in the court of appeals first appellate district of ohio hamilton county

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IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
SHERI FOSTER,
Plaintiff-Appellant,
vs.
:
:
APPEAL NO. C-140002
TRIAL NO. A-1203215
JUDGMENT ENTRY.
:
CATHY R. COOK,
Defendant-Appellee.
:
:
We consider this appeal on the accelerated calendar, and this judgment entry is
not an opinion of the court. See S.Ct.R.Rep.Op. 2; App.R. 11.1(E); 1st Dist. Loc.R. 11.1.1.
Plaintiff-appellant Sheri Foster filed a complaint against defendant-appellee Cathy
Cook on April 26, 2012. The complaint alleged that Cook had been negligent in her
representation of Foster in a domestic-relations action. Foster specifically asserted that
Cook had breached her fiduciary duty, overcharged for services, double-billed, allowed her
paralegal to engage in the unauthorized practice of law, committed malpractice, and had
breached the attorney-client privilege. Cook filed an answer, and later filed various
discovery requests in September of 2012. Despite several follow-up attempts by Cook’s
counsel, Foster never responded to the discovery requests. In June of 2013, Cook filed a
motion to compel Foster to comply with discovery. On August 15, 2013, the trial court
granted the motion to compel and ordered Foster to respond to the discovery within 30
days. Foster failed to do so. On September 23, 2013, Cook filed a Civ.R. 37 motion for
sanctions. Following a hearing, the trial court granted Cook’s motion for sanctions. It
ordered Foster to pay Cook’s attorney fees, and it dismissed Foster’s complaint with
prejudice.
O HIO F IRST D ISTRICT C OURT OF A PPEALS
Foster now appeals, arguing in her sole assignment of error that the trial court
erred in granting Cook’s motion for sanctions. She first contends that the trial court erred
in dismissing her complaint with prejudice without warning her that noncompliance with
discovery could result in dismissal. Before a trial court may dismiss a case with prejudice
pursuant to Civ.R. 41(B)(1), plaintiff’s counsel must have notice that dismissal is a
possibility and must be given a reasonable opportunity to defend against dismissal.
Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 518, 721 N.E.2d 1029 (2000), quoting
Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 684 N.E.2d 319 (1997), syllabus.
This rule of law applies to dismissals with prejudice entered pursuant to Civ.R. 37 for
failure to comply with discovery. Hillabrand at 518, quoting Ohio Furniture Co. v.
Mindala, 22 Ohio St.3d 99, 101, 488 N.E.2d 881 (1986).
In her Civ.R. 37 motion for sanctions, Cook requested that the trial court dismiss
Foster’s complaint as a sanction for her discovery violations. We find that this motion
provided Foster with notice that dismissal of her action for failure to comply with
discovery was a possibility. We further find that Foster had a reasonable opportunity to
defend against dismissal. Foster failed to file a responsive motion to Cook’s motion for
sanctions, despite having both time and opportunity to do so. Her counsel did argue
against dismissal at a hearing on the motion. Because Foster had both notice of a
potential dismissal and an opportunity to defend against dismissal, her argument is
without merit.
Foster next contends that the trial court abused its discretion in dismissing her
complaint with prejudice when there was no evidence of willful misconduct or bad faith.
We apply a heightened abuse-of-discretion standard when reviewing a trial court’s
dismissal of a complaint for a discovery violation under Civ.R. 37. See Dater v. Charles H.
Dater Found., 1st Dist. Hamilton Nos. C-020675 and C-020784, 2003-Ohio-7148, ¶ 38,
citing Quonset Hut at 48. A trial court abuses its discretion under this heightened
standard when a case is dismissed on a record “that fails to demonstrate willfulness or bad
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O HIO F IRST D ISTRICT C OURT OF A PPEALS
faith by the sanctioned party.” Dater, 1st Dist. Hamilton Nos. C-020675 and C-020784,
2003-Ohio-7148 at ¶ 38, citing Toney v. Berkemer, 6 Ohio St.3d 455, 453 N.E.2d 700
(1983).
In this case, Foster filed her complaint on April 26, 2012, and the trial court
dismissed the action on December 4, 2013. In that 17-month period, Foster failed to file a
single document or pursue her action in any manner. She did not respond to Cook’s
requests for discovery, nor did she file responsive motions to Cook’s motion to compel and
motion for sanctions. The record does indicate that some discovery was provided to Cook,
although not filed with the court, following Cook’s filing of the motion for sanctions.
Cook’s counsel conceded that some discovery had been received, but challenged the
quality of Foster’s response, contending that it consisted of denials of very basic requests
for admissions. We have no way to review the information that Foster provided, as it was
not made part of the record.
We hold that Foster’s complete failure to pursue her action demonstrated
willfulness and bad faith, and that the trial court did not abuse its discretion in dismissing
her complaint. No error occurred in the trial court’s granting of Cook’s motion for
sanctions. Foster’s assignment of error is overruled, and the judgment of the trial court is
affirmed.
A certified copy of this judgment entry is the mandate, which shall be sent to the
trial court under App.R. 27. Costs shall be taxed under App.R. 24.
HILDEBRANDT, P.J., HENDON and DINKELACKER, JJ.
To the clerk:
Enter upon the journal of the court on October 22, 2014
per order of the court ____________________________.
Presiding Judge
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