COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60625 : LORENZO DELGUIDICE, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : RANDALL PARK MALL, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT JUNE 4, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 160593 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANTS-APPELLEES: CARLA TRICARICHI ROBERT J. KOETH 614 Superior Avenue, N.W. 1280 W. 3rd Street 1020 Rockefeller Building Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Lorenzo Delguidice plaintiff-appellant, hereinafter Appellant timely appeals the manner in which the trial court regulated pretrial discovery, alleging that the trial court abused its discretion in this regard. For the reasons set forth below, we affirm. On or about January 14, 1984, Appellant allegedly slipped and fell on ice in the parking lot of Randall Park Mall, Randall Park Mall and Edward D. Bartolo Corporation, defendants-appellees hereinafter, Appellees owned and operated the parking lot. Appellant owned and operated a pizza shop in the mall. The slip and fall allegedly took place near one of the entrances to the mall known as a service court. The businesses in the mall utilize the closest service court because the entrances are located next to loading and receiving areas. The door that Appellant was heading for on the day of his fall serviced among other businesses his own. Appellant represented that he routinely used this entrance to enter his store and it was where he received shipments. Appellant filed his first complaint in January, 1986. This complaint alleged that Appellant's fall and resulting injuries were caused by Appellees, who owned and operated the premises. Since the trial of this matter was scheduled in April, 1988, Appellant had more than two years to conduct pretrial discovery in preparation for trial. However, this first complaint was voluntarily dismissed by Appellant. Appellees suggest that this -3- voluntary dismissal was based on the fact that Appellant was not prepared to go forward with his case. In November, 1988, Appellant filed a second complaint alleging the January, 1984 slip and fall. Appellant then propounded a set of interrogatories to Appellees, which are at issue in this appeal. Appellees, in response, filed answers to those interrogatories with objections and simultaneously filed a motion for protective order. The record reflected that a substantial number of interrogatories were not answered by Appellees, and this failure to answer was based on their position that the protective order established reasonable grounds for them not to answer. In the motion for protective order, Appellees enumerated four objections. The first was that Appellees fully submitted to Appellant's discovery requests in the initial cause of action. Second, Appellees objected to supplying the names, addresses, and phone numbers of all corporate officers and members of the Board of Directors of the Edward J. DeBartolo Corporation. Thirdly, Appellees objected to providing the names of everyone leasing space in the Randall Park Mall. Lastly, Appellees objected to providing information that Appellees deemed unrelated to the present action. In addition to these specific reasons, Appellees also objected pursuant to Civ. R. 26(B) that the requested discovery created an unreasonable burden on Appellees and served no other purpose than to annoy and harass them. -4- In April, 1989, the trial court granted Appellees' motion for costs in the previously dismissed case and their motion pursuant to Civ. R. 60(B) for protective order. Appellant did not oppose either of these motions. Instead, Appellant filed motions for relief from the orders of the trial court granting the motions. Appellant's motions pursuant to Civ. R. 60(B) were denied. In March, 1990, Appellant filed a request for production of documents, in response to which Appellees filed an objection to all of Appellant's requests for production of documents. Appellees cited two reasons for their objection, an insufficient amount of time and the previously filed protective order. These documents were requested after the deposition of Arthur Pestyk. The record reflected that Appellant made two attempts to compel discovery. Unfortunately, the motion to compel production of documents and brief in opposition to protective order, filed by Appellant, did not pertain to the interrogatories at issue in this appeal. The brief in opposition to protective order was a response relevant to the deposition and testimony of a Dr. Chen, Appellant's treating physician. The motion to compel production of documents pertained to information arising from the deposition of Anton Pestyk. In September, 1990, the case finally went to trial. Appellant testified that the employees entrance had been cleaned and shoveled on the day of his fall, however, he chose not to use it. Appellees argued that the doors Appellant was attempting to -5- utilize were marked "exit only, no trespassing." Despite Pestyk's testimony that the doors were the same since 1977, Appellant argued that the doors were physically changed because at the time of his fall the doors had locks for which Appellant alleged he had a key. Additionally, Appellant argued that the doors had handles, and the doors could be opened from the outside. At the conclusion of all the testimony, the jury returned a defense verdict, which Appellant argued was the result of