Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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.
Estate of Charlene Vargo Kuzda Aaron P. Berg Caravona &
Corkscrew Johnny's Inc. Robert Meeker, John C. Fickes
Blakemore Meeker & Bowler Co., L.P.A.
Jennifer M. Jilek D. John Travis Deborah W. Yue Gallagher
BEFORE: Blackmon, J., S. Gallagher, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, JUDGE
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
II. The trial court erred in denying DougOut's motion for
relief from judgment pursuant to Civ.R. 60(B).
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
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
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.
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,
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.
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.
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.
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
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.
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."
In opposition, DougOut advised the trial court that it had
fully complied ...