Cambridge Mgt. of SEO, L.L.C. v. Babar Invest., Inc.

2025 Ohio 4441

• Court: Ohio Court of Appeals
• Decided: September 23, 2025
• Docket: CT2025-0030
• Status: Published

Opinion

[Cite as Cambridge Mgt. of SEO, L.L.C. v. Babar Invest., Inc., 2025-Ohio-4441.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

CAMBRIDGE MANAGEMENT Case No. CT2025-0030 OF SEO, LLC, Opinion & Judgment Entry Plaintiff - Appellant Appeal from the Court of Common -vs- Pleas of Muskingum County, Case No. CH2024-0009 BABAR INVESTMENT, INC., et al., Judgment: Reversed and Remanded Defendants - Appellees Date of Judgment: September 23, 2025

BEFORE: Craig R. Baldwin; Robert G. Montgomery; David M. Gormley, Judges

APPEARANCES: Aarica D. Eby & Lane A. Dailey, for Plaintiff-Appellant; Damion M. Clifford & Jonathan P. Corwin, for Defendants-Appellees.

Gormley, J.

{¶1} Cambridge Management of SEO, LLC appeals the judgment of the Court of

Common Pleas of Muskingum County prohibiting Cambridge from calling any witnesses

at trial after Cambridge failed to include a witness list in its trial brief. Because the trial

court did not act in accordance with its own pretrial orders, we reverse and remand for

further trial-court proceedings.

The Key Facts

{¶2} Babar Investment, Inc. and Muhammad Babar Chaudhry own a Holiday Inn

Express & Suites in Zanesville, Ohio. Next to the Holiday Inn is an undeveloped parcel

of real property owned by Cambridge. When Babar and Chaudhry allegedly placed on

Cambridge’s property some storage containers without Cambridge’s permission,

Cambridge sued, alleging trespass. {¶3} In June 2024, the trial court issued its first pretrial order, and that order set

some discovery deadlines and listed the dates for a pretrial hearing and a trial.

{¶4} The trial court issued its next pretrial order in September 2024. That order

provided more details about the court’s expectations, and it directed counsel for all parties

to file “a list identifying all witnesses . . . to be called at trial with a brief statement of the

purpose of their testimony.” Those witness lists were, according to the order, to be served

on opposing counsel at least 15 days before the trial date.

{¶5} That September order admonished the attorneys that ‘[n]o party shall be

permitted to call any witness, except rebuttal witnesses, whose name was not included

on the witness list . . . unless the identity of the witness was otherwise known to the

opposing party.” The entry also provided that the court may “in its discretion allow either

party to call any witness whose name is not included on a witness list, when doing so will

serve the interest of justice.” The final sentence of the entry, in bold print, provided that

“[f]ailure to comply with this order shall result in the imposition of appropriate sanctions

including, but not limited to, the exclusion of testimony or exhibits from evidence or the

dismissal of the non-compliant party’s claim or counterclaim.”

{¶6} Cambridge filed a combined motion for summary judgment and trial brief on

September 24, 2024. Nowhere within that document did Cambridge provide a witness

list.

{¶7} Babar and Chaudhry filed a trial brief a day later listing various potential

witnesses including Muhammad Babar Chaudhry, James Koehler, and Richard

Robinson. All three of those persons were deposed by the parties before the trial court’s discovery cut-off date, and transcripts of all three depositions were filed by one party or

another in the days before the starting date of the trial.

{¶8} The parties appeared at the courthouse on February 14, 2025 for the first

day of what was to be a bench trial. The parties then narrowed the issue for trial to the

amount of damages that the defendants might owe on Cambridge’s trespass claim.

{¶9} Before hearing any testimony, the trial court addressed some pending

motions in limine regarding the scope of the testimony of two of Cambridge’s possible

witnesses. Cambridge then called its first witness — James Koehler — and Babar and

Chaudhry objected, citing the fact that Cambridge had not filed a witness list. The trial

court granted what it termed a “motion” on behalf of Babar and Chaudhry. When

Cambridge then called Muhammad Chaudhry as a witness, the defendants raised the

same objection. The trial court again granted the “motion” and stated to Cambridge, “I

don’t know how you can call anybody” due to Cambridge’s failure to file a witness list.

Although Cambridge tried to explain to the trial judge that defendants Babar and

Chaudhry had knowledge of the witnesses and that all of the proposed witnesses had

been deposed, the judge was unmoved.

{¶10} Babar and Chaudhry then asked for a directed verdict, citing Cambridge’s

failure to establish any damages at trial. The trial court granted Babar and Chaudhry’s

motion for directed verdict and dismissed Cambridge’s complaint with prejudice. The trial

court also denied Cambridge’s motion for reconsideration.

{¶11} Cambridge now appeals the trial court’s judgment. Cambridge, Despite Failing to Proffer the Proposed Testimony of Its Witnesses, Did Not Waive Its Right to Appeal

{¶12} Babar and Chaudhry contend that Cambridge waived its right to appeal the

order barring it from presenting any witnesses at trial because Cambridge failed to proffer

the excluded evidence at trial.