Appellees' failure to appropriately answer the interrogatories propounded to them. The jurors' answers to their interrogatories's submitted to them during deliberations, reflect that they found no negligence on the part of Appellees and negligence on the part of Appellant. Additionally, the jury found that Appellant's negligence was the proximate cause of his injuries and that he failed to prove any damages. Appellant asserts one assignment of error in support of this appeal, with two sub-issues, all of which can be addressed together. The assignment of error reads: THE TRIAL COURT ABUSED ITS DISCRETION BY UNREASONABLY RESTRICTING THE SCOPE OF DISCOVERY, IN A CASE VOLUNTARILY DISMISSED, WITHOUT PREJUDICE, AND THEN REFILED, THEREBY PREJUDICING PLAINTIFF'S SUBSTANTIAL RIGHT TO PROVE HIS CASE AT TRIAL. A. THE TRIAL COURT ERRED IN LIMITING PLAINTIFF'S ABSOLUTE RIGHT TO VOLUNTARILY DISMISS A CASE, WITHOUT PREJUDICE, AND REFILE THAT CASE. Civ. R. 41(A)(1) provides that "an action may be dismissed by the plaintiff without order of court (a) by filing a notice of -6- dismissal at any time before the commencement of trial...unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim." Appellant alleges that in this case the trial court limited and restricted his right to discovery upon the refiling of the action. This court believes that the more focused and narrow issue of whether the trial abused its discretion with those restrictions is the dispositive issue. In this regard, Appellant has asserted as sub-statement B the following: B. The trial court's unreasonable preclusion of discovery prejudiced plaintiff, thus destroying plaintiff's substantial right to prove his case at trial. Civ. R. 33(A) provides, in pertinent part, "any party may serve any other party written interrogatories to be answered by the party served... each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for the objection shall be stated in lieu of an answer... the party submitting the interrogatories may move for an order under Civ. R. 37 with respect to any objection to or other failure to answer an interrogatory." (Emphasis added.) The Staff Notes of Civ. R. 33 are insightful to the issues in this appeal. Specifically, the notes state: -7- Under Rule 37 the burden is upon the party seeking discovery. Applied to interrogatories under Rule 33 this means that if a party does not answer interrogatories, answers incompletely or objects to interrogatories, the party asking the interrogatories must make a motion under Rule 37(A) to compel discovery or to apply the sanctions allowed by Rule 37(D). As is true throughout the discovery rules, the party seeking discovery must move to compel discovery. There is no automatic judgment or dismissal for failure to answer or properly answer interrogatories. And most important, the court will not automatically consider every objection to interrogatories. The court will not intervene in interrogatory matters until the party seeking discovery files a motion under Rule 37 to compel an answer over objection, a complete answer or for the sanctions allowed by Rule 37 to compel an answer over objection, a complete answer or for the sanctions allowed by Rule 37. (Emphasis added.) Civ. R. 37(A)(2), in pertinent part, states that "upon reasonable notice to other parties and all persons affected thereby, a party may move for an order compelling discovery as follows: Motion. If... a party fails to answer an interrogatory submitted under Rule 33... the discovering party may move for an order compelling an answer..." It is an established principle that with respect to discovery rulings by the trial court, the standard of review is whether the trial court abused its discretion. Tracy v. Merrell Dow Pharmaceuticals, Inc. (1991), 58 Ohio St. 3d 147. Abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Beck v. Matthews (1990), 53 Ohio St. 3d 161, 169. In the instant case, Appellant completely ignored his affirmative duty to compel discovery as the party seeking -8- discovery. The two efforts, on the part of Appellant, to compel discovery did not pertain to the interrogatories at issue in this appeal. There was neither an attempt by way of a motion to compel to require Appellee to answer the interrogatories nor was there a brief in opposition to the protective order relating to the interrogatories. Thus, there was no abuse of discretion in the trial court's granting of the motion for protective order. Lastly, regarding the request for production of documents, it was not an abuse of discretion for the trial court to maintain its previous posture of enforcement of its protective order. A party seeking discovery must take the appropriate procedural steps to compel discovery. The failure to file a motion to compel the answers to the subject interrogatories and the failure to file a brief in opposition to the protective order are in total contradiction to the principle that the party seeking discovery must take the appropriate steps to compel it. In the absence of a motion to compel the answers to interrogatories and/or a brief in opposition to the protective order, this court cannot deem the trial court's judgment unreasonable, arbitrary, or unconscionable. Judgment affirmed. -9- It is ordered that Appellees recover of Appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. FRANCIS E. SWEENEY, P.J., and SPELLACY, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .