WILLIAM JAMES COLLIAS, PLAINTIFF-APPELLANT, v. RON REDBURN, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 16-11-10
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY
May 14, 2012
[Cite as Collias v. Redburn, 2012-Ohio-2128.]
WILLAMOWSKI, J.
Appeal from Wyandot County Common Pleas Court Trial Court No. 09-CV-0071 Judgment Affirmed
Shane M. Leuthold for Appellant
John A. Fiocca, Jr. for Appellee, John Butcher
Ronald Redburn, Appellee
Larry P. Meyer for Appellee, Wyandot Co. Agricultural Society
WILLAMOWSKI, J.
{¶1} Plaintiff-Appellant, William James Collias (“Collias“), appeals the judgment of the Wyandot County Court of Common Pleas granting summary judgment in favor of Defendant-Appellee, Wyandot County Agricultural Society (“the WCAS“), and also dismissing Collias’ claims against Defendant-Appellee, John Butcher (“Butcher“). On appeal, Collias contends that the trial court erred in granting summary judgment in favor of the WCAS on the basis of immunity. Collias also claims that the trial court should not have dismissed his claims against Butcher for Collias’ failure to respond to discovery and his failure to substitute Butcher‘s Estate pursuant to
{¶2} On April 14, 2009, Collias filed this current action, claiming that he suffered personal injury when he was a vendor at the Wyandot County Fair in September of 2005. Collias alleges that he received an electrical shock due to improper electrical connections when he opened the door to his trailer at the fairgrounds. As a result of this shock, Collias maintains that he suffered severe and debilitating injuries.
{¶3} In September of 2005, Collias set up his vendor‘s trailer at the Wyandot County Fair in Upper Sandusky, Ohio. Butcher was an electrician working at the fair and he connected Collias’ trailer to the electrical panel/power
{¶4} Collias claims that Redburn‘s trailer was again hooked up to the electrical control panel the following day. However, the problem apparently had not been remedied and Collias claims it again caused an electric current to flow through Collias’ trailer. Collias was shocked when he touched the door of his trailer. The WCAS represents that Collias’ version of the sequence of events is not supported by the evidence in the record. However, the details pertaining to these facts are not material to the issues that were before the trial court and that are in dispute in this appeal.
{¶5} Collias filed his original complaint against Redburn, Butcher, the WCAS, and the Wyandot County Fair1 on September 13, 2007, in Wyandot County Civil Case No. 07-CV-0170, alleging multiple counts of negligence against the defendants and also requesting declaratory judgment finding that
{¶6} One year later, on April 14, 2009, Collias again filed his Complaint, Wyandot County Civil Case No. 09-CV-0071, against the same defendants.2 Butcher and WCAS filed motions to compel discovery and filed motions for sanctions to dismiss pursuant to
{¶7} Collias appealed this decision. On May 24, 2010, this Court reversed the judgment of the trial court and remanded for further consideration. See Collias v. Redburn, et al., 3d Dist. No. 16-09-18, 2010-Ohio-2296 (hereinafter, ”Collias I“). We held that “[a]lthough the trial court could reasonably impose sanctions pursuant to Civil Rule 37 due to the untimeliness [of Collias’ discovery responses], a hearing should have been held on the matter before judgment
{¶8} Upon remand, a telephone pretrial was held on July 28, 2010, during which it was disclosed that Butcher had died. Butcher‘s attorney then filed a Notice of Suggestion of Death.3 (Feb. 10, 2011 Judgment Entry, p. 3) On October 26, 2010, pursuant to this Court‘s directive, the trial court held a hearing on the motions for discovery sanctions. (Id., p. 4) Although Collias responded to the requests for discovery one day prior to the hearing, the defendants claimed there were still deficiencies. (Id.) At this time, Collias was also reminded of the need to substitute the Estate of Butcher as a defendant, and his counsel indicated that he planned to do so “pretty quick.” (Id.) The discovery issues remained unresolved, and in a November 30, 2010 judgment entry, the trial court advised Collias that he had ten days in which to respond to the defendants’ allegations of insufficient responses to their respective discovery requests. (Id., p. 5)
{¶9} On December 22, 2010, the WCAS moved for summary judgment on the grounds that it was a political subdivision and entitled to immunity; that
{¶10} While the motion for summary judgment was pending, on January 18, 2011, Collias finally moved for an Order to substitute the Estate of John Butcher, deceased, for Defendant John Butcher. Butcher‘s counsel filed a motion opposing the order, stating that it was untimely pursuant to
{¶11} On February 10, 2011, the trial court filed its judgment entry, denying Collias’ motion to substitute the Estate of John Butcher, and ruling on the long-pending motions for the
{¶12} On September 6, 2011, the trial court issued two judgment entries relating to the February 10, 20114 and the April 15, 2011 judgment entries, noting that the judgments were final judgments as to fewer than all of the parties, but they failed to contain the Civil Rule 54(B) certification language. Accordingly, the trial court ordered the language be added to each of the two judgment entries, stating that “there is no just reason for delay and the dismissal is a final appealable order.”
{¶13} It is from these judgments that Collias now appeals, raising the following three assignments of error for our review.
First Assignment of Error
The trial court erred when it granted summary judgment in favor of Appellee, Wyandot County Agricultural Society, on the grounds of immunity.
Second Assignment of Error
The trial court erred when it granted Defendant/Appellant, John Butcher‘s motion to dismiss for failing to respond to discovery.
