Entingh v. Old Man's Cave Chalets, Inc, 08ca14 (5-11-2009)Entingh v. Old Man's Cave Chalets, Inc, 08ca14 (5-11-2009)
{¶ 1} Gerald and Patricia Entingh (hereinafter “the Entinghs“), husband and wife, appeal the judgment of the Hocking County Court of Common Pleas. The trial court dismissed the Entinghs’ complaint with prejudice because the Entinghs had failed to comply with a court order compelling discovery. The Entinghs contend that the trial court should not have granted Old Man‘s Cave Chalets, Inc.‘s (hereinafter “Old Man‘s Cave Chalets“) motion to compel without giving the Entinghs an opportunity to respond. However, we find that any error the court may have committed in granting the motion to compel was harmless. The Entinghs also contend that they did not have a reasonable opportunity to respond to the motion to dismiss, and that their failure to comply with the court order was not the result of willfulness or bad faith. We agree that the trial court
I.
{¶ 2} The Entinghs celebrated their wedding anniversary at Old Man‘s Cave Chalets from February 24-26, 2006. Sometime after using the hot tubs at Old Man‘s Cave Chalets, the Entinghs developed infections in their groin regions. Dr. Cameron Woodlief (hereinafter “Dr. Woodlief“), the primary care physician for the Entinghs, diagnosed Patricia Entingh with Community-Acquired Methicillin Resistant Staphylococcus aureus (hereinafter “CA-MRSA“). It is not entirely clear from the record whether Gerald Entingh was also diagnosed with CA-MRSA. In their complaint, the Entinghs alleged that the hot tubs at Old Man‘s Cave Chalets had caused their infections.
{¶ 3} On August 8, 2008, Old Man‘s Cave Chalets filed a motion to compel discovery. Attached to the motion were several letters that Old Man‘s Cave Chalets’ attorney had sent to the Entinghs’ attorney. The letters, dated June 17, July 3, July 16, July 22, and July 31, 2008, document Old Man‘s Cave Chalets’ attempts to obtain discovery from the Entinghs.
{¶ 4} The first three letters express Old Man‘s Cave Chalets’ desire to depose the Entinghs and Dr. Woodlief. The July 22 letter reiterates that desire;
{¶ 5} The July 31 letter threatened that Old Man‘s Cave Chalets would file a motion to compel if the Entinghs continued to ignore Old Man‘s Cave Chalets’ discovery requests. That letter states “[o]n June 17th I wrote you asking for the depositions of your clients and Dr. Woodlief. Thus a month and a half have elapsed, depriving me of necessary discovery. I will leave it to you to provide me available dates for these depositions no later than August 6th, 2008 to avoid a motion to compel. The dates the depositions are actually to be conducted can be later than the 6th; its [sic] just the scheduling that needs to occur before that date.” July 31 Letter from Beau K. Rymers to J. Douglas Stewart. Receiving no answer, Old Man‘s Cave Chalets filed its motion to compel on August 8, 2008. The trial court entered an Entry and Order compelling discovery (hereinafter the “August 8 Order To Compel“) on that same day.
{¶ 6} In the August 8 Order To Compel, the trial court ordered the Entinghs to “submit to depositions by Defendant‘s counsel no later than the 20th day of August, 2008[.]” The trial court also ordered the Entinghs to “submit for deposition by Defendant any and all of their expert medical testifying witnesses, including but not limited to Dr. Cameron Woodlief, no later than the 30th day of August, 2008[.]” Id. (emphasis added). Additionally, the August 8 Order to Compel warns the Entinghs that failure to “comply completely with this Order may include sanctions including dismissal of Plaintiffs’ claim with prejudice.” Id.
{¶ 7} The Entinghs complied with much of the August 8 Order To Compel. Old Man‘s Cave Chalets did indeed depose the Entinghs on August 19. And the parties had scheduled Dr. Woodlief‘s deposition for either August 19 or August 29. But the Entinghs made no other expert medical witnesses available for deposition. This became an issue when Old Man‘s Cave Chalets learned that Dr. Timothy Anderson (hereinafter “Dr. Anderson“) had been treating Patricia Entingh for CA-MRSA. Old Man‘s Cave Chalets first became aware of Dr. Anderson during Patricia Entingh‘s deposition.
{¶ 8} Claiming that they had just learned of Dr. Anderson‘s existence as a potential testifying witness, the Entinghs filed their motion to vacate part of the August 8 Order To Compel on August 20, 2008. The Entinghs claimed that Dr. Anderson had not returned their phone calls and, therefore, was unlikely to be deposed before the August 30 deadline. Old Man‘s Cave Chalets filed a memorandum contra to the Entinghs motion on August 25, 2008. From this, the trial court learned that the Entinghs had proposed an October 8, 2008 date for
{¶ 9} The Entinghs appeal, asserting the following assignments of error: I. “THE TRIAL COURT ABUSED ITS DISCRETION BY ENTERING AN ORDER DISMISSING THE PLAINTIFFS’ COMPLAINT WITH PREJUDICE PRIOR TO THE EXPIRATION OF FOURTEEN (14) DAYS AFTER THE FILING OF DEFENDANT‘S MOTION ON SEPTEMBER 3, 2008, FOR FAILURE TO COMPLY WITH THE PRIOR ORDER DATED AUGUST 08, 2008, THAT COMPELLED DISCOVERY BY AUGUST 30, 2008 OF APPELLANTS AND ALL EXPERT MEDICAL TESTIFYING WITNESSES.” II. “THE TRIAL COURT ABUSED ITS DISCRETION BY ENTERING AN ORDER COMPELLING DISCOVERY ON AUGUST 08, 2008 PURSUANT TO MOTION FILED ON AUGUST 07, 2008 PRIOR TO THE EXPIRATION OF FOURTEEN (14) DAYS FOR FAILURE TO PROVIDE DEPOSITION TESTIMONY OF THE PLAINTIFFS, DR. WOODLIEF AND ALL EXPERT MEDICAL TESTIFYING WITNESSES.”
II.
A.
{¶ 10} Before we address the Entinghs’ assignments of error, we find it important to discuss the record before this Court. The record in this case is quite thin and contains a modicum of evidence relevant to the issues on appeal. In a joint Stipulation and Submission of Evidentiary Materials, the Entinghs and Old Man‘s Cave Chalets attempted to supplement the record with transcripts of the depositions of Gerald Entingh, Patricia Entingh, and Dr. Woodlief. Along with the transcripts, the parties included copies of exhibits from those depositions. (Mistakenly, the parties also submitted a “Notice Of Service Of Discovery Pleading” that was already in the record.) The parties made these submissions pursuant to
{¶ 11} It is also a longstanding rule “that the record cannot be enlarged by factual assertions in the brief.” Dissolution of Doty v. Doty (Feb. 28, 1980), Pickaway App. No. 411, citing Scioto Bank v Columbus Union Stock Yards (1963), 120 Ohio App. 55, 59. Therefore, we have disregarded facts in either party‘s brief that are outside of the record.
B.
{¶ 12} We will first address, out of order, the Entinghs’ second assignment of error. The Entinghs contend that the trial court abused its discretion by entering the August 8 Order To Compel.
{¶ 13} “[T]he standard of review of a trial court‘s decision in a discovery matter is whether the court abused its discretion.” St. Joseph‘s Hosp. v. Hoyt, Washington App. No. 04CA20, 2005-Ohio-480, at ¶ 31, citing Mauzy v. Kelly Serv., Inc. (1996), 75 Ohio St.3d 578, 592. Therefore, our standard of review is whether the trial court abused its discretion in granting the motion to compel. State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469 (stating that trial court did not abuse its discretion by overruling a motion to compel); St. Joseph‘s Hosp. at ¶ 31; see, also, DeMeo v. Provident Bank, Cuyahoga App. No. 89442, 2008-Ohio-2936, at ¶ 71; Folmar v. Griffin (2006), 166 Ohio App.3d 154, 157. An abuse of discretion “implies that the court acted in an unreasonable,
{¶ 14} Old Man‘s Cave Chalets filed its motion to compel pursuant to
{¶ 15} Here, we find that the there was sufficient evidence to show that the Entinghs had repeatedly failed to respond to Old Man‘s Cave Chalets’ discovery requests. The July 31 letter gave the Entinghs “reasonable notice” that Old Man‘s Cave Chalets would file the motion to compel if the Entinghs did not respond by August 6. And finally, Old Man‘s Cave Chalets provided evidence that it had made reasonable efforts to resolve the matter before filing the motion to compel.
C.
{¶ 16} However, the Entinghs contend that the trial court should not have granted the motion to compel without first affording the Entinghs an opportunity to present their side of the issue. A survey of Ohio decisions finds that courts have disagreed on this question.
{¶ 17} The facts in this case are quite similar to Mobley v. Palmer (Jan. 25, 2001), Monroe App. No. 833. In Mobley, one of the parties filed a motion to compel discovery after the opposing party failed to comply with multiple discovery requests. The trial court granted that motion two days later without hearing from the non-moving party. One of the issues on appeal was whether the trial court should have granted the motion to compel without giving the non-moving party adequate notice of a hearing on the motion.1 The Court of Appeals for Monroe County stated that ”
{¶ 18} Under different circumstances, other Ohio courts have reached similar conclusions. See, e.g., Keen Well Pump, Inc. v. Hill, Licking App. No. 2007CA0134, 2008-Ohio-3315, at ¶ 44-48 (trial court did not abuse its discretion by granting motion to compel after six days and without hearing from the other side); Flatt v. Atwood Nursing Center, Crawford App. No. 30626, 2007-Ohio-5387, at ¶ 11-19 (trial court did not abuse its discretion by granting motion to compel after four days and without hearing from the other side).
{¶ 19} However, several Ohio cases state that, in granting a motion to compel, a trial court abuses its discretion by not following the applicable procedural rules. The trial court granted a motion to compel discovery three days after it was filed in Cuervo v. Snell (Sep. 26, 2000), Franklin App. Nos. 99AP-1442, 99AP-1443, 99AP-1458. The Franklin County Court of Appeals overruled the trial court and stated the “trial court‘s decision was filed eleven days before the time Loc. R. 21.01 allowed appellants to respond to appellees’ motion. The trial court‘s decision was also filed twenty-five days before the time Loc R. 21.01 [sic] states that the motion `shall be deemed submitted to the Trial Judge.\‘” Id. As a result, the court found “that the trial court committed reversible error by not allowing appellants an opportunity to respond to appellees’ motion before rendering its decision.” Id. See, also, Cooper v. Drukker, Clark App. No. 07CA13, 2007-Ohio-3702, at ¶ 14-17 (trial court abused its discretion by not following local rules and granting motion to compel without affording non-moving party the chance to respond); White v. Aztec Catalyst Co. (Nov. 1 2000), Lorain App. No. 00CA007589 (trial court abused its discretion by granting motion to compel after one day and without hearing from the other side); Gibson-Myers Assocs. v. Pearce (Oct. 27, 1999), Summit App. No. 19358 (trial court abused its discretion by granting motion to compel after four days and without hearing from the other side).
{¶ 20} The Supreme Court of Ohio has suggested that a non-moving party should be given adequate time to respond to a motion to compel. Hillabrand v. Drypers Corp. (2000), 87 Ohio St.3d 517, 520, fn. 1. In Hillabrand, the court held
{¶ 21} Under the Local Rules in Hocking County, a “party opposing [a] motion shall serve and file within seven (7) days thereafter a brief written statement of the reasons in opposition to the motion[.]” Hocking County Loc. R. 8(C). In the present case, the trial court granted Old Man‘s Cave Chalets’ motion to compel on the same day it was filed. Here, it is not necessary to resolve whether a trial court abuses its discretion by granting a motion to compel in such a manner. Because while we tend to agree that a court should indeed follow its own local rules, we find that any procedural error committed by the trial court in granting the motion was harmless.
{¶ 22} We will not reverse a judgment on the basis of harmless error.
D.
{¶ 23} Accordingly, for the above-stated reasons, we overrule the Entinghs’ second assignment of error.
III.
{¶ 24} We will address Entinghs’ first and third assignments of error together. The Entinghs contend that the trial court erred by dismissing the Entinghs’ complaint with prejudice and upon the merits. The Entinghs contend
{¶ 25} Because of the drastic nature of such a decision, we review a trial court‘s dismissal of a complaint with prejudice under a heightened abuse of discretion standard. Jones v. Hartranft (1997), 78 Ohio St.3d 368, 372; Whitt v. Zugg, Highland App. No. 03CA8, 2004-Ohio-788, at ¶ 14; Kline v. Morgan (Jan. 3, 2001), Scioto App. Nos. 00CA2702 and 2712. This means we closely scrutinize a court‘s decision to dismiss in order to insure that it was not the result of an unreasonable, arbitrary or unconscionable attitude on the part of the court. Whitt at ¶ 14, citing Jones at 371. “In essence, our review focuses upon whether: 1) the trial court applied the appropriate analysis and factors in reaching its decision, and 2) the merits of that decision are based on reason and logic.” Id.
{¶ 26} It is not entirely clear whether the trial court dismissed the Entinghs’ complaint pursuant to
{¶ 27}
{¶ 28} Here, we find that the trial court did not provide the Entinghs a reasonable opportunity to respond to Old Man‘s Cave Chalets’ motion to dismiss. Old Man‘s Cave Chalets filed its motion to dismiss on September 3, 2008, and the trial court dismissed the case upon the merits just one day later. The Ohio Supreme Court has stated that a “`reasonable opportunity to defend against dismissal\’ under Quonset contemplates that a trial court allow the party opposing dismissal the opportunity to respond at least within the time frame allowed by the procedural rules of the court.” Hillabrand at 519-520.
{¶ 29} Although not in a
{¶ 30} Here, the Hocking County Local Rules allow the party opposing a motion seven (7) days to respond.4 The trial court granted Old Man‘s Cave Chalets’ motion to dismiss the day after it was filed. Therefore, the trial court did not allow the Entinghs a “reasonable opportunity to defend against dismissal” as required by Hillabrand and
{¶ 31} Old Man‘s Cave Chalets contends that, because of the August 8 Order To Compel, the Entinghs had notice that dismissal was possible. Further, Old Man‘s Cave Chalets contends that the Entinghs had a reasonable opportunity to defend against the possibility of dismissal by complying with the August 8 Order To Compel. We disagree.
{¶ 32} Because of the many similarities between the present case and Hillabrand, we cannot distinguish the present case from Hillabrand. In Hillabrand, the trial court granted the defendant‘s motion to compel and stated that “[f]ailure to comply with this order will result in sanctions, which may include dismissal of the complaint.” Hillabrand at 517. The trial court gave the plaintiff fourteen (14) days to comply with the order (February 18 to March 3). Id. When the plaintiff failed to comply, the defendant filed a motion to dismiss. Id. Two days later, the trial court dismissed the case with prejudice. Id. In the present case, we note the following similarities to Hillabrand: (1) the similar warnings to the plaintiffs; (2) the similar time periods for complying with the court orders; and (3) the similar quick dismissals by the trial courts. The Supreme Court of Ohio found that the plaintiff in Hillabrand did not have a reasonable opportunity to defend against dismissal. And because of the similarities, we believe that the Entinghs did not have a reasonable opportunity to defend against Old Man‘s Cave Chalets’ motion to dismiss. Accord Kassouf v. Pantona, Cuyahoga App. Nos. 81012, 80597, 2003-Ohio-553, at ¶ 24-29 (distinguishing Hillabrand because
{¶ 33} Accordingly, we sustain the Entinghs’ first and third assignments of error. However, we take no position on whether the Entinghs’ failure to comply with the August 8 Order To Compel was due to “inability” as opposed to “willfulness, bad faith, or fault.” That is an issue for the trial court to decide on remand.
IV.
{¶ 34} In conclusion, we find that any error the trial court may have committed in granting the motion to compel discovery was harmless. Therefore, we overrule the Entinghs’ second assignment of error. However, we find that the trial court did not afford the Entinghs a reasonable opportunity to defend against the possibility of dismissal. Therefore, we sustain the Entinghs’ first and third assignments of error. We reverse the judgment of the trial court and remand this cause to the trial court for further proceedings consistent with this opinion. Finally, we offer no opinion on whether good cause exists to dismiss the Entinghs’ claim based on their failure to comply with the August 8 Order To Compel.
JUDGMENT REVERSED AND CAUSE REMANDED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and this cause BE REMANDED to the trial court for further proceedings consistent with this opinion. Appellants and appellee shall equally pay the 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 Hocking County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J.: Concurs in Judgment and Opinion. McFarland, J.: Concurs in Judgment Only.