Kmotorka v. WylieKmotorka v. Wylie
Robert J. Bahret and Andrew J. Ayers, for appellee/cross-appellant Thomas J. Wylie, Sr.
Thomas L. Rosenberg and Klodiana B. Tedesco, for appellee General Casualty Company of Wisconsin.
* * * * *
OSOWIK, J.
{¶ 1} This is a consolidated appeal from two related judgments of the Wood County Court of Common Pleas. The first appellate case, WD-11-018, is an appeal from a judgment in which the jury found in favor of appellant, Jerry Kmotorka, on claims of
{¶ 2} On appeal, appellant/cross-appellee Kmotorka sets forth the following four assignments of error:
Assignment #1: The court erred in allowing trial by ambush, by allowing defendant Thomas Wylie, Sr. to testify about boxes of surprise documents which he had refused to produce in discovery, and which were not on his pre-trial exhibit list.
Assignment #2: The court gave an erroneous, confusing and prejudicial “Changed Condition” instruction to the jury on the nuisance claim * * *, over оbjections by Kmotorka.
Assignment #3: The court erred in the statutory interpretation of [the] Ohio Corrupt Practices Act,
R.C. §2923.34 , when denying attorney fees to plaintiff Jerry Kmotorka whom the jury found proved a violation ofR.C. § 2923.34 by a preponderance of the evidence.
Assignment #4: The court erred in denying Kmotorka‘s post-trial motion for additional relief under
R.C. § 2923.34(B)(2) on the grounds that it was “untimely filed, highly prejudicial to the Defendant, and against the interests of judicial economy.”
{¶ 3} Appellee/cross-appellant Wylie sets forth the following as his sole cross-assignment of error:
Assignment of Error No. 1: The trial court erred in requiring defendant to subsidize plaintiff‘s case expenses, not authorized by statute, case law or court rules.
{¶ 4} In 2002, Kmotorka purchased 11.96 acres of land on County Road B in Fulton County, Ohio, from his friend and then-neighbor, Thomas Wylie, Sr. (“Wylie“). At the time of the purchase, Kmotorka knew that his lot was part оf a larger parcel owned by Wylie, and that Wylie, the owner of an excavation and landscaping business, was engaged in digging a sand pit on the parcel adjoining Kmotorka‘s new lot. Shortly after the purchase was completed it became obvious to Kmotorka and other residents in the surrounding area that Wylie was expanding his business to include commercial trucking and stone hauling. The business continued to expand and the number of trucks increased until 2004. That year, neighbors in the area contacted the local zoning authorities in an attempt to prevent Wylie from having the zoning of the area changed from agricultural to commercial, which would have allowed further expansion of the trucking and hauling business. Kmotorka assisted in those efforts.
{¶ 5} Ultimately, the zoning change was denied. However, during the time that the zoning rеquest was pending, Kmotorka and other neighbors were subjected to loud noises, diesel fumes, and increased truck traffic on County Road B. Between 2001 and 2007, Kmotorka reported several incidents of apparent vandalism on his property, including holes drilled into the roof of his home, trash on his lawn, and an automobile and aerosol cans being set on fire outside his home. In addition, Kmotorka was injured in a fight with Wylie and several other individuals, which he reported to the police. In 2007, Wylie was ordered to move his trucking business away from County Road B. The business was then relocated to Perrysburg, Ohio, in Wood County.
{¶ 6} On December 9, 2008, Kmotorka filed a complaint in the Wood County Court of Common Pleas against Thomas Wylie, Sr. and his wife, Lisa Wylie, his son Thomas Wylie, Jr., and Wylie and Sons Landscaping, in which he set forth claims of private nuisance, trespass, vandalism, civil assault and battery, intentional infliction of emotional distress, civil conspiracy, and violations of both
{¶ 7} On August 21, 2009, Wylie filed a motion for summary judgment and memorandum in support as to each of the claims set forth in the complaint. Kmotorka
{¶ 8} On February 25, 2010, Wylie filed a motion to bifurcate the impending jury trial, in which he asked the trial court to submit the issues of liability and damages to the jury in separate court proceedings, which the trial court later granted. On March 2, 2010, the trial court journalized an order in which it denied Wylies’ summary judgment motion, after finding that genuine issues of material fact existed as to all of Kmotorka‘s claims against Wylie. However, in response to a separate motion for summary judgment, the trial court dismissed claims of trespass, civil assault, and battery brought against Lisa Wylie, and a private nuisance claim brought against Thomas Wylie, Jr. The trial court further found that genuine issues of fact existed as to Kmotorka‘s remaining claims against Lisa Wylie and Thomas Wylie, Jr. that precluded summary judgment.
