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Estate of Kuzda v. PRF Enterprises, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 8, 2017

ESTATE OF CHARLENE VARGO KUZDA, PLAINTIFF-APPELLEE
v.
PRF ENTERPRISES, INC., ET AL., DEFENDANTS-APPELLEES Appeal By Dougout One Pub & Grill, L.L.C., Defendant-Appellant

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-800249.

          ATTORNEYS FOR APPELLANT George J. Argie Dominic J. Vitantonio Argie, D'Amico & Vitantonio

          ATTORNEYS FOR APPELLEES PRF Enterprises, L.L.C. Kenneth Calderone Emily Yoder Hanna, Campbell & Powell, L.L.P.

          For Estate of Charlene Vargo Kuzda Aaron P. Berg Caravona & Berg

          Corkscrew Johnny's Inc. Robert Meeker, John C. Fickes Blakemore Meeker & Bowler Co., L.P.A.

          For Jennifer M. Jilek D. John Travis Deborah W. Yue Gallagher Sharp

          BEFORE: Blackmon, J., S. Gallagher, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, JUDGE

         {¶1} Defendant DougOut One Pub & Grill, L.L.C., d.b.a. DougOut Pub & Grill ("DougOut") appeals from the orders of the trial court entering default judgment against DougOut in favor of PRF Enterprises, Inc. d.b.a. Musketeers Bar & Grille ("PRF"), and denying DougOut's motion for relief from that judgment. DougOut assigns the following errors for our review:

I. The trial court erred in failing to conduct a hearing on the motion for default judgment, inasmuch as appellant DougOut would have been able to demonstrate at a hearing: (1) that it had a meritorious defense to the liability claims that were being advanced by appellee [PRF] on its cross claim; (2) that all discovery that was relevant to the liability claims of [PRF] had been produced; and (3) that claims by [PRF's] counsel to the contrary were not accurate.
II. The trial court erred in denying DougOut's motion for relief from judgment pursuant to Civ.R. 60(B).

         {¶2} Having reviewed the record and pertinent law, we reverse the trial court's decision awarding PRF default judgment, and we remand for further proceedings consistent with this opinion.

         {¶3} This appeal arises out of an automobile accident caused by Jennifer Jilek ("Jilek") in 2011, when her vehicle struck and killed Charlene Vargo Kuzda ("Kuzda"). It was determined that Jilek was under the influence of alcohol.[1]

         {¶4} In 2013, Kuzda's estate sued DougOut, Jilek's employer PRF, and another bar, Corkscrew Johnny's, Inc. All the defendants were bars that sold alcohol. They were alleged to be liable for Jilek's alcohol consumption under the dram shop law.

         {¶5} On March 29, 2013, PRF requested discovery from DougOut; however, DougOut was not served with Kuzda's complaint until April 11, 2013. PRF renewed its discovery request. Because discovery was not responded to, the trial court granted PRF's motion to compel responses to the March 29, 2013 discovery.

         {¶6} In January 2014, PRF submitted a second set of discovery requests to DougOut, and filed a cross-claim against DougOut for indemnity, contribution, and spoliation of evidence. On March 17, 2014, PRF settled with Kuzda's estate for $500, 000, and the estate later dismissed its claims against PRF and Jilek with prejudice.

         {¶7} In August 2014, PRF filed a second motion to compel, again complaining that DougOut did not initially respond to the first discovery request, sent before DougOut was served with the complaint in this matter, and that following the trial court's earlier order compelling DougOut to respond, DougOut submitted responses that "were largely incomplete." PRF also complained that DougOut did not respond to another request for discovery sent in January 2014. On August 27, 2014, the trial court granted PRF's second motion to compel, ordering DougOut to provide complete responses within 14 days. Also on August 27, 2014, the trial court granted PRF a protective order barring the parties from learning the terms of its settlement with the estate.

         {¶8} On October 23, 2014, PRF filed a motion to show cause, complaining that although DougOut provided additional answers and documents, the responses "were largely incomplete" and that DougOut objected without explanation to most of the requested information.

         {¶9} The trial court scheduled a hearing on PRF's motion to show cause on December 3, 2014. DougOut's counsel appeared as required, and the court then continued the matter until January 22, 2015. On that date, the trial court granted PRF's motions to compel in an order that provided for monetary sanctions in the event of future noncompliance, and stated:

Defendant DougOut * * * is hereby ordered to [respond] on or by 02/02/2015. Any information withheld on the basis that it is privileged, proprietary or confidential must be appropriately identified in a contemporaneously-produced privilege log. Defendant DougOut One Pub & Grill's failure to comply with this order will result in sanctions as follows: $50.00 per day for the first 10 days following 02/02/2015; $100.00 per day for the 10 day period thereafter; $250.00 per day for the subsequent 10 day period; $500.00 per day for the following 10 days; and $1, 000.00 per day thereafter, until the production is complete.

         {¶10} In August 19, 2015, PRF filed a motion to impose $167, 000 in sanctions from DougOut. PRF complained that it learned of a new bank account during the deposition of DougOut's owner. PRF also complained that counsel for DougOut advised that, "[i]f you would like to look at the boxes of supporting documentation, please contact me to arrange for your review as they are voluminous and you will need to copy them at your client's expense."

         {¶11} In opposition, DougOut advised the trial court that it had fully complied ...


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