Being unable to concur with the opinion of the majority, I am forced to dissent.
In the trial court's order of December 6, 1983, appellant was warned that failure to report for examination would result in sanctions, including the sanction of dismissal, the order stating:
"Discovery has been delayed because of plaintiff's absence from the State. He is to present himself for an examination at a time in the next four weeks scheduled by defendant. Failure to report for examination will result in sanctions including the sanction of dismissal.
"The trial date of January 5, 1984 is vacated and this matter is reassigned for jury trial Wednesday, January 25, 1984 at 9:00 A.M."
Appellant complains that the trial court did not afford him an adequate hearing upon the record; yet, the trial court in its decision and judgment entry recites that a hearing was held on the motion to dismiss, and states:
"Hearing was held on the motion to dismiss.
"The Court finds plaintiff failed to comply with the Order of December 6, 1983 and failed to notify anyone of a reason for not appearing for the scheduled examination or to make alternate arrangement.
"Accordingly, the motion is SUSTAINED, the complaint is dismissed, judgment is entered for defendants and costs are taxed to plaintiff." (Emphasis added.) It is from this decision and subsequent judgment entry, filed January 20, 1984, that this appeal is taken.
Appellant alleges in his brief that he was present at the hearing and was ready, willing and able to testify regarding his inability to attend the deposition and physical examination, but that the trial court refused to accept any evidence on the matter and refused to allow a record to be made of its proceedings or its reasons for sustaining the motion. This argument is in direct contravention of the decision and judgment of the trial court and is unsupported by any transcript filed under App. R. 9(B), or in lieu thereof a statement of evidence or proceedings *Page 318 when no report was made or when the transcript is unavailable under App. R. 9(C). I fail to find any abuse of discretion on the part of the trial court, and, based upon the law as set forth by this court in Rauchenstein v. Kroger Co. (1981), 3 Ohio App. 3d 178, wherein we held that, where it has not been established that failure to comply with a discovery order was due to inability, such as illness rather than willfulness, bad faith or any other fault of the party failing to comply, the trial court does not abuse its discretion in ordering dismissal of the pending action pursuant to Civ. R. 37(B).
Civ. R. 37(B)(2) provides:
"If any party * * * fails to obey an order to provide or permit discovery * * * the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
"* * *
"(c) An order * * * dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; * * *"
For the foregoing reasons, appellant's single assignment of error should be overruled, and the judgment of the trial court should be affirmed.