COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72583 JANICE YOUNG, ET AL. ACCELERATED DOCKET JOURNAL ENTRY AND OPINION PER CURIAM Plaintiff-appellants vs. FORD MOTOR COMPANY, ET AL. Defendant-appellees DATE OF ANNOUNCEMENT OCTOBER 30, 1997 OF DECISION CHARACTER OF PROCEEDINGS Civil appeal from Court of Common Pleas Case No. CV-311492 JUDGMENT AFFIRMED DATE OF JOURNALIZATION APPEARANCES: For plaintiff-appellants: For defendant-appellees: DAVID M. BENJAMIN, ESQ. KEVIN MAGNUSON, ESQ. 170 South Chillicothe Road Thompson, Hine & Flory P.O. Box 511 3900 Key Center Aurora, OH 44202 127 Public Square Cleveland, OH 44114-1216 - 2 - PER CURIAM: This cause came to be heard on the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs of counsel. Plaintiff-appellants Janice Young and Progressive Insurance ( Plaintiffs ) appeal the trial court's order granting defendant- appellee's Ford Motor Company's ( Ford ) motion to dismiss. The trial court granted Ford's motion to dismiss based on Young's failure to comply with the court's order compelling discovery. Plaintiffs now appeal and argue in their sole assignment of error that under Civ.R. 37(D) dismissal of an action for failure to comply with discovery requests is inappropriate unless there is a demonstration of willfulness or bad faith, and that in this case, neither exists. Plaintiffs claim they revised their answers to interrogatories after Ford complained the answers were insuffi- cient. They sent Ford every document they possessed including a detailed expert's report and a multi-page transcript of a telephone interview done with Young. Moreover, Plaintiffs argue their alleged failure to provide adequate discovery specifically the expert's report does not rise to the level of willfulness or bad faith. Lastly, Plaintiffs complain the sanction of dismissal was too severe considering that Ford was not prejudiced in any way. Ford counter-argues the entire history of the case indicates Plaintiffs ignored virtually every discovery request and, when they did respond, the answers and documents they submitted were insufficient. Furthermore, Ford maintains it moved to dismiss this - 3 - action pursuant to both Civ.R. 37 and 41 and under each rule the trial court was well within its discretion in dismissing Plain- tiffs' claims. Also, Ford states the prejudice incurred resulting from Plaintiffs' discovery failures consists of having to defend itself for 16 months while expending great effort and resources in the process. The outcome of this appeal turns on whether the trial court committed an abuse of discretion in dismissing Plaintiff's case for failure to comply with the court's orders compelling discovery. Plaintiffs were first served with interrogatories on June 26, 1996. They did not respond so Ford sent them a letter on July 11, 1996 requesting that Plaintiffs respond to the discovery requests. On September 4, 1996 Ford sent Plaintiffs a fax complaining that Plaintiffs had still not complied with the discovery requests. Approximately two weeks, later Ford filed a motion to compel and motion for sanctions. The trial court granted Ford's motion to compel and specified that Plaintiffs were to comply with all discovery requests or face sanctions and/or a dismissal. Plaintiffs claim they responded with 110 pages of material including the answers to interrogatories. However, neither the 110 pages of materials nor the answers to interrogatories are in the record so there is no evidence that Plaintiffs actually responded with these items. On November 27, 1996 Ford filed a motion to dismiss claiming all outstanding discovery requests had not been complied with. Plaintiffs opposed the motion stating they had complied with all discovery requests. - 4 - Subsequently, the trial court issued an order stating Plaintiffs failed to fully comply with the court's prior order to compel and set February 24, 1997 as the final discovery deadline. Plaintiffs provided a second set of answers to interrogatories on February 24, 1997. On March 14, 1997 a special status confer- ence was held and Plaintiffs were told to comply with all outstand- ing discovery requests by April 15, 1997. Finally, on April 22, 1997 a special pre-trial meeting was held which resulted in the trial court granting Ford's motion to dismiss, stating as [plaintiffs have] repeatedly failed to comply with this Court's order compelling discovery, pursuant to this Court's entry of 1/22/97, [defendant's] motion to dismiss, with prejudice, is hereby granted. Civ.R. 37 pertains to failure to make discovery and sanctions. Specifically,Civ.R. 37(A)(3) provides a response which is evasive or incomplete is a failure to answer. Shoreway Circle v. Gerald Skoch Co., L.P.A. (January 27, 1994), Cuyahoga App. No. 64510, unreported. In Evan v. Smith (1991), 75 Ohio App.3d 160, the court upheld the dismissal of a complaint due to plaintiffs failure to comply with the trial court's discovery order. Additionally, when a party has failed to abide by the discovery rules, a sanction imposed by the trial court under Civ.R. 37 is within the discretion of the trial court and generally will not be reversed on appeal unless it affirmatively appears from the record that the court abused its discretion and that the sanction was not just. Furcello v. Klammer (1980), 67 Ohio App.2d - 5 - 156, 158. A trial court does not abuse its discretion by ordering the dismissal of an action pursuant to Civ.R. 37 where the record does not show that the failure to comply with discovery orders was due to inability, such as illness, rather than willfulness, bad faith or any fault of the noncomplying party. Rauchentstein v. Kroger Co. (1981), 3 Ohio App.3d 178. In the present case, Plaintiffs were given at least three opportunities to comply with Ford's discovery requests. On each occasion, Plaintiffs failed to comply either by not submitting any documentation at all or by submitting insufficient and inconclusive answers. Plaintiffs disregard of the two trial court orders compelling them to comply amounts to bad faith. There is nothing in the record or in the briefs which explains that something other than Plaintiffs' dilatory conduct was the reason the court orders were not complied with. Under the circumstances, we find no abuse of discretion. Therefore, Plaintiff's sole assignment of error is overruled. Judgment affirmed. - 6 - It is ordered that appellees recover of appellants its 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 Court of Common Pleas 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. PATRICIA A. BLACKMON, PRESIDING JUDGE .