{¶ 9} On March 12, 2010, with leave of court, Kmotоrka filed a supplemental complaint in which he claimed that Wylie engaged in spoliation of evidence by destroying a hog pen which previously had the words “Jerry‘s House” painted on the side. Kmotorka asked the trial court to award him in excess of $25,000 for the spoliation claim.
{¶ 10} The first portion of the bifurcated jury trial, on the issue of liability, was held over for several days, beginning on March 15, 2010. Testimony was presented on behalf of Kmotorka by Karri Nusbaum, Kathy Keeler, Elizabeth Athaide-Victor, Anita Snoderly, Brenda Ryan, Leo and Sue Lisk and Earl Rowland. Testimony was also presented by Swanton Township Trustees James Meyer and Phillip Willand; Fulton County Assistant Prosecutor Paul Kennedy; Dave Gillette; Township Zoning Inspector Walter Hallett III, Fulton County Sheriff‘s Deputies Rick Brock, Roy Miller, Matt Smithmyer, Jerry Simon and Brian Marvin, and Providence Township Firefighter Chad Boru. In addition, Kmotorka, Sally Wiley, Lynette Swantack, Matt Andrews, Beau Lavigne and Howard Black also testified. At the close of the plaintiff‘s case, the defense made a motion to dismiss, which the trial court denied. However, the trial court stated that it would take the claims of OCPA violations and intentional infliction of emotional distress under advisement. Testimony was presented on behalf of the defense by Michael Bayer, Jeffrey Gillen and Thomas Wylie, Sr.
{¶ 11} At the close of all the evidence, the defense renewed its motion for a directed verdict, which the trial court denied. Discussions were then held between the parties and the trial court as to the admission of evidence and proposed jury instructions, which will be reviewed as they relate to specific assignments of error and the cross-assignment of error. After dеliberation, the jury returned verdicts for all of the defendants as to the claims of private nuisance, vandalism and civil conspiracy, and awarded no damages on those claims. The jury also returned a verdict in favor of
{¶ 12} The second phase of the bifurcated trial, to determine whether Kmotorka was entitled to triple damages and/or attorney‘s fees on the non-RICO claims, was held on April 26, 2010. Testimony was presented by Thomas Wylie, Sr., and Kmotorka. After deliberations, the jury found that Kmotorka failed to establish any of his claims by clear and convincing evidence, and refused to award Kmotorka either attorney‘s fees or punitive damages.
{¶ 13} On May 26, 2010, Kmotorka filed a motion for reimbursement of his attorney‘s fees and costs incurred in pursuing the OCPA claims. In support, Kmotorka argued that such fees are to be paid pursuant to
{¶ 14} On June 30, 2010, the trial court journalized an order in which it found that Kmotorka was entitled to attorney‘s fees on the OCPA claim pursuant to
{¶ 15} On January 20, 2011, Kmotorka filed a motion for additional relief pursuant to
{¶ 16} On February 9, 2011, the trial court journalized an order in which it vacated the award of attorney fees to Kmotorka pursuant to
{¶ 17} On February 25, 2011, Kmotorka filed a motion рursuant to
{¶ 18} On March 11, 2011, Kmotorka filed a notice of appeal from the trial court‘s February 9 order. Wylie filed a memorandum in opposition to Kmotorka‘s
{¶ 19} On March 29, 2011, the trial court journalized a supplemental judgment entry in which it ordered Wylie to pay costs in the amount of $11,385.67, for the cost of “procuring transcripts of proceedings, subpoena fees, and witness fees.” The trial court denied Kmotorka‘s request for inclusion of the procurement of medical records as “costs.” Wylie filed a notice of appeal from the supplemental judgment on April 18, 2011, and the two cases were consolidated by this court, sua sponte, on April 27, 2012. On June 14, 2011, in response to a motion filed by Kmotorka, this court determined that the trial court‘s judgment was final and appealable and that we have jurisdiction to hear this appeal.
