Pietrangelo v. Avon Lake

[Cite as Pietrangelo v. Avon Lake, 2018-Ohio-1006.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )

JAMES PIETRANGELO, II C.A. No. 17CA011080

Appellant

v. APPEAL FROM JUDGMENT
ENTERED IN THE
CITY OF AVON LAKE, OHIO COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 13CV181561

DECISION AND JOURNAL ENTRY

Dated: March 19, 2018

CARR, Judge.

{¶1} Plaintiff-Appellant James E. Pietrangelo, II appeals from the judgment of the

Lorain County Court of Common Pleas. This Court affirms in part and vacates in part.

I.

{¶2} This Court previously detailed the history of this case in the most recent prior

appeal (which will be subsequently referred to as “the prior appeal” for simplicity):

In September 2013, [] Pietrangelo, appearing pro se, filed a complaint against
Defendant-Appellee the City of Avon Lake, Ohio (“Avon Lake”) asserting that
the skate park owned and operated by Avon Lake as part of Weiss Field created a
nuisance. The skate park is located in the vicinity of where [] []Pietrangelo lives.
The skate park has been open since 2004, and [] Pietrangelo began living near the
park in 2011. [] Pietrangelo asserted, inter alia, that the skate park was
excessively noisy, posed a danger to children, and that the individuals using the
skate park vandalized it, used excessive profanity, visited the park after hours, and
littered in the park. He alleged causes of action for common law private nuisance
and common law public nuisance. [] Pietrangelo sought a temporary restraining
order and/or preliminary injunction requiring Avon Lake to temporarily close the
skate park, a permanent injunction requiring Avon Lake to permanently close the
skate park, and attorney fees and costs.
 2

Thereafter, [] Pietrangelo filed a motion for a temporary restraining order and/or
preliminary injunction. Prior to the trial court ruling on the motion, [] Pietrangelo
attempted to appeal, but this Court dismissed the attempted appeal noting there
had not been a ruling from which to appeal. See Pietrangelo v. Avon Lake, 9th
Dist. Lorain No. 14CA010584 (June 26, 2014). [] Pietrangelo’s motion was
subsequently denied following significant briefing and hearings. [] Pietrangelo
appealed the trial court’s ruling and this Court dismissed the appeal concluding
that the order was not final and appealable. See Pietrangelo v. Avon Lake, 9th
Dist. Lorain No. 14CA010644 (Oct. 23, 2014).

After [] Pietrangelo filed two motions seeking to have the trial judge disqualified,
the trial judge voluntarily recused himself and a visiting judge was assigned to the
matter. Following the reassignment, [] Pietrangelo sought reconsideration and/or
renewal of various motions he had filed in the past that were denied. The motions
were ultimately denied.

Thereafter discovery issues began to arise. In June 2015, the trial court issued an
order requiring Avon Lake to forward to the trial court a copy of the medical
authorization form it wanted [] Pietrangelo to complete, detailing the
authorization’s “scope, cost assessment, and authority for same on or before June
24, 2015.” The trial court indicated that “[t]he response [wa]s due on or before
July 2, 2015.” On June 15, 2015, Avon Lake filed a response to [] Pietrangelo’s
request for an extension of time to reply to certain discovery requests. Attached
to that response was a copy of the medical authorization form. However, that
response did not discuss the points mentioned in the trial court’s order. On June
26, 2015, Avon Lake filed its “statement on proposed medical authorization for
[Pietrangelo’s] medical records[.]” Less than three hours later, the trial court
issued an order finding the medical authorization to be “reasonable” as it
contained “multiple safeguards and protect[ed] Pietrangelo].” The trial court
ordered [] Pietrangelo “to execute the authorization and respond to discovery
requests.” The trial court required the authorization to be completed by July 8,
2015, and indicated that failure to do so would result in sanctions. On June 30,
2015, [] Pietrangelo responded in opposition.

Thereafter, [] Pietrangelo filed a notice of appeal from the trial court’s June 26,
2015 order requiring him to execute the medical authorization form. []
Pietrangelo filed a motion to stay the ruling; however, it does not appear that the
trial court ruled on that motion. While [] Pietrangelo filed a document indicating
that he served Avon Lake with all of his medical records that he deemed relevant,
nothing in the record suggests that [] Pietrangelo ever executed the medical
authorization form or that the trial court’s order requiring [] Pietrangelo to execute
the authorization was ever vacated.

Discovery disputes continued nonetheless. On July 22, 2015, [] Pietrangelo filed
a motion for a protective order and a motion to quash on behalf of himself and his
brother to prevent their depositions. [] Pietrangelo maintained that the relief was
necessary due to Avon Lake’s counsels’ history of “animosity and acting out[.]”
 3

The trial court summarily denied the motion. On July 23, 2015, the trial court
issued an order stating a pretrial hearing was held and that [] Pietrangelo failed to
appear, and that, when he was contacted, he indicated that he would not appear.
The trial court indicated that a member of the court staff was instructed to contact
[] Pietrangelo and inform him that the deposition of his brother would proceed on
July 23, 2015, as scheduled, and [] Pietrangelo’s deposition would take place on
July 27, 2015, as scheduled. Those depositions were ultimately rescheduled.

On July 29, 2015, Avon Lake filed a motion to compel the production of video,
audio, and photographs of the skate park created by [] Pietrangelo. That motion
was granted the next day. In that order, the trial court indicated that “[n]on-
compliance [would] result in sanctions including but not limited to an award of
attorney fees and costs and or dismissal of this lawsuit.” Nonetheless, the parties
entered into a stipulated protection order concerning confidential information,
which appears to be related in part to the recordings.

On September 3, 2015, Avon Lake filed a motion to compel the deposition
testimony of [] Pietrangelo and his brother. Avon Lake asserted that both
deponents “refused to answer legitimate questions seeking relevant information
regarding the claims and defenses at issue.” Avon Lake further maintained that
the deponents refused to respond “even after the Court instructed the parties on
how to handle disputes regarding the appropriateness of particular questions.
Specifically, the Court directed the parties to object, then answer the question and
raise any objection with the Court later.”

At a pretrial on September 10, 2015, the trial court addressed the issue. The trial
court confirmed that it told the parties that “the format is that if there is an
objection, you pose the objection but answer the question and the Court will
address the objection as it relates to the various questions.” The trial court noted
that, “the fact of the matter is, and I warned you at that time and I don’t want to
do this, I have not granted sanctions against you, but I have indicated to you that
we are at a point because the trial is approaching that I am going to have to
impose sanctions. Those sanctions could include a[ ] dismissal of your action.”
Ultimately, Avon Lake agreed to submit interrogatories to [] Pietrangelo and his
brother instead of attempting another deposition. The trial court indicated that
objections to the interrogatories could be made, but the questions still must be
answered. At the end of the pretrial, the trial court declined to impose sanctions
on either side, but nonetheless admonished that, “[i]f there are any further
problems * * * I will impose sanctions. And sanctions may include either
granting judgment in one instance or in dismissing the lawsuit.” On September
17, 2015, the trial court issued an order reciting the events of the pretrial, which
included the warning that “[f]ailure to comply with these orders will result in
sanctions which may include dismissal with prejudice or entry of judgment.”

On September 18, 2015, Avon Lake filed a motion to hold [] Pietrangelo in
contempt and to dismiss his case with prejudice. Avon Lake asserted that []
Pietrangelo refused to answer four of the interrogatories claiming that the
 4

questions were not within the scope of the trial court’s order. On the day of the
scheduled trial, September 21, 2015, the trial court heard the parties on Avon
Lake’s motion. That day, the trial court issued a judgment entry stating that []
Pietrangelo “ha[d] been repeatedly put on notice that continued non compliance
with legitimate discovery requests would result in sanctions including a dismissal
with prejudice of this case.” The trial court then concluded that, “[t]he Court
must enforce its orders and has inherent authority to do so. Due to [Pietrangelo’s]
disobedience, resistan[ce] to and refusal to comply with lawful orders of this
Court, this case is dismissed with prejudice.” The trial court went on to find that
[] Pietrangelo “acted in bad faith and vexatiously[ ]” and held him in “direct
contempt of court and fined [him] $500.00.” The trial court, however, suspended
the fine and determined that “dismissal w[ould] serve as sufficient punishment for
[[] Pietrangelo’s] contempt.”

