COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70535 RICHARD WILLIS : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : SHEILA PEOPLES : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1997 CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court, No. 95-CVG-11386. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Charles P. Royer, Esq. McCarthy, Lebit, Crystal & Haiman 1800 Midland Building 101 Prospect Avenue, W. Cleveland, OH 44115 For Defendant-Appellant: Cynthia D. Smith, Esq. 13006 Buckeye Road Cleveland, OH 44120 -2- DAVID T. MATIA, J.: Sheila Peoples, defendant-appellant, appeals the Cuyahoga County Court of Common Pleas' dismissal of her counterclaim against Richard Willis, plaintiff-appellee. Defendant-appellant raises three assignments of error. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS On June 15, 1995, Richard Willis, plaintiff-appellee, filed a Complaint in Forcible Entry and Detainer against Sheila Peoples, defendant-appellant, in Cleveland Municipal Court. In the first cause of action, plaintiff-appellee sought restitution of the premises alleging defendant-appellant failed to pay monthly rent in violation of the terms of their rental agreement. In the second cause of action, plaintiff-appellee sought judgment against defendant-appellant for money damages in the amount of $2,850.00 plus $32.00/day until defendant-appellant vacates the premises. A hearing was held and on July 7, 1995, judgment was rendered for defendant-appellant on the first count based upon the finding that plaintiff-appellee did not attempt to collect the rent that was due. On July 24, 1995, defendant-appellant filed an answer to the remaining cause of action and a counterclaim alleging: 1) plaintiff-appellee failed to maintain the premises in a fit and habitable condition, 2) plaintiff-appellee abused the landlord's right to access, 3) sexual harassment and battery causing -3- emotional distress and 4) retaliatory eviction causing emotional distress. Plaintiff-appellee commenced discovery and served defendant- appellant with his first set of interrogatories on August 11, 1995. On September 25th, plaintiff-appellee filed a motion to compel discovery. Subsequently, defendant-appellant was ordered by the trial court to comply with the discovery by October 17, 1995. Defendant-appellant complied with this court order. On October 19, 1995, plaintiff-appellee served his first request for the production of documents. Defendant-appellant failed to respond to this request. During the next two months, a number of motions were filed by both parties including another motion to compel discovery by plaintiff-appellee. The trial court held a pretrial on December 20, 1995, where it granted plaintiff-appellee's motion to compel discovery. Again, the record reflects defendant-appellant failed to produce the documents requested or request an extension of time. Various other forms of discovery were had by both parties including a number of depositions, however, defendant-appellant did not respond to the request for production of documents. On January 29, 1996, plaintiff-appellee filed a motion to dismiss defendant-appellant's counterclaim due to defendant-appellant's refusal to comply with the trial court's discovery order. The trial court issued another order compelling discovery: Plaintiff's motion to compel production of documents is granted. Defendant is to produce documents requested by plaintiff on or about -4- 10/14/95 by 3/1/96. Defendant is to file notice of production of said documents with this court by end of business 3/4/96. * * * Ruling on plaintiff's motion to dismiss is to be issued 3/6/96. Defendant-appellant failed to provide the necessary documents and did not provide the court with any documentation relative to her failure to comply with the court order. On March 18, 1996, the trial court granted plaintiff-appellee's motion to dismiss. Plaintiff-appellee then voluntarily dismissed the remainder of his complaint without prejudice. On March 26, 1996, defendant- appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B). The motion was denied on June 14, 1996. Defendant-appellant timely filed this appeal. II. FIRST AND SECOND ASSIGNMENTS OF ERROR As Sheila Peoples', defendant-appellant's, first and second assignments of error contain similar issues of law and fact, we will consider them concurrently: I. THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING APPELLANT'S COUNTERCLAIM, PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 37(B)(2)(C), WHERE APPELLANT'S DEFAULT ON THE DISCOVERY ORDER WAS NOT IN BAD FAITH AND LESS HARSH ALTERNATIVES WERE AVAILABLE. II. THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING APPELLANT'S COUNTERCLAIM, PURSUANT TO CIVIL RULES 41(B)(1) AND 37(B)(2)(C), WHERE THE COURT FAILED TO PROVIDE THE REQUISITE NOTICE OF ITS INTENTION TO DISMISS THE CASE FOR APPELLANT'S -5- NONCOMPLIANCE WITH THE DISCOVERY ORDER. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING PLAINTIFF-APPELLEE'S MOTION TO DISMISS. Defendant-appellant argues the trial court abused its discretion in granting plaintiff-appellee's motion to dismiss. Specifically, defendant-appellant argues the following facts demonstrate defendant-appellant made a good faith attempt to comply with the discovery demands: 1) defendant-appellant filed a motion in opposition to plaintiff-appellee's first motion to compel on October 5, 1995, 2) defendant-appellant faxed a letter to plaintiff-appellee's counsel supplementing the answers to the first set of interrogatories, 3) the deposition testimony of Sheila Peoples and Susan Radbourne supplied all of the information that was available at that time in regards to the discovery demands, and 4) the delivery of documents concerning the deficiency of the property from the Section 8 Housing Inspection. All of these factors, defendant-appellant argues, demonstrate her good faith effort at complying with the discovery demands. As such, the dismissal of her claims for failure to comply with discovery was too harsh a decision by the trial court. A more equitable decision, defendant-appellant argues, would have been to exclude from trial any of the records or documents that were not timely disclosed. Finally, defendant-appellant argues the trial court failed to provide the requisite notice of its -6- intention to dismiss the counterclaim for noncompliance with the discovery order pursuant to Civ.R. 41(B)(1). Defendant-appellant's first and second assignments of error are not well taken. B. STANDARD OF REVIEW: DISMISSAL PURSUANT TO CIV.R. 37(B). Civ.R. 37(B)(2) provides various sanctions for a failure to comply with discovery. The range includes the imposition of expenses for costs incurred in obtaining the required discovery to that of dismissal of the action. Civ.R. (B)(2)(c). See Russo v. Goodyear (1987), 36 Ohio App.3d 175. It is well established that a trial court has broad discretion under Civ.R. 37 to impose sanctions for failure to comply with discovery requests. An abuse of that discretion connotes more than an error of judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, citing State v. Adams (1980), 62 Ohio St.2d 151, 157. However, it is also well established that the harsh remedies of default and dismissal should only be utilized when the failure to comply with discovery is due to willfulness, bad faith or fault on behalf of the respondent. Societe Internationale v. Rogers (1958), 357 U.S. 197; Cunningham v. Garruto (1995), 101 Ohio App.3d 656. As stated in the syllabus of Toney v. Berkemer (1983), 6 Ohio St.3d 455, syllabus: It is an abuse of discretion for a trial court to grant a default judgment for failing to respond to discovery requests when the -7- record does not show willfulness or bad faith on the part of the responding party. In conjunction with the discretionary power of the trial court to dismiss an action for failure to respond to discovery requests is the requirement that the trial court put the offending party on notice that its continued failure to comply will result in the dismissal of the action. In Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99, the Supreme Court pronounced: We hold the notice requirement of Civ.R. 41(B)(1) applies to all dismissal with prejudice, including those entered pursuant to Civ.R. 37(B)(2)(c) for failure to comply with discovery orders. A dismissal on the merits is a harsh remedy that calls for the due process guarantee of prior notice. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN GRANTING PLAINTIFF-APPELLEE'S MOTION TO DISMISS. In the case sub judice, it is undisputed that plaintiff- appellee filed a request for production of documents on October 19, 1995. Defendant-appellant did not respond. On November 28, 1995, plaintiff-appellee filed a motion to compel the production of documents. Still, defendant-appellant failed to respond. A pretrial was held on December 20, 1995, and the trial court granted plaintiff-appellee's motion to compel discovery. Again, the record reflects defendant-appellant failed to produce the documents requested or request an extension of time. On January 29, 1996, plaintiff-appellee filed a motion to dismiss defendant-appellant's counterclaim due to defendant- appellant's refusal to comply with the trial court's discovery -8- order. The trial court issued yet another order compelling discovery: Plaintiff's motion to compel production of documents is granted. Defendant is to produce documents requested by plaintiff on or about 10/14/95 by 3/1/96. Defendant is to file notice of production of said documents with this court by end of business 3/4/96. * * * Ruling on plaintiff's motion to dismiss is to be issued 3/6/96. Again, defendant-appellant failed to provide the necessary documents and did not provide the court with any documentation relative to her failure to comply with the court order. On March 18, 1996, the trial court granted plaintiff-appellee's motion to dismiss. Initially we find that the trial court put defendant-appellant on sufficient notice of dismissal pursuant to Civ.R. 41(B)(1) when it informed defendant-appellant that it would reserve ruling on plaintiff-appellee's motion to dismiss for failing to provide the documents requested until after the final deadline issued for discovery. See Shoreway Circle, Inc. v. Gerald Skoch Co., L.P.A. (1994), 92 Ohio App.3d 823. We also find the facts in this case to be somewhat analogous to the facts in Russo, supra, where the trial court stated: [O]nce having been ordered to provide discovery, the plaintiffs cannot stand mute or stand on the same reason given for their failure to respond previously considered by the court. They must satisfy the trial court that their continued refusal to comply is genuinely founded on a good faith excuse. -9- There must be a showing that their continued failure to comply is not the result of any willfulness or bad faith on their part. This they have not done. The plaintiffs' inability to obtain information sought