{¶ 20} In his first assignment of error, Kmotorka asserts that the trial court erred by allowing Wylie to testify concerning two boxes of purported commercial trucking invoices during the first trial. In support, Kmotorka argues that allowing the boxes of
{¶ 21} It is well-settled that the admission or exclusion of evidence is within the sound discretion of the trial court. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). An appellate court will not reverse the trial court‘s decision to admit or exclude evidence absent “a clear showing of an abuse of discretion with attendant material prejudice.” State v. Ruppen, 4th Dist. No. 11CA22, 2012-Ohio-4234, ¶ 11, quoting State v. Green, 184 Ohio App.3d 406, 412, 921 N.E.2d 276, ¶ 14 (4th Dist.). An abuse of discretion connotes more than a mere error of law or judgment, instead requiring a finding that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “When an appellate court applies this standard, it must not substitute its judgment for that of the trial court.” State v. Ruppen, supra, at ¶ 12, citing State v. Jeffers, 4th Dist. No. 08CA7, 2009-Ohio-1672, ¶ 12.
{¶ 22} Pursuant to Evid.R. 403(A) evidence, though relevant, “is not admissible if its probative value is substantially outweighed by the dangеr of unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(B) further states that relevant “evidence may [also] be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence.”
{¶ 23} In addition, reversal of the trial court‘s judgment is not warranted “unless the court‘s actions were inconsistent with substantial justice and affected the substantial rights of the parties.” Perry v. Univ. Hosps. of Cleveland, 8th Dist. No. 83034, 2004-Ohio-4098, ¶ 25. In determining whether or not substantial justice has been done, the appellate court must weigh the prejudicial effect, if any, of such errors and determine whether the trier of fact would have made the same decision if they had not occurred. Id. at ¶ 30; Cappara v. Schibley, 85 Ohio St.3d 403, 408, 709 N.E.2d 117 (1999).
{¶ 24} It is undisputed that, during discovery, Kmotorka requested documentation of Wyliе‘s agricultural, excavation and commercial hauling activities from 2001 through the date of the trial. Wylie‘s response was that such documents were irrelevant and immaterial to the issues in this case. The record does not show that Kmotorka filed a motion to compel discovery pursuant to
{¶ 25} At trial, testimony was presented through Kmotorka and his ex-wife, Karri Nusbaum, as well as several other residents on County Road B, and zoning inspector Hallett that Wylie had at least 43 commercial trucks on the County Road B property by
{¶ 26} On the last day of the first jury trial, in response to testimony presented by Kmotorka that Wylie was engaged in substantial amounts of commercial hauling activities, Wylie attempted to introduce two boxes of documents which he characterized as invoices from commercial hauling activities in 2001. Wylie testified that the invoices were for services performed before the area on County Road B was zoned to prohibit such activities, in an attempt to show that his commercial hauling business was “grandfathered in” before Kmotorka built his home next door. At that point, Kmotorka‘s attorney objected to the introduction of the two boxes on grounds that they were requested, but not produced, in discovery. Wylie‘s attorney responded by stating that
Judge, they were never asked for, first of all, and secondly we didn‘t know that they [Kmotorka] were going to make such a big issue out of whether or not there is commercial trucking going on prior to the zoning as opposed to [Wylie‘s] entire operation. They‘ve made it quite an issue in this case, the business of being, trucking being separate from the mining operation to where now we have to reply to it. We‘re rebutting what they‘re trying to establish.