{¶13} Evid.R. 103 provides that a party may not claim that a ruling on the

admission or exclusion of evidence was error unless “a substantial right of the party [wa]s

affected” and, when the trial court excludes evidence, “the substance of the evidence”

must have been “made known to the court by offer” or must be “apparent from the context

within which questions were asked.”

{¶14} That proffer requirement does not apply, though, when the trial court’s

exclusion of evidence rests not on the Rules of Evidence but instead on the proponent’s

alleged violation of a discovery obligation or a pretrial order. See, e.g., Grady v. Charles

Kalinsky, D.D.S., Inc., 2005-Ohio-5550, ¶ 24 (8th Dist.) (holding that where the trial court

had barred a party from presenting the testimony of an expert witness due to that party’s

alleged discovery violation, no proffer was needed); Hardy v. Newbold, 2003-Ohio-3995,

¶ 11 (4th Dist.) (where evidence was barred because of “discovery violations, not

evidentiary reasons,” the proponent was not required to “proffer the evidence at trial to

preserve the issue for appeal); Cheek v. Granger Trucking, 2001 WL 1398454, *5-6 (8th

Dist. Nov. 1, 2001) (where the trial court “excluded witnesses for discovery violations

rather than on evidentiary grounds,” there was “no need to proffer the excluded

testimony”). {¶15} Because the trial court excluded Cambridge’s witnesses as a sanction for

failing to file a witness list, Cambridge had no obligation to make a proffer of its proposed

evidence before appealing.

{¶16} Even if we were to determine that a proffer of the evidence was necessary,

this court has held that the proffer “‘need not be as specific as the testimony itself’” and

need only “‘be sufficient to enable the reviewing court to determine roughly what, if any,

impact the testimony may have had upon the final disposition of the case.’” State v.

Wood, 2023-Ohio-2045, ¶ 22 (5th Dist.), quoting Moser v. Moser, 72 Ohio App.3d 575,

580 (3d Dist. 1991).

{¶17} Prior to trial, the parties determined that the only remaining issue for

determination was the amount of damages on Cambridge’s trespass claim. Any witness

called by Cambridge would have testified on that limited issue. The parties also discussed

on the record two motions in limine regarding witness testimony prior to trial. One motion

dealt with the scope of the testimony of James Koehler, a witness that Cambridge shortly

thereafter attempted to call to testify at the trial. In addition, transcripts of all three

proposed witnesses’ pretrial depositions are in the record before us. Though Cambridge

did not make a formal proffer of evidence at trial, the record makes the substance of the

excluded testimony apparent to this court.

Though Cambridge Failed to File a Witness List, the Defendants Knew About Cambridge’s Likely Witnesses and Their Probable Testimony, and the Trial Court Should Not Have Barred Those Witnesses From Testifying

{¶18} Cambridge contends that the trial court abused its discretion when it

precluded Cambridge from presenting any witnesses at trial. {¶19} Court rules that regulate the discovery process are designed to facilitate the

parties’ trial preparations and prevent surprise at trial. Huffman v. Hair Surgeon, Inc., 19

Ohio St.3d 83, 86 (1985). The Ohio Rules of Civil Procedure allow courts to exclude

testimony as a sanction for failing to comply with discovery orders and for failing to timely

provide information or to identify witnesses. Civ.R. 37(B)(1)(b) and (C)(1).

{¶20} A trial court has broad discretion to determine appropriate sanctions for any

discovery violations, and a reviewing court should reverse a trial court’s determination on

those matters only for an abuse of discretion. Nakoff v. Fairview Gen. Hosp., 75 Ohio

St.3d 254 (1996), syllabus.

{¶21} And of course a trial court has considerable discretion regarding the

admission or exclusion of evidence. Kleyman v. Allstate Ins. Co., 2008-Ohio-7012, ¶ 37

(5th Dist.), citing State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus.

An abuse of discretion is more than an error of judgment; it involves a decision that is

unreasonable, unconscionable, or arbitrary. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983).

{¶22} Babar and Chaudhry did not file a motion to compel disclosure in this case.

The basis for the objection to Cambridge’s trial witnesses was Cambridge’s failure to

comply with the trial court’s order to file a witness list at least 15 days before the trial.

When a party fails to comply with a court order, the court upon a motion of the opposing

party or on its own initiative may dismiss an action or claim, after notice is given to the

noncomplying party. Civ.R. 41(B)(1). This notice requirement is satisfied when the party

“has been informed that dismissal is a possibility and has had a reasonable opportunity to defend against dismissal.” Smith v. Smith, 2013-Ohio-3551, ¶ 11 (5th Dist.), citing

Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 49 (1997).

{¶23} Trial courts have authority to issue orders setting deadlines for the

disclosure of witnesses and the submission of pretrial documents and to issue sanctions

when the parties do not comply with the orders. See Monea v. Lanci, 2011-Ohio-6377, ¶

109-110 (5th Dist.); Ransom v. Aldi, Inc., 2017-Ohio-6993, ¶ 24 (2d Dist.), quoting Ohio

Bell Tel. Co. v. C-5 Constr., Inc., 2010-Ohio-4762, ¶ 32 (2d Dist.) (“‘[a] trial court is

permitted to dismiss a case . . . against a party who fails to comply with a court order,

including discovery orders’”); Evans v. Corbett, 1982 WL 5571, *2 (5th Dist. Dec. 1, 1982)

(trial court did not abuse its discretion in dismissing two counts of plaintiff’s complaint for

failing to comply with a local rule requiring filing of trial briefs 15 days in advance of trial

when the sanction was enumerated in the rule).

