and had an adequate opportunity to defend against such a 

sanction. 

{¶ 34} Appellant next contends that the trial court abused its discretion by 

granting the motion to dismiss when the parties were still actively engaged in discovery. 

Again, we disagree. 

{¶ 35} The record reveals that appellant did not respond to the motion to compel. 

On appeal, appellant argues that it had no obligation to respond to appellees’ second set of 

interrogatories because appellees had exceeded the maximum of 40 interrogatories 

without first obtaining leave. However, appellant waived these arguments by failing to 

respond to the motion to compel. Watkins at ¶ 18. Thus, appellant was clearly obligated to 

either respond to the outstanding discovery or face an appropriate sanction. 

{¶ 36} Although the record shows that on May 5, 2013, appellant filed a "Notice of 

Service," stating that it had "provided responses to Defendant's first Request for 

Admissions, First Set of Interrogatories and First Request for Production of Documents 

this 5th day of May, 2013," appellant never responded to appellees' second set of 

interrogatories. 

{¶ 37} As noted above, the trial court's April 24, 2013 entry expressly applies to 

appellees' second set of interrogatories. Thus, while appellant knew that it had no 

justifiable reason to withhold a response to such discovery, appellant still failed to 

respond. Additionally, while the trial court waited several months before ruling on the 

motion to dismiss, appellant made no effort to respond to appellees' second set of 

interrogatories. Had appellant made an effort to fully comply with the trial court order, 

such an effort, although belated, would have factored into the trial court’s analysis. 

Instead, the record reveals a stubborn refusal by appellant to comply with the trial court's 

order regarding appellees' second set of interrogatories. 
No. 13AP-1027 12 

{¶ 38} "In determining a suitable sanction, a trial court should consider: (1) the 

history of the case; (2) all the facts and circumstances surrounding the noncompliance; 

(3) what efforts, if any, the faulting party made to comply; (4) the ability or inability of the 

faulting party to comply; and (5) any other relevant factors." Betz at ¶ 42, citing Billman v. 

Hirth, 115 Ohio App.3d 615, 619 (10th Dist.1996). Before dismissing claims for violation of 

a discovery order, a trial court must find that the failure to comply is due to willfulness, 

bad faith, or any fault of the disobedient party. Tymachko at ¶ 14. "A trial court is not 

required to use the terms 'willfulness or bad faith' in a dismissal order, so long as such 

behavior can be established from the record." Id. See also Watkins at ¶ 14. 

{¶ 39} The record in this case reveals the following: the remaining fraud claim 

appellant alleged in the complaint had been the subject of prior litigation; the prior 

litigation gave rise to a number of protracted discovery disputes and two separate appeals 

to this court;4 the current litigation had been pending for a year; the motion to dismiss 

had been pending for several months, yet appellant completely failed or refused to comply 

with the order to respond to appellees' second set of interrogatories; and appellant has 

never asserted any reason why it could not have responded to the interrogatories. These 

circumstances clearly favor a severe sanction. 

{¶ 40} Appellant notes, however, that while the motion to dismiss was pending the 

following events took place: a staff attorney conducted a status conference regarding 

discovery; the trial court issued an order extending the discovery deadline; and the parties 

engaged in an additional dispute regarding depositions. Appellant believes that its failure 

to comply with the April 24, 2013 discovery order is excusable in light of these subsequent 

events. In our view, none of these events are particularly relevant to appellant's failure to 

comply with the trial court's prior discovery order. Indeed, while the record shows that 

the parties and the trial court endeavored to advance the discovery process in spite of 

appellant's non-compliance with the prior order, appellees' never withdrew the motion to 

dismiss. Appellant continued to ignore the order even though it knew that the motion to 

 

4 See Scott Elliott Smith Co., L.P.A. v. Carasalina, L.L.C., 192 Ohio App.3d 794, 2011-Ohio-1602 (10th 

Dist.)(Appeal from trial court order denying appellees' motion to quash a subpoena); Scott Elliot Smith v. 

Carasalina, 10th Dist. No. 13AP-65, 2014-Ohio-560 (Appeal by building IT provider, Big Thumb LLC, from 

trial court's order dismissing Big Thumb's counterclaim against Scott Elliott Smith, LPA, for lack of 

prosecution.) 
No. 13AP-1027 13 

dismiss was ripe for review. In our opinion, the record supports a finding of willfulness, 

bad faith or fault on the part of appellant. Tymachko at ¶ 14. Under the circumstances, the 

trial court did not act unreasonably, unconscionably or arbitrarily when it dismissed 

appellant's remaining claims. 

{¶ 41} For the foregoing reasons, we hold that the trial court did not abuse its 

discretion when it granted appellees' motion to dismiss. Accordingly, appellant's second 

assignment of error is overruled. 

IV. Conclusion 

{¶ 42} Having overruled each of appellant's assignments of error, we affirm the 

judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

SADLER, P.J. and LUPER SCHUSTER, J., concur. 

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