{¶ 27} Kmotorka‘s attorney next argued that Wylie presented a much shorter written summary of his business activities at the criminal trial, which Wylie represented
{¶ 28} When the issue was revisited at the close of all the evidence, the court expressed concern as to the timing of Wylie‘s attempt to introduce the boxes into evidence. After hearing further arguments from both parties, the trial court reaffirmed its earlier decision to allow only Exhibit KK into evidence, and to exclude the two boxes containing the other alleged invoices.
{¶ 29} The trial court‘s decision to allow the jury to see the two boxes of documents purportedly relating to Wylie‘s commercial trucking business, even though Wylie clearly objected to the production of those same documents during discovery, is troubling. Also troubling is the fact that Wylie attempted to introduce the documents for the first time during cross-examination. However, the record shows that much of the evidence regarding Wyliе‘s business activities had already been introduced by Kmotorka, in an attempt to demonstrate that Wylie had a large commercial trucking business on County Road B. Also, as set forth above, Kmotorka made no attempt to compel Wylie to produce the documents in discovery, and the trial court did not admit them into evidence because they were not produced in response to Kmotorka‘s discovery request.
{¶ 30} On consideration of the foregoing we find that any implications raised by the presence of the two boxes were cumulative of facts already in evidence. Therefore, the prejudicial effect of their presence in the courtroom, if any, was not sufficient to convince this court that the jury would have reached a different conclusion in their absence. Appellаnt‘s first assignment of error is not well-taken.
{¶ 31} In his second assignment of error, Kmotorka asserts that the trial court erred by giving the jury an instruction as to the “changed conditions” of the neighborhood. In support, Kmotorka argues that the instruction was misleading because no evidence was presented that any conditions in the neighborhood changed except those that pertained to Wylie‘s business. Kmotorka further argues that the trial court compounded its error by not instructing the jury to consider “changed conditions” in the neighborhood as mere factors, and not as a complete defense to a nuisance action.
{¶ 32} It is well-established that an appellate court will not overturn a trial court‘s jury instruction on appeal absent a finding of abuse of discretion, when evaluated under the particular facts and circumstances of each case. Motorists Mut. Ins. Co. v. Hohman, 3d Dist. No. 17-06-08, 2007-Ohio-108, ¶ 26, citing State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989). An abuse of discretion connotes more than a mere error of law or judgment, instead requiring a finding that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140. In addition, “[w]hen applying the abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court.” Motorists Mut., supra, citing
{¶ 33} In this case, the trial court instructed the jury as follows:
Coming to the nuisance. Coming to the nuisance with regard to both absolute nuisance and qualified nuisance means that the plaintiff acquired land, moved onto it, or improved it after the conduct occurred that interfered with the plaintiff‘s use or enjoyment of the land. Coming to the nuisance is a factor that you should consider in deciding whether the plaintiff may recover on the nuisance claim. If the plaintiff knew of the situation, or in the exercise of ordinary care should have known the situation, and voluntarily placed himself in the area of the activity that he now claims to be a nuisance [sic]. A person who becomes a resident of a residential/agricultural neighborhood is bound to submit to the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of such neighborhood activity. If you find that the plaintiff came to the nuisance, you will consider this factor in determining whether the defendant‘s conduct was unreasonable.
Changed condition. A person who remains as a resident in a neighborhood which gradually becomеs an industrial/business neighborhood, is bound to submit to the ordinary annoyances, discomforts, and injuries which are
fairly incidental to the reasonable and general conduct of such business in the neighborhood.
{¶ 34} It is undisputed that the jury instructions given by the trial court are substantially the same as the standard Ohio Jury Instruction (“OJI“) CV 621, regarding nuisance. The official comment to CV 621 states that:
[a]ccording to the weight of authority, the fact that a person voluntarily comes to a nuisance by moving into the sphere of its injurious effect does not prevent the plaintiff from pursuing injunctive relief or damages, especially where, by reason of changes in the defendant‘s conduct, the annoyance has been increased. See, Harden Chevrolet Co. v. Pickaway Grain Co., 27 Ohio Op.2d 144, 92 Ohio Law Abs. 161 (1961), Eller v. Koehler, 68 Ohio St. 51, 67 N.E. 89 (1903); Restatement of Law 2d, Tort (1965), Section 840D.
