[Cite as Goodpaster v. Banker, 2016-Ohio-1077.] 

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause 

 Remanded 

Date of Judgment Entry on Appeal: March 18, 2016 

Blankenship Massey & Associates, PLLC, and Carl E. Grayson, for PlaintiffAppellee, 

William R. Banker, pro se. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

GLENN GOODPASTER, 

 Plaintiff-Appellee, 

 vs. 

WILLIAM R. BANKER, 

 Defendant-Appellant, 

 and 

U.S. BANCORP, 

US BANK NATIONAL ASSOCIATION, 

ELAN FINANCIAL SERVICES, 

THE PARK NATIONAL BANK, 

 and 

CARD MEMBER SERVICES, 

 Defendants. 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

APPEAL NO. C-150031 

TRIAL NO. A-1207115 

 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

2

CUNNINGHAM, Judge. 

{¶1} Defendant-appellant William R. Banker appeals the trial court’s 

entry granting plaintiff-appellee Glenn Goodpaster’s second motion for discovery 

sanctions and granting a default judgment in favor of Goodpaster. Goodpaster had 

brought suit against Banker and others for breach of fiduciary duty, conversion, and 

fraud in the operation of a joint business venture, Laser Hair Rejuvenation, LLC. 

{¶2} Banker ultimately brought a counterclaim raising three causes of 

action against Goodpaster for breach of fiduciary duty, defamation, slander and 

libel, and intentional interference with a business relationship. The trial court 

granted Goodpaster’s motions for partial summary judgment, leaving only the 

breach-of-fiduciary-duty counterclaim for further resolution. 

{¶3} Banker made delayed and often incomplete responses to 

Goodpaster’s discovery requests. In May 2014, the trial court granted Goodpaster’s 

motion to compel Banker’s production of documents and responses to 

interrogatories. Banker complied only in part. On July 22, 2014, the trial court 

granted Goodpaster’s motion for sanctions and admonished Banker that continued 

noncompliance could result in further sanctions under Civ.R. 37(B). 

{¶4} One month later, the trial court again directed Banker to produce the 

requested documents, including bank records and tax returns, which would 

demonstrate Banker’s receipt and use of funds from Goodpaster. Banker failed to 

provide substantive responses to the court’s order. Goodpaster filed a second 

motion for discovery sanctions under Civ.R. 37 including the striking of Banker’s 

answer and remaining counterclaim, and the entry of a default judgment on all 

claims asserted against Banker. 

{¶5} During this period, Banker continued to file numerous motions 

seeking, for example, “correction of incorrect statements,” reconsideration of 

summary judgment, and a “declaratory ruling.” 
OHIO FIRST DISTRICT COURT OF APPEALS

3

{¶6} On December 11, 2014, the trial court held a hearing on Goodpaster’s 

motion for sanctions and a default judgment. Banker was present at the hearing 

and argued against the granting of a default judgment. But the trial court, noting its 

prior warning to Banker, found that he had persisted in violating the court’s 

discovery orders. As a sanction, the trial court declared that it would grant 

Goodpaster’s motion in its entirety, including the entry of a default judgment. 

{¶7} The trial court immediately proceeded to hold a hearing on damages. 

Goodpaster testified on the measure of the damages incurred. During Goodpaster’s 

examination by his own trial counsel, Banker, appearing pro se, asked the trial 

court, “Do I question the witness now, ma’am?” The trial court responded, “No. 

You don’t get to participate in this at all. Okay.” 

{¶8} When Goodpaster had been excused, Banker inquired of the trial 

court, “Judge, may I ask why don’t I get to question him at all?” The trial court 

responded, 

Because you have a default judgment found against you. You don’t 

get to participate in the hearing. When you don’t – I told you this for 

the last year that this was going to happen, and you didn’t cooperate. 

And you got a default judgment against you. That’s the bottom line. 

{¶9} The trial court journalized its entry granting a default judgment for 

Goodpaster on January 6, 2015. Banker filed a notice of appeal on January 14. 

Although Banker’s timely notice of appeal improperly designates the trial court’s 

December oral announcement of its default-judgment decision as the order being 

appealed from, this defect has not prejudiced Goodpaster. See App.R. 3(D); see also 

Transam. Ins. Co. v. Nolan, 72 Ohio St.3d 320, 649 N.E.2d 1229 (1995), syllabus; 

Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 257, 259, 436 N.E.2d 

1034 (1982). Goodpaster had notice of the appeal and ample opportunity to 

respond. Accordingly, we address the merits of Banker’s assignments of error 
OHIO FIRST DISTRICT COURT OF APPEALS

4

where possible. See Bowling v. Gordon Real Estate, LLC, 1st Dist. Hamilton Nos. 

C-070377, C-070378 and C-070387, 2008 Ohio App. LEXIS 5913, *3-4 (Sep. 24, 

2008). 

{¶10} From Banker’s argument, we glean that in his first assignment of 

error he alleges that the trial court erred in ruling on various contract claims when it 

entered a default judgment. The alleged error is not demonstrated in this record as 

neither Goodpaster’s amended complaint nor Banker’s counterclaim raised breachof-contract claims. The first assignment of error is overruled. 

{¶11} In his second assignment of error, Banker argues that the trial court 

“overreached” in granting a default judgment as a sanction for discovery violations, 

and that the award of damages was not “accurate[] or justifiable.” We agree, in part. 