Thereafter, [] Pietrangelo and his brother filed a joint notice of appeal, appealing
the final judgment as well as various other orders of the trial court. Ultimately,
this Court consolidated the appeal from the trial court’s ruling on the medical
authorization form with the appeal from the final judgment.

(Footnotes omitted.) Pietrangelo v. Avon Lake, 9th Dist. Lorain Nos. 15CA010804,

15CA010873, 2016-Ohio-8201, ¶ 2-12.

{¶3} In the prior appeal, this Court concluded that the trial court lacked jurisdiction to

dismiss the case with prejudice while the medical authorization form appeal was pending. See

id. at ¶ 18-19. Thus we vacated the entry to the extent it dismissed the action and remanded the

matter for the trial court to impose a sanction. See id. at ¶ 19. Additionally, we overruled

Pietrangelo’s other contempt-related assignments of error in light of the absence of a proper

transcript of the contempt hearing in the record. Id. at ¶ 20-24. This Court declined to address

several assignments of error which it concluded were premature. See id. at ¶ 25. Finally, with

respect to the medical authorization form appeal, this Court agreed that “the trial court erred in

requiring [Pietrangelo] to execute the medical authorization form because the trial court failed to

comply with due process requirements[.]” Id. at ¶ 33. Thus, we remanded the matter “for the

trial court to consider [] Pietrangelo’s memorandum in response already filed in the trial court.”

Id. at ¶ 34.
 5

{¶4} Upon remand, the trial court issued an entry that once again dismissed the action

with prejudice. Pietrangelo has appealed, pro se, raising nineteen assignments of error, which

will be addressed out of sequence to facilitate our analysis.

II.

ASSIGNMENT OF ERROR III

[THE TRIAL COURT] VIOLATED THE COURT’S MANDATE IN APPEAL
NOS. 15CA010804 AND 15CA010873.

{¶5} Pietrangelo argues in his third assignment of error that the trial court violated this

Court’s mandate in the prior appeal.

{¶6} “The law of the case doctrine provides that the decision of a reviewing court in a

case remains the law of that case on the legal questions involved for all subsequent proceedings

in the case at both the trial and reviewing levels.” (Internal quotations and citations omitted.)

Cleveland Akron-Canton Advertising Coop. v. Physician’s Weigh Loss Ctrs. Of Am., Inc., 9th

Dist. Summit No. 27535, 2016-Ohio-3039, ¶ 11. “The doctrine prevents lower courts from

disregard[ing] the mandate of a superior court in a prior appeal in the same case.” (Internal

quotations and citations omitted.) Id.

{¶7} In the prior appeal, this Court vacated the portion of the trial court’s entry that

dismissed Pietrangelo’s case with prejudice. Pietrangelo, 2016-Ohio-8201, at ¶ 19. We

overruled Pietrangelo’s other assignments of error related to the contempt findings, holding,

procedure, and suspended monetary sanction due the absence of a proper transcript from our

record. See id. at ¶ 20-24. Accordingly, the trial court’s findings and holdings related to

contempt (aside from the dismissal) were not altered by the prior appeal. In addition, with

respect to the medical authorization form appeal, we “remanded [the matter] for the trial court to
 6

consider [] Pietrangelo’s memorandum in response already filed in the trial court.” See id. at ¶

34.

{¶8} Upon remand, the trial court issued an entry that summarized the appeal. The trial

court then vacated the entry that required Pietrangelo to execute a medical authorization form

concluding it was overly broad. After doing so, the trial court stated that:

The Court incorporates by reference all of the earlier findings in this case, all of
this Court’s earlier rulings, and finds that due to the Plaintiff’s disobedience,
resistant, and refusal to comply with lawful orders of this Court, efforts to
obstruct and delay appropriate discovery requests, this case is dismissed with
prejudice. The Court finds that the Plaintiff has acted in bad faith and
vexatiously.

The Plaintiff is held in contempt of Court and fined $500.00. The fine is
suspended and the dismissal will serve as sufficient punishment for Plaintiff’s
contempt. Plaintiff to bear costs. Defendant’s request for attorney fees is denied.

{¶9} Pietrangelo argues that by stating that the trial court “incorporates by reference all

of the earlier findings in this case, all of this Court’s earlier rulings,” the trial court was

incorporating the order concerning the medical authorization form that it vacated and the

dismissal that this Court vacated. Thus, Pietrangelo appears to argue that the trial court

reinstated orders or parts of orders that were vacated. While the trial court’s choice of language

was less than ideal, considering the entry as a whole, we cannot say that the trial court intended

to reinstate vacated entries or portions of entries, particularly when the trial court made a point to

acknowledge what this Court did in the appeal and itself vacated the order requiring Pietrangelo

to execute the medical authorization form. Instead, it appears that the trial court’s intention was

to incorporate prior orders and findings that would support the trial court’s dismissal of the

action with prejudice.

{¶10} Nonetheless, as this Court did not vacate the prior finding of contempt and the

suspended monetary sanction in the prior appeal, to the extent the trial court again entered a
 7

finding of contempt and a suspended monetary sanction its order is vacated. See Cleveland

Akron-Canton Advertising Coop., 2016-Ohio-30309, at ¶ 11.

{¶11} Pietrangelo’s third assignment of error is overruled.

ASSIGNMENT OF ERROR I

[THE TRIAL COURT’S] DECEMBER 28, 2016
FINDINGS/HOLDINGS/RULINGS (INCLUDING INCORPORATED
EARLIER FINDINGS/RULINGS), FINDING/HOLDING PIETRANGELO IN
CONTEMPT, FINING HIM $500 (SUSPENDED), AND DISMISSING HIS
CASE WITH PREJUDICE, AND THE ORDER/JUDGMENT ENTRY OF
SAME, WERE PLAIN ERROR, PREJUDICIAL ERROR, AND/OR ABUSE OF
DISCRETION, INCLUDING DUE TO EACH OF THE FOLLOWING
SEPARATE ERRORS/ABUSED OF DISCRETION WHICH ARE FULLY
INCORPORATED HEREIN AS THE DISCUSSION FOR THIS ASSIGNMENT
OR ERROR.

{¶12} With respect to Pietrangelo’s first assignment of error, the only argument he

offers is the text of his assignment of error. While the text of the assignment of error attempts to

incorporate all of his subsequent argument, in light of the fact that Pietrangelo’s brief is 30

pages, such is clearly an attempt to circumvent the pages limits established in this Court’s local

rules. See Loc.R. 7(E). This Court will not condone Pietrangelo’s disregard for the local rules

and will not address this assignment of error which has not been separately argued in his brief.

See Loc.R. 7(B)(7).

{¶13} Pietrangelo’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

[THE TRIAL COURT] NON-RANDOMLY PRESIDED OVER SEVEN
CONTEMPORANEOUS BUT SEPARATE LORAIN COUNTY COURT OF
COMMON PLEAS CASES INVOLVING PIETRANGELO, INCLUDING THE
INSTANT CASE, IN A DELIBERATE EFFORT TO RULE AGAINST
PIETRANGELO.

{¶14} Pietrangelo argues in his second assignment of error that the trial judge in this

matter non-randomly presided over seven separate common pleas cases, including the underlying
 8

case, and that he did so in contravention of the local rules and in an attempt “to fix the cases

against Pietrangelo.”

{¶15} First, we note that Pietrangelo acknowledges in his brief that the current trial

judge only began presiding over the instant matter after being formally assigned by the Supreme

Court. This assignment occurred after the initial trial judge recused himself after Pietrangelo

filed two affidavits of disqualification against that trial judge. Additionally, the record contains a

filing from the Supreme Court indicating that the current trial judge was assigned by the

Supreme Court after the Administrative Judge of the Lorain County Court of Common Pleas

requested the assignment of a visiting judge. Pietrangelo has failed to offer an argument

explaining how this assignment in this case violated the law. See App.R. 16(A)(7).

{¶16} To the extent Pietrangelo attempts to challenge the trial judge’s assignments to

other cases that Pietrangelo is apparently involved in, those cases are not before us and neither

are those records. This Court has no jurisdiction to decide issues related to cases that are not

before us on appeal.

{¶17} Thus, Pietrangelo’s argument that the trial judge’s multiple “non-random”

assignments to Pietrangelo’s cases and the judge’s rulings against Pietrangelo were

“unconstitutional and violated due process” cannot succeed on appeal. Even assuming the merits

of the argument could be addressed by this Court, the evidence that Pietrangelo argues supports

his claim is not in the record before us. In other words, based on the record before us,

Pietrangelo has not demonstrated that the trial court improperly presided over seven of

Pietrangelo’s cases or even that the trial judge repeatedly ruled against him in those seven cases

as the records of those other cases are not part of the record of this case.

{¶18} Pietrangelo’s second assignment of error is overruled.
 9

ASSIGNMENT OF ERROR IV

[THE TRIAL COURT] DID NOT PROVIDE A CLEAR AND COMPLETE
RECITAL OF THE FACTS AND BASES UPON WHICH HE FOUND/HELD
PIETRANGELO IN CONTEMPT.

{¶19} Pietrangelo argues in his fourth assignment of error that the trial court erred in

failing to provide a complete recital of the facts and reasons upon which the trial court found

Pietrangelo in contempt in its December 28, 2016 order.

{¶20} Pietrangelo’s argument is without merit. The trial court in its September 21, 2015

order found Pietrangelo in contempt and issued a suspended monetary sanction. The finding of

contempt was affirmed on appeal. See Pietrangelo, 2016-Ohio-8201, ¶ 20-24. Those findings

cannot now be challenged again. See Nolan v. Nolan, 11 Ohio St.3d. 1, 4 (1984) (“Thus, the

decision of an appellate court in a prior appeal will ordinarily be followed in a later appeal in the

same case and court.”). Further, to the extent the trial court appears to have exceeded its

authority on remand by again finding Pietrangelo in contempt in the December 28, 2016 order,

that portion of the entry has been vacated above.

{¶21} Pietrangelo’s fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

[THE TRIAL COURT] DENIED PIETRANGELO NOTICE OF, AND A
MEANINGFUL OPPORTUNITY TO RESPOND TO/IN, AVON LAKE’S
CONTEMPT MOTION AND THE RESULTING IMPROMPTU CONTEMPT
HEARING DURING THE TRIAL[.]

ASSIGNMENT OF ERROR VI

[THE TRIAL COURT’S] PREDECESSOR PREJUDICIALLY ORDERED
PIETRANGELO TO PROVIDE AN EMAIL ACCOUNT FOR SERVICE[.]

ASSIGNMENT OF ERROR VII

[THE TRIAL COURT] PREJUDICIALLY REFUSED TO CONTINUE THE
IMPROMPTU CONTEMPT HEARING.
 10

ASSIGNMENT OF ERROR VIII

[THE TRIAL COURT] MIS-CHARACTERIZED PIETRANGELO’S
ALLEGED CONTEMPT AS DIRECT INSTEAD OF INDIRECT, AND
DENIED PIETRANGELO A FORMAL CONTEMPT TRIAL (AND
ATTENDANT CONSTITUTIONAL SAFEGUARDS) TO WHICH
PIETRANGELO WAS ENTITLED.

ASSIGNMENT OF ERROR IX

[THE TRIAL COURT] ACTUALLY FOUND PIETRANGELO GUILTY OF
CRIMINAL CONTEMPT, BUT DID NOT PROVIDE HIM THE REQUISITE
CONSTITUTIONAL DUE PROCESS PROTECTIONS.

ASSIGNMENT OF ERROR X

[THE TRIAL COURT’S] CONTEMPT FINDINGS/HOLDINGS WERE
ARBITRARY/UNREASONABLE, AND WERE NOT SUPPORTED BY THE
EVIDENCE BEYOND A REASONABLE DOUBT, THE APPLICABLE
STANDARD, SEE SUPRA, OR EVEN CLEARLY AND CONVINCINGLY,
THE STANDARD FOR CIVIL CONTEMPT.

{¶22} Pietrangelo’s fifth through tenth assignments of error address arguments that this

Court previously addressed in the prior appeal and overruled. See Pietrangelo, 2016-Ohio-8201,

¶ 20-24. It is well settled that, “the decision of an appellate court in a prior appeal will ordinarily

be followed in a later appeal in the same case and court.” Nolan at 4. Pietrangelo has not

provided a legally compelling reason for this Court to deviate from that rule and we overrule his

arguments on that basis.

{¶23} Pietrangelo’s fifth through tenth assignments of error are overruled.