{¶24} There is no question that Cambridge failed to file a witness list either in its

trial brief or separately. But the particular facts in this case — specifically the trial court’s

own entry — lead us to conclude that the trial court abused its discretion in imposing the

harsh sanction of excluding all of Cambridge’s trial witnesses.

{¶25} The trial court’s September 9, 2024 entry ordered that certain pretrial

documents be filed by a certain date, and that order also informed the parties that any

failure to follow the court’s order would result in sanctions, including perhaps “the

exclusion of testimony or . . . the dismissal of the non-compliant party’s claim.” In the

same order, though, the trial court advised the parties that they would not be permitted to

call witnesses not named on a witness list “unless the identity of the witness was

otherwise known to the opposing party.” {¶26} Though that last line seemingly informed Cambridge that no witness list was

needed — because all three of Cambridge’s proposed witnesses had been deposed

during the pretrial period, all three were on the defendants’ own witness list, and one of

the proposed witnesses was in fact a party to the case — the trial court overlooked that

pretrial instruction when the court precluded Cambridge’s witnesses from testifying.

{¶27} To be sure, Cambridge could and should have rigidly adhered to the trial

court’s pretrial order calling for the filing of a witness list. Any sanction imposed for a

misstep like this one, though, should be proportional to both the violation itself and the

prejudice suffered by the non-violating party. See Woodruff v. Barakat, 2002-Ohio-5616,

¶ 17 (10th Dist.) (finding that the trial court abused its discretion in excluding an expert

witness when the defendant knew the identity of plaintiff’s medical provider and was

aware that the plaintiff intended to call the medical provider as an expert witness).

{¶28} In this case, Babar and Chaudhry were aware of Cambridge’s intended

witnesses and knew — from the deposition testimony of those three witnesses — what

they were likely to say. (In fact, Chaudhry himself was one of the three witnesses, and

again, all three were on the defendants’ own witness list.) Surely defendants Babar and

Chaudhry suffered no prejudice from the lack of a witness list from Cambridge.

{¶29} When Cambridge attempted to question its first witness — James Koehler

(the managing partner of Cambridge) — Babar objected to the witness solely on the basis

that Cambridge had not filed a witness list. Babar had not made this objection moments

earlier when the parties had argued the motion in limine and the trial judge had denied

the defendants’ motion to exclude Koehler’s testimony on damages. The trial judge construed Babar’s objection as a motion and granted it, thereby precluding Koehler from

testifying.

{¶30} When Cambridge attempted to call Muhammad Chaudhry —a defendant in

the case — as an adverse witness, Babar made the same objection. The trial judge

inquired whether Cambridge had filed a witness list and when Cambridge responded that

it had not, the judge granted Babar’s “motion” and barred Cambridge from questioning.

Chaudhry. And next, Cambridge intended to call Richard Robinson (the regional property

manager of Cambridge), who had also been deposed by Babar, but the trial judge had by

then told Cambridge that no witnesses could be called in the absence of a witness list.

{¶31} Although Cambridge tried to explain that Babar knew the identities of the

witnesses that Cambridge intended to call and had deposed them, the trial court cut

Cambridge’s counsel off and stated that Babar was unable to prepare for trial without a

witness list from Cambridge. Babar then moved for a directed verdict, which the trial court

granted.

{¶32} The trial judge’s frustration with Cambridge at the trial was evident and not

unwarranted. But the exclusion of Cambridge’s witnesses without any inquiry into

whether Cambridge’s witnesses were known to the opposing party, whether there would

be any prejudice to the opposing party if Cambridge were to present witness testimony at

the trial, or whether allowing Cambridge to present witness testimony would — in the

words of the trial court’s own September 2024 order — “serve the interest of justice,” went

against the text and tenor of that order. Indeed, had the trial court made these inquiries,

it surely would have found that — again, in the words of the trial court’s own pretrial order

— “the identity of the witness[es] was . . . known to the opposing party,” and the court would have been hard-pressed to find that any prejudice would have flowed from

Cambridge’s failure to formally list the three names in a pretrial filing.

{¶33} Even though the trial court had assured the parties that known witnesses

not named on a witness list could testify at trial, that court did not adhere to its own written

order. In these circumstances, we conclude that the trial court’s decision to preclude

Cambridge from calling any witnesses at trial was not a reasonable one.

{¶34} The judgment of the Court of Common Pleas of Muskingum County is

reversed, and the case is remanded for further proceedings consistent with this opinion.

Costs are to be paid by Appellees Babar Investment, Inc. and Muhammad Chaudhry.

By: Gormley, J.;

Baldwin, P.J. and

Montgomery, J. concur.