[Cite as Sullivant Holdings L.L.C. v. Virgenia, Inc., 2014-Ohio-2149.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Sullivant Holdings, L.L.C., : 

 Plaintiff-Appellee, : 

v. : No. 13AP-960 

 (M.C. No. 13CVG-9266) 

Virgenia, Inc. et al., : 

 (REGULAR CALENDAR) 

 Defendants-Appellees, : 

(Mohamed Fateh, : 

 Defendant-Appellant). : 

 

D E C I S I O N 

Rendered on May 20, 2014 

 

Richard B. Parry, for appellant. 

 

APPEAL from the Franklin County Municipal Court 

CONNOR, J. 

{¶ 1} Defendant-appellant, Mohamed Fateh, appeals from a judgment of the 

Franklin County Municipal Court, in favor of plaintiff-appellee, Sullivant Holdings, L.L.C. 

For the reasons that follow, we affirm. 

I. Facts and Procedural History 

{¶ 2} On March 20, 2013, appellee filed a "Complaint in Forcible Entry and 

Detainer and Lease Default" in the Franklin County Municipal Court against several 

defendants, including Virgenia, Inc. ("Virgenia"), Beverage Depot Plus, L.L.C. 

("Beverage"), and appellant. The complaint alleges that Virgenia and its assigns and 

subleases violated the terms of a commercial lease by failing to pay rent in accordance 

with the agreement. The complaint seeks restitution of the leased premises located at 
No. 13AP-960 2 

3600 Sullivant Avenue, Columbus, Ohio, and an award of monetary damages in the total 

amount of $15,000. 

{¶ 3} None of the named defendants appeared at the initial eviction proceeding 

and the trial court issued an order of restitution on April 15, 2013. Thereafter, on April 22, 

2013, appellant and Beverage each filed a motion for relief from judgment and a motion 

for leave to file an answer to the complaint. On May 23, 2013, the trial court denied the 

motions filed by Beverage but granted appellant's motions. 

{¶ 4} On July 16, 2013, the trial court granted a default judgment against Virgenia 

in the amount prayed for in the complaint. Thereafter, on August 5, 2013, Nedeem 

Qurashi, counsel for the named defendants, moved the court to withdraw from the case. 

The stated grounds for the motion to withdraw are that counsel had been unable to 

contact his clients and that they had not honored the fee agreement. Qurashi served 

appellant with a copy of the motion to withdraw by regular mail at 3600 Sullivant Avenue, 

the leased premises. On that same date, appellee filed a motion to compel discovery 

pursuant to Civ.R. 37. 

{¶ 5} On September 23, 2013, the trial court granted appellee's motion to compel 

discovery and ordered Beverage and appellant to respond to the pending discovery 

requests within 14 days thereof. The trial court served the order upon appellant by 

regular mail at 4498 Westerpool Circle, Columbus, Ohio 43228. The trial court 

subsequently granted Qurashi's motion to withdraw on September 11, 2013. The trial 

court served the entry upon appellant by regular mail at the Westerpool address.1

{¶ 6} Appellee filed a motion for default judgment, pursuant to Civ.R. 37(B)(2)(c), 

on October 13, 2013. Counsel for appellee served appellant with the motion by regular 

mail at the Westerpool address. Neither appellant nor Beverage responded to the motion. 

{¶ 7} On October 29, 2013, the trial court issued an entry granting the motion for 

default and entering judgment, jointly and severally, against all defendants in the amount 

of $15,000, plus costs. Appellant timely appealed to this court. 

II. Assignment of Error 

{¶ 8} Appellant assigns the following sole assignment of error for our review: 

 

1 The court notes that the only "Entry and Order" in the record is the one regarding Beverage. However, the 

trial court did serve the entry on appellant at the Westerpool address. 
No. 13AP-960 3 

THE TRIAL COURT ERRED IN GRANTING A DEFAULT 

JUDGMENT FOR THE PLAINTIFF, SULLIVANT 

HOLDINGS LLC[.] 

III. Standard of Review 

{¶ 9} Civ.R. 37(B)(2)(c) 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 

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.) 

{¶ 10} 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. 