ASSIGNMENT OF ERROR XI

[THE TRIAL COURT’S] CONTEMPT SANCTIONS – PARTICULARLY HIS
DISMISSAL WITH PREJUDICE – WERE EXCESSIVE/UNREASONABLE.

{¶24} Pietrangelo argues in his eleventh assignment of error that the trial court’s

contempt sanctions were excessive or unreasonable. In particular, he focuses on the sanction of

dismissal with prejudice.
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{¶25} Both discovery and contempt sanctions are reviewed for an abuse of discretion.

See Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256 (1996) (discovery sanctions); State

ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11 (1981) (“This court will not reverse the decision

of the court below in a contempt proceeding in the absence of a showing of an abuse of

discretion.”).

{¶26} To the extent that Pietrangelo contests the contempt sanction of the suspended

fine, his argument is overruled as issues related to contempt, aside from the dismissal, were

addressed in the prior appeal and cannot now be revisited. See Pietrangelo, 2016-Ohio-8201, ¶

20-24; Nolan, 11 Ohio St.3d. at 4. Pietrangelo additionally argues that dismissal was an

improper contempt sanction; however, after considering the record, including the transcript1 and

the trial court’s journal entries addressing the issue, we conclude that the sanction of dismissal

was a discovery sanction pursuant to former Civ.R. 37.

{¶27} As discussed above, on September 18, 2015, Avon Lake filed a motion to hold

Pietrangelo in contempt and to dismiss his case with prejudice. Avon Lake argued that

Pietrangelo refused to answer four of the interrogatories claiming that the questions were not

within the scope of the trial court’s order. Within the motion, Avon Lake cited to former Civ.R.

37 as a basis for dismissal. Thus, at the hearing on the motion, issues related to discovery were

the primary focus, wherein the trial court recited the numerous problems that were encountered

in discovery. The trial court noted that the interrogatories were presented to Pietrangelo as an

accommodation and that the trial court had previously refused to impose sanctions despite

1
Subsequent to the release of this Court’s prior appeal, an order indicating that the court
reporter who transcribed the contempt hearing was an official court reporter was filed in the trial
court. Additionally, another copy of the transcript was filed in this appeal indicating that the
court reporter was an official court reporter for the trial judge. Accordingly, the transcript can be
considered for purposes of this appeal and the issues that are properly before us at this time.
 12

requests from Avon Lake. The trial court also noted that Pietrangelo had been previously

informed that dismissal would be a possibility if Pietrangelo failed to comply with the discovery

orders.

{¶28} In the trial court’s December 28, 2016 entry that is the subject of this appeal, the

trial court “incorporate[d] by reference all of the earlier findings in this case, all of this Court’s

earlier rulings, and f[ound] that due to the Plaintiff’s disobedience, resistan[ce], and refusal to

comply with lawful orders of this Court, efforts to obstruct and delay appropriate discovery

requests, this case is dismissed with prejudice. The Court [further] f[ound] that the Plaintiff has

acted in bad faith and vexatiously.”

{¶29} One of the trial court’s prior rulings, that it appears to have incorporated in its

December 28, 2016 entry, was the September 21, 2015 entry in which the trial court found

Pietrangelo in contempt and attempted to dismiss the action. That entry was the subject of the

prior appeal.

{¶30} Therein the trial court stated:

The discovery aspect of this law suit has been strained. The Plaintiff has not
acted in good faith and has proceeded in a man[ner] designed to obstruct
discovery rather than to accomplish same. The Plaintiff refused to answer
appropriate Rule 33 Interrogatories, refused to respond to questions in the
deposition held on July 27, 2015, advised his client-brother, Lee Pietrangelo not
to answer, and refused to fully and completely answer Interrogatories submitted to
him on September 11, 2015. It is noted that the use of interrogatories was an
accommodation for both James and Lee Pietrangelo.

The complained of questions are not in the area of privilege nor do they relate to
trade secrets. The Plaintiff was specifically ordered to answer the Defendant’s
questions and appropriate follow-up questions.

The Court is mindful that the law abhors resolution by default. In this case, the
Plaintiff has been repeatedly put on notice that continued non[-]compliance with
legitimate discovery requests would result in sanctions including a dismissal with
prejudice of this case. This Court has declined to impose requests for sanctions
filed in the past.
 13

The Court must enforce its orders and has inherent authority to do so. Due to the
Plaintiff’s disobedience, resistan[ce] to and refusal to comply with lawful orders
of this Court, this case is dismissed with prejudice.[2]

{¶31} The trial court then went on to determine that Pietrangelo “acted in bad faith and

vexatiously” and held him in contempt and fined him $500.00. The court then suspended the

fine and concluded that “the dismissal will serve as sufficient punishment for Plaintiff’s

contempt.”

{¶32} The wording of the entry, while certainly not ideal, nonetheless leads to the

conclusion that the dismissal was not imposed as a contempt sanction. The trial court attempted

to dismiss the action prior to finding Pietrangelo in contempt. After attempting to dismiss the

action, only then did the trial court find Pietrangelo in contempt, fine him $500.00, and then

suspend the fine. This notion is furthered by the trial court’s statement that “the dismissal will

serve as sufficient punishment for Plaintiff’s contempt.” Implicit within this phrase is the idea

that the dismissal was not imposed as a contempt sanction, but would on “serve” as one.

{¶33} In addressing cases involving discovery sanctions issued pursuant to former

Civ.R. 37, this Court has stated that, “[w]hile dismissal with prejudice is the harshest of

sanctions, this Court will not disturb the judgment of the trial court unless the degree of the

sanction is disproportionate to the seriousness of the infraction under the facts of the case.”

(Internal quotations and citations omitted.) Altercare, Inc. v. Clark, 9th Dist. Lorain No.

12CA010211, 2013-Ohio-2785, ¶ 14. “Where the record does not indicate [that] failure to

comply with discovery was due to involuntary inability, such as illness, rather than willfulness,

bad faith or any other fault of the noncomplying party, a trial court does not abuse its discretion

2
While this Court did vacate the sanction of dismissal in the prior appeal, we did not
vacate the trial court’s rationale for the dismissal. See Pietrangelo, 2016-Ohio-8201, ¶ 19.
 14

by dismissing the action pursuant to [former] Civ.R. 37(B)(2)(c).” (Internal quotations and

citation omitted.) Id. “In reviewing the appropriateness of the trial court’s sanction of dismissal,

this court will not substitute its judgment for that of the trial court.” (Internal quotations and

citation omitted.) Id. Nonetheless, “[d]ismissal of the action, whether pursuant to Civ.R. 37 or

41, is proper only after notice to the plaintiff’s counsel.” Aydin Co. Exchange, Inc. v. Marting

Realty, 118 Ohio App.3d 274, 280 (9th Dist.1997).

{¶34} Pietrangelo has only challenged the trial court’s dismissal as a contempt sanction,

not as a discovery sanction. Thus, Pietrangelo has not explained how the trial court’s dismissal

violated former Civ.R. 37, and this Court will not sua sponte construct an argument for him. See

Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998).

Further, while Pietrangelo complains that the sanction was disproportionate to his conduct, he

does so by focusing on the fact that he only failed to answer a small number of interrogatories.

In so doing, he fails to acknowledge that the history of discovery conduct can be considered in

fashioning an appropriate sanction. See Foley v. Nussbaum, 2d Dist. Montgomery No. 24572,

2011-Ohio-6701, ¶ 31, quoting Russo v. Goodyear Tire & Rubber Co., 36 Ohio App.3d 175, 178

(9th Dist.1987) (“In determining whether the sanction of dismissal is warranted, the trial court

should consider ‘the history of the case; all the facts and circumstances surrounding the

noncompliance, including the number of opportunities and the length of time within which the

faulting party had to comply with the discovery or the order to comply; what efforts, if any, were

made to comply; the ability or inability of the faulting party to comply; and such other factors as

may be appropriate.’”); see also Sutton v. Douglas, 9th Dist. Summit No. 26958, 2014-Ohio-

1337, ¶ 14, 16. Based on the trial court’s September 21, 2015 entry, it is clear the trial court

considered the history of the case in imposing the sanction. See Sutton at ¶ 14, 16. In light of
 15

Pietrangelo’s limited argument on appeal and the record before us, Pietrangelo has not

demonstrated that the trial court abused its discretion in dismissing the action with prejudice.

{¶35} Pietrangelo’s eleventh assignment of error is overruled.