{¶12} Civ.R. 37(B)(2)(c) provides that if a party fails to obey an order to 

provide or permit discovery, the trial court “may make such orders in regard to the 

failure as are just, [including] [a]n order * * * dismissing the action * * * or 

rendering a judgment by default against the disobedient party.” See Dater v. 

Charles H. Dater Found., 1st Dist. Hamilton Nos. C-020675 and C-020784, 2003-

Ohio-7148, ¶ 36. Civ.R. 41(B)(1) also provides that where a party “fails to * * * 

comply with * * * any court order, the court * * * may, after notice * * * dismiss an 

action or claim.” See Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 518, 721 

N.E.2d 1029 (2000). 

{¶13} The decision to dismiss a case for repeated and willful discovery 

violations is consigned to the discretion of the trial court. See Quonset Hut, Inc. v. 

Ford Motor Co., 80 Ohio St.3d 46, 47, 684 N.E.2d 319 (1997). A trial court does not 

abuse its discretion by ordering dismissal or granting a default judgment where the 

record shows that the conduct of the sanctioned party was “so negligent, 

irresponsible, contumacious or dilatory as to outweigh the policy that disposition of 
OHIO FIRST DISTRICT COURT OF APPEALS

5

litigation should be upon its merits.” Evans v. Smith, 75 Ohio App.3d 160, 163, 598 

N.E.2d 1287 (1st Dist.1991). 

{¶14} The record submitted for our review is replete with evidence of 

Banker’s refusal to comply with the trial court’s discovery orders within clearly 

stated time periods, and without explanation. Coupled with his filing of numerous, 

frivolous pretrial motions, these delays caused a substantial impediment to 

discovery being completed and the case being set for trial. As early as July 2014, 

months before the court ruled on Goodpaster’s motion for a default judgment, the 

trial court found that Banker had failed to produce ordered discovery materials, 

including documents and answers to written interrogatories. The trial court 

ordered Banker to fully comply within ten days. It warned Banker in the entry that 

continued noncompliance could result in further sanctions under Civ.R. 37(B). 

Nonetheless, Banker’s dilatory behavior continued. 

{¶15} Banker’s flagrant and substantial disregard for discovery requests 

and the trial court’s orders fully justified dismissal on procedural grounds. See

State ex rel. Shemo v. City of Mayfield Hts., 92 Ohio St.3d 324, 325, 750 N.E.2d 167 

(2001). The trial court, therefore, did not abuse its discretion in granting a default 

judgment against Banker on Goodpaster’s claims as a sanction under Civ.R. 37(B). 

{¶16} But even though a party is in default, the plaintiff must still prove his 

damages and the trial court must ascertain what damages are appropriate. See

Civ.R. 54(C) and 55(C); see also W2 Properties, LLC v. Haboush, 196 Ohio App.3d 

194, 2011-Ohio-4231, 962 N.E.2d 858, ¶ 29 (1st Dist.). 

{¶17} While the trial court has discretion in determining the measure of 

the damages, and the method of proof of those damages, that discretion is not 

unlimited. Even if a defendant is in default, he has a right to appear at the damages 

hearing, to object to the introduction of evidence that is improper, and to participate 

in the hearing to minimize the damages. The denial of this right is error. See Craft 
OHIO FIRST DISTRICT COURT OF APPEALS

6

v. Craft, 63 Ohio App.3d 499, 500, 579 N.E.2d 289 (9th Dist.1989); see also 

Prather v. Am. Med. Response, Inc., 9th Dist. Summit No. 20965, 2002-Ohio-5261, 

¶ 16. 

{¶18} Here, it is clear from the transcript of the proceedings of the 

damages hearing that Banker had sought to participate in the hearing, and that the 

trial court had erroneously denied him that opportunity. See Craft at 500. 

Therefore, the trial court’s damages decision was not supported by a sound 

reasoning process, and was an abuse of its discretion. See AAAA Ents., Inc. v. River 

Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 

(1990). The second assignment error is sustained in part, and overruled in part. 

{¶19} Banker’s third assignment of error, in which he argues that the trial 

court erred in denying his “motion for declaratory ruling,” is overruled. Ohio’s 

Declaratory Judgment Act, found in R.C. Chapter 2721, plainly “contemplate[s] a 

distinct proceeding * * * initiated by the filing of a complaint,” or a counterclaim. 

Fuller v. German Motor Sales, Inc., 51 Ohio App.3d 101, 103, 554 N.E.2d 139 (1st 

Dist.1988). A “motion for declaratory ruling” is a legal chimera “inadequate to 

invoke the jurisdiction of [a] court pursuant to R.C. Chapter 2721.” Id. Banker 

failed to raise a claim for declaratory judgment in his counterclaim. He sought 

declaratory relief solely by means of a motion. Therefore, he failed to invoke the 

jurisdiction conferred by the act, and the trial court did not err in denying the 

motion. 

{¶20} The fourth assignment of error, in which Banker asserts that the trial 

court erred in not granting a hearing on his claims for intentional infliction of 

emotional distress, is overruled. Banker also failed to raise this cause of action in 

his counterclaim. 

{¶21} Having found that the trial court erred in denying Banker the 

opportunity to participate in the damages hearing, we reverse the trial court’s award 
OHIO FIRST DISTRICT COURT OF APPEALS

7

of default-judgment damages. We remand this cause to the trial court for it to 

conduct a damages hearing in accordance with law and this opinion. The trial 

court’s judgment is affirmed in all other respects. 

Judgment accordingly. 

FISCHER, P.J., andHENDON, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.