{¶ 35} At trial, Kmotorka testified on direct examination that he knew about Wylie‘s sand mining activities on County Road B before he purchased the lot; however, he believed that Wylie would move the business after the lake was completed. Kmotorka further testified that there was a dramatic increase in truck traffic, noise and diesel smoke after he began working on his dream home. Kmotorka further testified that, after he moved to County Road B, he observed Wylie‘s trucks dumping concrete on Wylie‘s land next to Kmotorka‘s property. Later, on cross-examination, Kmotorka testified that Wylie violated an unwritten “gentleman‘s agreement” in which Wylie agreed to move his
Neighbor Sally Wiley testified that Kmotorka was aware that he was moving beside a landscaping and sand mining business when he built his dream home. She also testified that residents of County Road B wanted the area zoned because there were seven sand pits within five miles of her home and a total of 22 such operations in the township. On redirect, Sally Wiley testified that the trucking business ran seven days a week, producing constant noise, and diesel fumes.
{¶ 36} On consideration of the trial court‘s record and the law, this court finds that the trial court‘s instructions regarding nuisance, when regarded as a whole and in light of the evidence presented at trial, do not amount to prejudicial error in this instance. Appellant Kmotorka‘s second assignment of error is not well-taken.
{¶ 37} In his third assignment of error, Kmotorka asserts that the trial court erred by reconsidering and reversing its earlier decision to award him attorney‘s fees and expenses pursuant to
{¶ 38} Generally, a trial court‘s decision to grant or deny attorney fees is reviewed under an abuse of discretion standard. LaFarciola v. Elbert, 9th Dist. No. 08CA-009471, 2009-Ohio-4615, ¶ 9, citing Jarvis v. Stone, 9th Dist. No. 23904, 2008-Ohio-3313, ¶ 33. However, in this case, we first must analyze whether the trial court had statutory authority pursuant to
{¶ 39}
{¶ 40} In this case, the jury specifically found that Kmotorka did not prove a violation of
{¶ 41}
If the plaintiff in a civil action instituted pursuant to this section proves the violation by a preponderance of the evidence, the court, after making due provision for the rights of innocent persons, may grant relief by entering any appropriate orders to ensure that the violation will not continue or be repeated. The orders may include, but are not limited to, оrders that:
(1) Require the divestiture of the defendant‘s interest in any enterprise or in any real property;
(2) Impose reasonable restrictions upon the future activities or investments of any defendant in the action, including, but not limited to, restrictions that prohibit the defendant from engaging in the same type of endeavor as the enterprise in which the defendant was engaged in violation of section 2923.32 of the Revised Code;
(3) Order the dissolution or reorganization of any enterprise;
(4) Order the suspension or revocation of a license, permit, or prior approval granted to any enterprise by any department or agency of the state;
(5) Order the dissolution of a corporation organized under the laws of this state, or the revocation of the authorization of a foreign corporation tо conduct business within this state, upon a finding that the board of directors or an agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of section 2923.32 of the Revised Code, and that, for the prevention of future criminal conduct, the public interest requires the corporation to be dissolved or its license revoked.
{¶ 42} Kmotorka asserts on appeal that
{¶ 43} Generally, when construing a statute, “a court‘s paramount concern is the legislative intent.” State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 584, 651 N.E.2d 995 (1995), citing State ex rel. Solomon v. Police & Firemen‘s Disability & Pension Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995). “In
{¶ 44} In this case, as set forth above, although
{¶ 45} On consideration of the foregoing, we find that, although
{¶ 46} In his fourth assignment of error, Kmotorka asserts that the trial court erred by denying his motion for additional relief under
{¶ 47}
{¶ 48} Kmotorka correctly asserts that
{¶ 49} Upon consideration, we find that the trial court‘s denial of Kmotorka‘s request to file a brief in support of his motion for injunctive relief, and the resulting denial of such relief, was not arbitrary, unconscionable, or unreasonable. Accordingly, the trial court did not abuse its discretion, and Kmotorka‘s fourth assignment of error is not well-taken.