by Goodyear is not borne out in the record. ***. Under the facts of this case, the plaintiffs' continued refusal to comply with the court ordered discovery justified the most severe sanction provided under the rules-- dismissal. ***. No abuse of discretion has been shown in the trial court's dismissal of this action. (Citations omitted.) As was the case in Russo, defendant-appellant claimed some of the information sought was already in possession of plaintiff- appellee. However, the record does not support this conclusion. As in Russo, defendant-appellant claims her lack of response was due to her inability to produce the information sought, and not a willful refusal or bad faith. However, the continued failure to respond in any manner even after the trial court put defendant- appellant on notice of its intent of dismissal, cannot be construed as a good faith effort to comply. Civ.R. 41(B)(1); Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99. Considering defendant-appellant's continued refusal to make any type of response to the trial court's orders, we cannot hold that the trial court's decision was unreasonable, arbitrary or unconscionable. Therefore, the trial court did not abuse its discretion in granting plaintiff-appellee's motion to dismiss. Defendant-appellant's first and second assignments of error are not well taken. -10- -11- III. THIRD ASSIGNMENT OF ERROR Sheila Peoples, defendant-appellant, states as her third assignment of error: III. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT WHERE APPELLANT SET FORTH, BY AFFIDAVIT, A MERITORIOUS CLAIM, EXCUSABLE NEGLECT AND TIMELY FILING. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT-APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT. Defendant-appellant argues the trial court abused its discretion when it denied her motion for relief from judgment. Specifically, defendant-appellant argues that all three requirements necessary for relief from judgment have been met: 1) the motion was timely filed, 2) genuine issues of material fact exist concerning her claim and 3) not only does defendant- appellant's failure to comply with the discovery demand constitute "excusable neglect", but considering the facts and circumstances surrounding this case, justice so requires the motion for relief from judgment be granted. Defendant- appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIV.R. 60(B). Civ.R. 60(B) governs motions for relief from judgment and provides in part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: -12- (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. The Ohio Supreme Court has summarized the requirements necessary to warrant relief from judgment pursuant to Civ.R. 60(B) as follows: To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion was made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after judgment, order or proceeding was entered and taken. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146 syllabus at paragraph two. The failure by a moving party to establish any one of these three (3) elements warrants denial of the motion for relief from judgment. Rose Chevrolet, Inc. v. -13- Adams (1988), 36 Ohio St.3d 17, 20. Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App.2d 285. The determination as to whether to grant a Civ.R. 60(B) motion for relief from judgment is within the sound discretion of the trial court and will not be reversed upon appeal absent an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75. In this instance, the trial court's ruling on defendant-appellants' motion for relief from judgment will not be disturbed unless it is clear that the decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, supra. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT DENIED DEFENDANT-APPELLANT'S CIV.R. 60(B) MOTION. In the present case, we find defendant-appellant's continued disregard for court orders and/or her failure to respond in any manner does not constitute "excusable neglect." Civ.R. 60(B)(1). Rather, defendant-appellant's inaction can best be labeled "a complete disregard for the judicial system." GTE, supra; Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18. Moreover, as a general rule, the neglect of a party's attorney will be imputed to the party for purposes of Civ.R. 60(B)(1). GTE, supra; Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64. For this reason, defendant-appellant's claim under Civ.R. 60(B)(1) must fail. Additionally, we cannot find defendant-appellant's claim for relief from judgment should have been granted under the catchall "justice so requires." Civ.R. 60(B)(5). As the court stated at -14- page two of Wolotsky v. Portage Path Community Mental Health center (April 12, 1995), Summit App. No. 16827, unreported, "[w]e desire neither to penalize those parties that have been diligently abiding by the rules and time limits, nor to set a precedent that excuses an attorney's inattentiveness in the absence of extenuating circumstances." See, also, Brown v. Akron Beacon Journal Publishing Co. (1991), 81 Ohio App.3d 135. In this case, there are no such extenuating circumstances to justify relief. Defendant-appellant's third assignment of error is not well taken. Judgment affirmed. -15- It is ordered that appellee recover of appellant his 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 Cleveland Municipal 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. JAMES D. SWEENEY, P.J. and PATRICIA BLACKMON, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .