[Cite as Winkle v. Kroger Grocery Store, #519, 2017-Ohio-8461.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Joyce Winkle et al., : 

 

 Plaintiffs-Appellants, : 

 No. 17AP-50 

v. : (C.P.C. No. 16CV-3013)

Kroger Grocery Store, #519, : (ACCELERATED CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on November 7, 2017 

 

On brief: Leo P. Ross, for appellants. Argued: Percy Squire. 

On brief: Dickie, McCamey & Chilcote, P.C., and 

Mary Barley-McBride, for appellee. Argued: Mary BarleyMcBride.

 

APPEAL from the Franklin County Court of Common Pleas 

HORTON, J. 

{¶ 1} Plaintiffs-appellants, Joyce Winkle et al. ("appellants"), appeal from the 

January 6, 2017 judgment of the Franklin County Court of Common Pleas granting 

Kroger Grocery Store's ("appellee") motion to dismiss appellants' complaint for want of 

prosecution. For the reasons that follow, we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} This action arises from an incident at appellee's store that occurred on 

January 4, 2013, wherein appellant Joyce Winkle alleges that she was "in the Soda isle, 

when she slipped and fell on a slippery floor." (Mar. 28, 2016 Compl. at ¶ 6.) The trial 

court in its order and entry granting appellee's motion to dismiss noted that this is a 

refiled case and that appellants failed to prosecute the initial case prior to voluntarily 
No. 17AP-50 2 

dismissing the same. (Jan. 6, 2017 Order and Entry at 1-2.) The trial court goes on to 

describe the procedural history: 

Shortly after voluntarily dismissing the first cause of action 

Plaintiff refiled. Plaintiff again failed to produce discovery or 

to comply with a Court Order to produce discovery. Plaintiff 

again failed to provide the information needed to allow 

Defendant to determine whether an independent medical 

examination was needed. Plaintiff did not comply with the 

Case Scheduling Order. Plaintiff did not identify any lay or 

expert witnesses in accordance with the Court's Case 

Scheduling Order. 

(Order and Entry at 2.) 

On October 18, 2016, Defendant, The Kroger Co. filed a 

Motion to Compel discovery by the Plaintiff. Plaintiff did not 

respond to Defendant's Motion to Compel and on 

November 4, 2016, this Court ordered that the Plaintiff 

respond to the Defendant's discovery no later than 

November 18, 2016. The Court warned Plaintiff that "failure 

to comply (with the Order compelling discovery) may result in 

additional sanctions including dismissal of the case." Plaintiff 

did not comply with the Court's Order compelling discovery * 

* *. 

(Emphasis sic.) (Order and Entry at 1.) 

{¶ 3} On December 6, 2016, pursuant to Civ.R. 37, appellee filed a motion to 

dismiss plaintiffs' complaint for failure to comply with a court order of discovery and for 

want of prosecution, to which appellants again failed to respond. The trial court granted 

appellee's motion. 

II. ASSIGNMENT OF ERROR 

{¶ 4} Appellants appeal and bring the following assignment of error: 

The trial Court abused its discretion in dismissing Appellants' 

personal injury action as a discovery sanction following the 

violation of merely a single discovery order. 

III. ASSIGNMENT OF ERROR—NO ABUSE OF DISCRETION 

{¶ 5} As we stated in Huntington Natl. Bank v. Zeune, 10th Dist. No. 08AP-1020, 

2009-Ohio-3482, ¶ 17: 

A trial court has broad discretion when ruling upon a motion 

for sanctions under Civ.R. 37(D). State ex rel. Citizens for 
No. 17AP-50 3 

Open, Responsive & Accountable Govt. v. Register, 116 Ohio 

St. 3d 88, 2007 Ohio 5542, ¶ 18, 876 N.E.2d 913. Absent an 

abuse of that discretion, an appellate court will not reverse 

the imposition of a discovery sanction. Nakoff v. Fairview 

Gen. Hosp., 75 Ohio St.3d 254, 1996 Ohio 159, 662 N.E.2d 1, 

syllabus. 

{¶ 6} In addition, in Tymachko v. Ohio Dept. of Mental Health, 10th Dist. No. 

04AP-1285, 2005-Ohio-3454, ¶ 14, we noted that: 

Civ.R. 37(B)(2) provides a court may dismiss an action for a 

party's failure to comply with a discovery order. In Toney v. 

Berkemer (1983), 6 Ohio St.3d 455, 458, 6 Ohio B. 496, 453 

N.E.2d 700, the Ohio Supreme Court has held that in order to 

impose the sanction of dismissal for a party's failure to 

respond to discovery requests, a court must find that failure to 

respond is due to willfulness, bad faith or any fault of the 

party. 

Failure to comply with a discovery request coupled with a subsequent lack of explanation 

for that noncompliance indicates willfulness and bad faith. Zeune at ¶ 21. 

{¶ 7} The trial court specifically found that: 

Plaintiff has been given multiple opportunities to respond to 

discovery, to produce medical records and bills, to produce 

the lien records, to identify the expert witnesses that Plaintiff 

will call at trial and to make those witnesses available for 

deposition. Plaintiffs repeated failure to respond can only be 

deemed willful and deliberate. The Court further finds that 

Defendant has been prejudiced by Plaintiffs discovery failures. 

(Jan. 6, 2017 Order and Entry at 2.) 

{¶ 8} Appellants argue that the trial court abused its discretion in dismissing 

appellants' personal injury action following the violation of merely a single discovery 

order because there was no history of consistent and active involvement by the trial court 

in any discovery dispute. Appellee argues that there is no requirement that the trial court 

have consistent and active involvement. On the contrary, appellee notes that the relevant 

case law is that a non-complying party must receive notice of the possibility of a dismissal 

before a trial court imposes it as a discovery sanction under Civ.R. 37(B)(2)(c). Ohio 

Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101 (1986). 
No. 17AP-50 4 

{¶ 9} In this case, there were years of consistent failure to prosecute this case. 

Even after refiling this action, appellants did not conduct any discovery, provide relevant 

medical bills and records, nor identify expert witnesses or even comply with the case 

scheduling order. Appellee filed a motion to compel discovery and appellants did not 

respond. The trial court ordered that the appellants respond to the discovery and warned 

that "failure to comply may result in additional sanctions including dismissal of the case." 

{¶ 10} Despite an explicit warning that the case might be dismissed, appellant did 

not comply with the court's order. Appellee then filed its motion to dismiss and despite 

receiving at least two notices of the imminent threat of dismissal, appellants again did not 

respond. Based on the above, our review shows that the trial court did not abuse its 

discretion in granting appellee's motion to dismiss and finding that appellants failed to 

prosecute her case and that her failure to prosecute the case was willful and deliberate, 

and that appellee has been prejudiced by appellants' discovery failures. Appellants' 

assignment of error is overruled. 

IV. DISPOSITION 

{¶ 11} Having overruled appellants' sole assignment of error, the judgment of the 

Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

TYACK, P.J. and DORRIAN, J., concur. 

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