{¶ 50} Having disposed of all of Kmotorka‘s assignments of error, we now turn to Wylie‘s sole cross-assignment of error, in which he asserts that the trial court erred by awarding Kmotorka $11,545.33 as “costs” in this action. In support of his cross-assignment of error, Wylie argues that there is no legal authority to support the trial court‘s decision to tax “all of [Kmotorka‘s] deposition expenses as costs.” Kmotorka counters by asserting that, pursuant to
{¶ 51} This court has held that, “[g]enerally, whether or not the trial court makes an award of allowable expenses is a discretionary matter, reviewable in the court of appeals under an abuse of discretion standard.” Jackson v. Sunforest Ob-Gyn Assoc. Inc., 6th Dist. No. L-08-1133, 2008-Ohio-6170, ¶ 7, citing Atkinson v. Toledo Area Reg‘l Transit Auth., 6th Dist. No. L-05-1106, 2006-Ohio-1638, ¶ 9. However, before reviewing the amount of costs ordered in this case, we must first consider whether, as a matter of law, deposition expenses can be awarded as “costs.” Id.
{¶ 52}
[w]hen it is necessary in an appeal, or other civil action to procure a transcript of a judgment or proceeding, or exemplification of a record, as evidence in such action or for any other purpose, the expense of procuring such transcript or exemplification shall be taxed in the bill of costs and recovered as in other cases.
{¶ 53} In Boomershine v. Lifetime Capital, Inc., 182 Ohio App.3d 495, 913 N.E.2d 520, 2009-Ohio-2736 (2d Dist.), the Second District Court of Appeals, citing Keaton v. Pike Comm. Hosp., 125 Ohio App.3d 153, 705 N.E.2d 734 (4th Dist.1997), held that deposition expenses may be recovered if they are used to support or oppose a motion for summary judgment, where no trial was held. Id. at ¶ 13. In that case, the appellate court reasoned that, since
{¶ 54} A review of the record shows that, on summary judgment, Wylie opposed each and every allegation of the complaint that was brought by Kmotorka. Those claims included private nuisance, assault, battery, intentional infliction of emotional distress, OCPA violations, civil conspiracy, trespass and vandalism. The facts stated in Wylie‘s memorandum were supported by his own affidavit and Kmotorka‘s deposition. Kmotorka‘s memorandum in opposition is supported by numerous depositions. None of the depositions used to oppose summary judgment were offered at trial; however, many of the deposed individuals testified at trial.
{¶ 55} On consideration this court finds that, as a matter of law, Kmotorka‘s deposition expenses could be taxed as “costs” in this action, even though they were not used at trial. As to whether the trial court abused its discretion by fixing the amount of those costs at $11,545.33, the record shows that, in his motion to tax costs, Kmotorka submitted total expenses of $13,073.89. Those expenses included the cost of transcribing more than 20 depositions аnd a partial transcription of Wylie‘s criminal trial, subpoena and witness fees for the witnesses presented by Kmotorka at trial, and the costs of
{¶ 56} As set forth above, the trial court‘s award of allowable expenses to be taxed as costs will not be overturned on appeal absent a finding of abuse of discretion. Jackson, 6th Dist. No. L-08-1133, 2008-Ohio-6170, at ¶ 9. An abuse of discretion requires a finding that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140.
{¶ 57} On further consideration, we find that the trial court considered each of the expenses submitted by Kmotorka to be charged as costs, as evidenced by the exclusion of medical expenses from Kmotorka‘s request. Accordingly, we cannot say that the trial court‘s award was arbitrary, unreasonable or unconscionable. Wylie‘s cross-assignment of error is not well-taken.
{¶ 58} The judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
C.A. Nos. WD-11-018
WD-11-026
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, P.J. _______________________________
Thomas J. Osowik, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newрdf/?source=6.
Notes
If a deponent fails to answer a question propounded or submitted under Rule 30 or Rule 31, or a party fails to answer an interrogatory submitted under Rule 33, * * * the discovering party may move for an order compelling an answer or an order compelling inspection in accordance with the request. * * *