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Winkle v. Kroger Grocery Store

Court of Appeals of Ohio, Tenth District

November 7, 2017

Joyce Winkle et al., Plaintiffs-Appellants,
v.
Kroger Grocery Store, #519, Defendant-Appellee.

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 16CV-3013)

         On brief:

          Leo P. Ross, for appellants.

          Dickie, McCamey & Chilcote, P.C., and Mary Barley-McBride, for appellee.

         Argued:

          Percy Squire.

          Mary Barley-McBride.

          DECISION

          HORTON, J.

         {¶ 1} Plaintiffs-appellants, Joyce Winkle et al. ("appellants"), appeal from the January 6, 2017 judgment of the Franklin County Court of Common Pleas granting Kroger Grocery Store's ("appellee") motion to dismiss appellants' complaint for want of prosecution. For the reasons that follow, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} This action arises from an incident at appellee's store that occurred on January 4, 2013, wherein appellant Joyce Winkle alleges that she was "in the Soda isle, when she slipped and fell on a slippery floor." (Mar. 28, 2016 Compl. at ¶ 6.) The trial court in its order and entry granting appellee's motion to dismiss noted that this is a refiled case and that appellants failed to prosecute the initial case prior to voluntarily dismissing the same. (Jan. 6, 2017 Order and Entry at 1-2.) The trial court goes on to describe the procedural history:

Shortly after voluntarily dismissing the first cause of action Plaintiff refiled. Plaintiff again failed to produce discovery or to comply with a Court Order to produce discovery. Plaintiff again failed to provide the information needed to allow Defendant to determine whether an independent medical examination was needed. Plaintiff did not comply with the Case Scheduling Order. Plaintiff did not identify any lay or expert witnesses in accordance with the Court's Case Scheduling Order.

(Order and Entry at 2.)

On October 18, 2016, Defendant, The Kroger Co. filed a Motion to Compel discovery by the Plaintiff. Plaintiff did not respond to Defendant's Motion to Compel and on November 4, 2016, this Court ordered that the Plaintiff respond to the Defendant's discovery no later than November 18, 2016. The Court warned Plaintiff that "failure to comply (with the Order compelling discovery) may result in additional sanctions including ...

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