The trial court erred when it granted Appellee, John Butcher‘s, motion to dismiss for failing to substitute his Estate pursuant to
First Assignment of Error -- Summary Judgment in Favor of WCAS
{¶14} In the first assignment of error, Collias claims that the trial court erred when it granted summary judgment in favor of the WCAS on the basis of immunity. While Collias acknowledges that the WCAS qualifies as a political subdivision for purposes of establishing immunity under
{¶16} The Political Subdivision Tort Liability Act, as codified in
First,
R.C. 2744.02(A)(1) sets out a general rule that political subdivisions are not liable in damages. In setting out this rule,R.C. 2744.02(A)(1) classifies the functions of political subdivisions into governmental and proprietary functions and states that the general rule of immunity is not absolute, but is limited by the provisions ofR.C. 2744.02(B) , which details when a political subdivision is not immune. Thus, the relevant point of analysis (the second tier) then becomes whether any of the exceptions inR.C. 2744.02(B) apply. Furthermore, if any ofR.C. 2744.02(B) ‘s exceptions are found to apply, a consideration of the application ofR.C. 2744.03 becomes relevant, as the third tier of analysis.
Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556–557, 2000-Ohio-486; Monteith v. Delta Productions, Inc., 3d Dist. Nos. 3-07-35, 3-07-36, 2008-Ohio-1997, ¶ 15. Collias concedes that the WCAS was a political subdivision
{¶17} The issue is whether any of
{¶19} In addition, the decision to utilize the services of Butcher was an exercise of judgment and discretion and the WCAS is immune from liability in the absence of any evidence that the decision was exercised with the characteristics enumerated in
{¶20} Also, Collias’ complaint that the WCAS was negligent for failing to hire an inspector under
{¶21} Accordingly, we find that the trial court did not err in granting summary judgment in favor of WCAS on the basis of its immunity as a political subdivision. The first assignment of error is overruled.
Second Assignment of Error – Dismissal Pursuant to Civ.R. 37
{¶22} Collias’ second assignment of error submits that the trial court erred when it granted Butcher‘s motion to dismiss for failing to respond to discovery orders pursuant to
{¶24}
{¶25} A trial court has broad discretion when imposing discovery sanctions and a reviewing court shall review these rulings only for an abuse of discretion. Vaught v. Cleveland Clinic Found., 98 Ohio St.3d 485, 2003-Ohio-2181, ¶ 13.
The discovery rules give the trial court great latitude in crafting sanctions to fit discovery abuses. A reviewing court‘s responsibility is merely to review these rulings for an abuse of discretion. “‘The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations.’” State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 361, 473 N.E.2d 264, 313, quoting Spalding v. Spalding (1959), 355 Mich. 382, 384-385, 94 N.W.2d 810, 811-812. In order to have an abuse of that choice, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Id.
Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 1996-Ohio-159.
{¶26} This case has been pending for many years, during which time Collias has been served with numerous discovery requests and orders to comply
{¶27} Pursuant to our decision in Collias I, the trial court sent notice that a hearing on the Motion for Sanctions was to be held on September 1, 2010. Collias asked for and was granted a continuance and the hearing was rescheduled to October 26, 2010. The day before the hearing, Collias responded to Butcher‘s request for discovery that had originally been made in May of 2009. Because the defendants did not have sufficient time to review the materials to determine whether they were responsive, additional time was provided for such a review, and then Collias was further granted additional time to respond when it was discovered that the discovery was still not sufficiently responsive. He again failed to comply.
{¶28} In its judgment entry, the trial court discussed its findings as follows:
At the hearing on the Motion for Sanctions/Dismissal, [Collias] offered no evidence and only generalized statements that [Collias] was unable to obtain the material and was unwilling to explore different avenues to obtain the information and documents. The alleged incident upon which the Complaint was based occurred in 2005. Discovery from [Collias] has been sought since 2007. [Collias] continues to promise compliance but given the years that
have passed without full compliance, the Court may have little confidence that it will be forthcoming. * * * The court is aware that dismissal is a severe sanction, but it would appear appropriate in light of the continued disobedience of [Collias] of this Court‘s Orders concerning discovery, the lack of effort on the part of [Collias] to obtain the requested material and the continued delay tactics employed by [Collias]. In light of Defendant Butcher‘s death, delay has also certainly prejudiced this Defendant‘s case.
[Collias] had no reasonable explanation for his failure to respond to the Defendants’ discovery requests on the Court‘s Order to Compel. [Collias] had no legitimate reason why he waited until the day before the October hearing on sanctions to partially comply with the discovery requests and the Court‘s Order. * * * Further, [Collias‘] comments that additional information will be forwarded when received offers the specter of a discovery process with no end in sight.
(Feb. 10, 2011 J.E., pp. 8-10)
{¶29} Given the lengthy history of this case, it is evident that Collias has had ample opportunity to respond to the long-standing requests for discovery and that he has had sufficient notice of the possibility of dismissal if he continued to ignore the trial court‘s orders. We can discern no abuse of discretion in the trial court‘s dismissal of Collias’ case. The second assignment of error is overruled.
Third Assignment of Error – Substitution of Estate
{¶30} In the third and final assignment of error, Collias submits that the trial court erred when it granted Butcher‘s motion to dismiss for failing to substitute his estate pursuant to
{¶31} Having found no error prejudicial to the Appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and ROGERS, J.J., concur.
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