IV. Legal Analysis 

{¶ 11} In appellant's sole assignment of error, appellant contends that the trial 

court abused its discretion when it granted default judgment as a sanction for appellant's 

failure to comply with an order compelling discovery. Appellant maintains that his trial 

counsel abandoned him "at the eleventh hour at a critical point," and that his subsequent 

failure to comply with the trial court order is excusable. (Appellant's brief, 8.) The record 

does not support appellant's argument. 
No. 13AP-960 4 

{¶ 12} "A party '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.' " 

Tymachko, D.O. v. Ohio Dept. of Mental Health, 10th Dist. No. 04AP-1285, 2005-Ohio3454, ¶ 15, quoting Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 49 (1997). 

Indeed, "where the plaintiff fails to prosecute, or comply with these rules or any court 

order, the court upon motion of a defendant or on its own motion may, after notice to the 

plaintiff's counsel, dismiss an action or claim." Id. 

{¶ 13} Although the record corroborates appellant's claim that his former counsel 

failed to serve him with a copy of the motion to withdraw, we note that the relevant local 

rule does not require such service. See Loc.R. 3.02 of the Franklin County Municipal 

Court. Rather, under the local rule, a motion to withdraw as counsel will not be 

considered unless it contains "counsel's professional statement that, if allowed, a copy of 

the entry will be mailed immediately to the last known address of the client." Loc.R. 

3.02(2)(c) of the Franklin County Municipal Court. Appellant does not allege that his 

former counsel failed to comply with the rule. Moreover, as noted above, the record 

clearly demonstrates that the trial court served appellant with a copy of an entry granting 

counsel's motion to withdraw. 

{¶ 14} Additionally, the record shows that the trial court served appellant with the 

order compelling discovery and that appellee's counsel subsequently served appellant 

with a copy of the motion for default judgment. Thus, the fact that appellant was not 

served with the motion to withdraw does not excuse appellant's subsequent failure to take 

any action either with regard to the trial court's order compelling discovery or appellee's 

motion for default judgment. Appellant had prior notice that a default judgment was 

possible due to his failure to comply with the trial court's discovery order and he had a 

reasonable opportunity to defend against a default. 

{¶ 15} Default judgment may be employed as a sanction where a " parties' failure 

to comply with a court order is due to willfulness, bad faith or any fault of the party." See

Watkins at ¶ 22. (Emphasis added.) However, " '[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 
No. 13AP-960 5 

established from the record.' " Id. quoting Tymachko, at ¶ 14. In granting the motion for 

default, the trial court stated: 

Defendants Beverage and Fateh have abandoned this 

litigation. They have lost contact with their lawyer (whom they 

failed to pay for his services) and they have failed or refused to 

participate in the discovery process. 

Under the circumstances, the court is of the opinion that 

judgment by default is appropriate in this case. 

(Judgment Entry, 2.) 

{¶ 16} The trial court specifically found that appellant had "abandoned this 

litigation." The record establishes that appellant completely failed to respond to 

appellee's request for production of documents and interrogatories; failed to respond to 

appellee's motion to compel discovery; failed to comply with the trial court order 

compelling appellant to provide discovery responses; and failed to oppose appellee's 

motion for default. As noted above, appellant has provided no justifiable reason for his 

complete failure to comply with the trial court's discovery order. See Exact Software N. 

Am. v. Infocon, Inc., 479 F.Supp.2d 702, 711 (N.D.Ohio 2006), citing Bank One of 

Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir.1990) (noting that entry of default 

judgment is not an abuse of discretion where a party has the ability to comply with 

discovery orders but fails to do so). Although appellant argues that he is but an employee 

of Beverage and that there exists no legal basis for a personal judgment against him, the 

record shows that appellant's own unexcused failure to comply with the trial court's 

discovery order was the sole reason that the trial court did not reach the merits of 

appellant's potential defenses. Under the circumstances, the trial court acted within its 

discretion when it granted default judgment. Appellant's sole assignment of error is 

overruled. 

V. Conclusion 

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

discretion when it entered a default judgment against appellant as a sanction for 

appellant's unexcused failure to comply with an order compelling discovery. Having 
No. 13AP-960 6 

overruled appellant's sole assignment of error, we affirm the judgment of the Franklin 

County Municipal Court. 

Judgment affirmed. 

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

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