ASSIGNMENT OF ERROR XII

[THE TRIAL COURT] HELD A HEARING IN ABSENTIA OF
PIETRANGELO AND WITHOUT NOTICE TO HIM[.]

ASSIGNMENT OF ERROR XIII

[THE TRIAL COURT] WRONGLY STATED THAT PIETRANGELO HAD
BEEN TELEPHONICALLY NOTIFIED/DULY NOTIFIED OF THE
HEARING[.]

ASSIGNMENT OF ERROR XIV

[THE TRIAL COURT] WRONGLY STATED THAT PIETRANGELO TOLD
COURT STAFF HE WOULD NOT BE APPEARING FOR THE HEARING[.]

ASSIGNMENT OF ERROR XV

DURING THE HEARING, [THE TRIAL COURT] SCHEDULED
DEPOSITIONS FOR PIETRANGELO AND HIS BROTHER WITHOUT
REASONABLE NOTICE AND WITHOUT A SUBPOENA FOR THE
LATTER[.]

ASSIGNMENT OF ERROR XVI

[THE TRIAL COURT] DENIED THE PIETRANGELOS’ EMERGENCY
MOTION FOR A PROTECTIVE ORDER AND TO QUASH THE
DEPOSITIONS DESPITE THE LACK OF NOTICE/SUBPOENA[.]

ASSIGNMENT OF ERROR XVII

[THE TRIAL COURT] DISREGARDED THE PIETRANGELOS’
COMPLAINTS – BOTH DURING AND AFTER THE PIETRANGELOS’
RESCHEDULED JULY 27, 2015 DEPOSITIONS – OF HARASSMENT BY
AVON LAKE’S COUNSEL, INCLUDING AMONG OTHER THINGS, THEIR
DEPOSING PIETRANGELO’S BROTHER (AGAIN A NON-PARTY) FOR
APPROXIMATELY THREE HOURS, AND ASKING THE PIETRANGELOS
FOR PRIVILEGED INFORMATION, AND/OR FOR SENSITIVE OR
BURDENSOME PERSONAL INFORMATION THAT WOULD NOT HAVE
REASONABLY HAVE LED TO THE DISCOVERY OF ADMISSIBLE
EVIDENCE[.]
 16

ASSIGNMENT OF ERROR XVIII

DURING THE SEPTEMBER 10, 2015 FINAL PRE-TRIAL HEARING, [THE
TRIAL COURT] IMPLICITLY SUMMARILY OVERRULED THE
PIETRANGELO[S’] DEPOSITION OBJECTIONS UNDER HIS EXTREME
PHILOSOPHY THAT THEY HAD NO RIGHT TO OBJECT AT ALL DURING
THE DEPOSITIONS.

ASSIGNMENT OF ERROR XIX

[THE TRIAL COURT] HEARD AVON LAKE’S SEPTEMBER 3, 2015
MOTION TO COMPEL DEPOSITION ANSWERS IN VIOLATION OF THE
PIETRANGELO[S’] RIGHTS.

{¶36} In light of our resolution of Pietrangelo’s eleventh assignment of error, which

affirmed the trial court’s dismissal of Pietrangelo’s case, Pietrangelo’s twelfth through nineteenth

assignments of error have been rendered moot and will therefore not be addressed. See App.R.

12(A)(1)(c).

III.

{¶37} Pietrangelo’s first through eleventh assignments of error are overruled.

Pietrangelo’s twelfth through nineteenth assignments of error are moot. To the extent the trial

court’s December 28, 2016 entry imposes contempt and a suspended monetary sanction, the

entry is vacated as exceeding the scope of this Court’s remand. The judgment of the Lorain

County Court of Common Pleas is affirmed in part, and vacated in part.

Judgment affirmed in part,
and vacated in part.

There were reasonable grounds for this appeal.
 17

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR
FOR THE COURT

HENSAL, P. J.
TEODOSIO, J.
CONCUR.

APPEARANCES:

JAMES E. PIETRANGELO, II, pro se, Appellant.

MARGARET M. KOESEL and TRACEY L. TURNBULL, Attorneys at Law, for Appellee.

ABRAHAM LIEBERMAN, Law Director, and DAVID M. GRAVES, Assistant Law Director
for Appellee.