Maintenance Unlimited, Inc. v. Salemi

Although I concur with the majority in the reversal and remand as to the issues of the required hearing for damages and the denial of prejudgment interest, I must respectfully dissent from the position reached by the majority concerning the entering of a default judgment as a sanction for failure to obey a discovery order. It is my considered opinion, as will be discussed more fully below, that the default judgment was the proper sanction based upon the actions of the appellant which were in blatant disregard of the court's orders and instructions.

The majority relies on Toney v. Berkemer (1983), 6 Ohio St.3d 455, stating that the facts were similar to those in the present case and illustrated that a default judgment used as a sanction in the present case was too severe. I respectfully disagree. InToney, the appellant gave valid health reasons for the delays pertaining to the interrogatories and document requests. Moreover, the appellant also demonstrated his willingness to aid the court and supply any additional information requested. It is clear from the appellant's actions that there was a good faith attempt on his part to supply the requested materials.

In contrast, the appellant in the present case has failed to demonstrate any attempt at good faith compliance with the court orders. His actions show a blatant disregard for the instructions and orders of the court. On May 17, 1982, appellee Maintenance Unlimited requested production of documents. On September 10, 1982, nearly three months after the request, appellee filed a motion for production based on the appellant's failure to produce the requested documents. The record indicates that on October 18, 1982, appellant finally relinquished only a small amount of the requested materials.

Further instances of bad faith on the part of the appellant can be seen in his actions regarding his deposition. On October 12, 1982, a notice of deposition was filed to be held October 20, 1982. That deposition was postponed until November 5, 1982, pursuant to several requests by the appellant. On November 5, 1982, the deposition could not be completed because the appellant failed to produce documents. The deposition was continued until November 19th, but was again rescheduled for December 3, 1982 at still another request by the appellant. On December 3, 1982, the appellant failed to appear. It is apparent that both the court and the appellee, Maintenance Unlimited, granted numerous continuances solely for the convenience of the appellant, and the appellant abused their generosity.

On December 14, 1982, appellee filed a motion for sanctions which was heard on December 22, 1982. As a result, appellant was ordered to produce all documents by December 29, 1982. Appellant failed to comply with the court order. After this final disobedience by the appellant, the appellee filed additional sanction motions and was granted default judgment.

It is clear from the record that the appellant exhibited a total disregard for the instructions of the court. Civ. R. 37(B) provides the trial court with broad discretion to impose sanctions. When dealing the harshest sanction of default, the record must indicate that the failure to comply has been due to willfulness, bad faith, or any fault of the noncomplying party.Societe Internationale v. Rogers (1958), 357 U.S. 197. Furthermore, the burden to explain a failure to comply with discovery is on the defaulting party and the failure presumes bad faith or fault. Ward v. Hester (1972), 32 Ohio App.2d 121 [61 O.O.2d 124], affirmed (1973), 36 Ohio St.2d 38 [65 O.O.2d 181], certiorari denied (1974), 415 U.S. 984.

The record before the court illustrates a consistent disregard by the appellant of the Rules of Civil Procedure. Never once did the appellant, in response to appellee's motion for discovery, file a motion to clarify, make certain or more specific. The trial court had shown great patience and leniency with the appellant by giving him numerous opportunities to rectify him lack of compliance. The appellant failed to use those opportunities. The court granted the sanctions only after appellant abused the privileges shown to him by the court. Accordingly, I find that there was no abuse of discretion by the trial court and the sanction of default cannot be disturbed, and I dissent from the position assumed by the majority.