[This opinion has been published in Ohio Official Reports at
87 Ohio St.3d 517.]
HILLABRAND, APPELLANT, v. DRYPERS CORPORATION, APPELLEE, ET AL.
[Cite as Hillabrand v. Drypers Corp., 2000-Ohio-468.]
Civil procedure—Trial court prematurely grants a Civ.R. 37 motion for sanctions,
when.
(Nos. 98-2435 and 98-2444—Submitted September 22, 1999—Decided January
19, 2000.)
APPEALS from the Court of Appeals for Marion County, Nos. 9-98-18 and
9-98-23.
__________________
{¶ 1} On May 3, 1996, Todd Hillabrand, plaintiff-appellant, allegedly
received an electrical shock while working on a roofing project at Drypers
Corporation. Apparently, Hillabrand was tossing debris from the roof to a trash bin
located on the ground below when the debris came into contact with power lines
located nearby.
{¶ 2} Hillabrand filed a complaint on May 30, 1997, alleging that Drypers
had negligently placed the trash bin in a dangerously close proximity to the power
lines. Drypers filed an answer and served Hillabrand with “Interrogatories and
Request for Production of Documents” on July 28, 1997.
{¶ 3} Hillabrand did not respond to Drypers’s interrogatories and request
for documents in a timely fashion. On February 17, 1998, nearly seven months
after the interrogatories were filed, Drypers filed a motion to compel discovery.
Later that same day, Hillabrand filed a “notice of service” with the court, stating
that he had served his responses to Drypers’s discovery requests on counsel for
Drypers. Hillabrand did not file the responses themselves.
{¶ 4} The next day, February 18, 1998, the trial court granted the motion to
compel, ordering Hillabrand to comply with the discovery requests by March 3,
SUPREME COURT OF OHIO
1998. The trial court also stated that “[f]ailure to comply with this order will result
in sanctions, which may include dismissal of the complaint.”
{¶ 5} Hillabrand did not respond to the court order. On March 10, 1998,
Drypers filed a motion for sanctions, seeking attorney fees and requesting that
Hillabrand’s case be dismissed with prejudice. Drypers attached a copy of
Hillabrand’s purported answers to interrogatories, arguing that the responses failed
to address any of the substantive issues contained in the requests. Two days later,
the trial court dismissed Hillabrand’s case with prejudice and later awarded Drypers
attorney fees. The court of appeals affirmed the dismissal with prejudice and the
award of attorney fees.
{¶ 6} The cause is now before this court upon the allowance of discretionary
appeals.
__________________
Gallon & Takacs Co., L.P.A., Kevin J. Boissoneault and Brian J. Judis, for
appellant.
Baran, Piper, Tarkowsky, Fitzgerald & Theis Co., L.P.A., and David C.
Badnell, for appellee.
__________________
FRANCIS E. SWEENEY, SR., J.
{¶ 7} Hillabrand argues in this case that the trial court prematurely granted
appellee’s Civ.R. 37 motion for sanctions, dismissing his case with prejudice,
without allowing him sufficient time to contest the motion. We agree and therefore
reverse the judgment of the court of appeals.
{¶ 8} Civ.R. 41(B)(1) permits a trial court to dismiss an action for failure to
comply with a court order, but only after notice to plaintiff’s counsel. This court
has held that a dismissal with prejudice is proper only “when counsel has been
informed that dismissal is a possibility and has had a reasonable opportunity to
defend against dismissal.” (Emphasis added.) Quonset Hut, Inc. v. Ford Motor
2
January Term, 2000
Co. (1997), 80 Ohio St.3d 46,
684 N.E.2d 319, syllabus. “[T]he notice requirement
of Civ.R. 41(B)(1) applies to all dismissals with prejudice, including those entered
pursuant to Civ.R. 37(B)(2)(c) for failure to comply with discovery orders.”
(Emphasis sic.) Ohio Furniture Co. v. Mindala (1986),
22 Ohio St.3d 99, 101, 22
OBR 133, 135,
488 N.E.2d 881, 883; Sazima v. Chalko (1999),
86 Ohio St.3d 151,
712 N.E.2d 729. “The purpose of notice is to ‘provide the party in default an
opportunity to explain the default or to correct it, or to explain why the case should
not be dismissed with prejudice.’ ” Logsdon v. Nichols (1995),
72 Ohio St.3d 124,
128,
647 N.E.2d 1361, 1365, quoting McCormac, Ohio Civil Rules Practice (2
Ed.1992) 357, Section 13.07.
{¶ 9} Hillabrand argues that the trial court erred when it ruled on appellee’s
motion for sanctions prior to the time specified in Civ.R. 6(D) and without allowing
him the opportunity to file a written response. Civ.R. 6(D), as well as Civ.R.
7(B)(2), regulate the time frame for submitting and responding to motions. Civ.R.
6(D) states:
“Time: motions. A written motion, other than one which may be heard ex
parte, and notice of the hearing thereof shall be served not later than seven days
before the time fixed for the hearing, unless a different period is fixed by these rules
or by order of the court.”
{¶ 10} Civ.R. 7(B)(2) gives a trial court the authority to enact a local rule
of court modifying the seven-day period between the filing and hearing of a motion
under Civ.R. 6(D). The rule also gives the trial court the authority to hear motions
without an oral hearing. McGlone v. Grimshaw (1993), 86 Ohio App.3d 279, 283-
284,
620 N.E.2d 935, 937-938. The rule states that “[t]o expedite its business, the
court may make provision by rule or order for the submission and determination of
motions without oral hearing upon brief written statements or reasons in support
and opposition.”
{¶ 11} In this case, there was a local rule modifying the time to respond to
3
SUPREME COURT OF OHIO
motions. Loc.R. 3.6 of the Court of Common Pleas of Marion County states the
following regarding motions:
“3.6 All Other Motions.
“All other motions [i.e., motions other than those for summary judgment or
for a continuance] will be decided without oral hearing unless oral argument is
requested and determined necessary by the Court.
“3.6.1 The moving party shall file a brief supporting memorandum
containing the authorities relied upon and any other documents supported by
affidavit required or appropriate to support the motion.
“3.6.2 Each party opposing the motion shall file a written response within
fourteen (14) days after receipt of the motion.” (Emphasis added.)
{¶ 12} Both Quonset and Mindala involved situations where the parties had
an opportunity to file a responsive motion to the request for sanctions before
dismissal was granted. However, unlike the plaintiffs in Mindala and Quonset,
Hillabrand did not even have an opportunity to file a written response to defend
against dismissal before the judge granted appellee’s motion. The trial court in this
case granted appellee’s motion for sanctions just two days after it was filed, and on
the same day that Hillabrand received the motion for sanctions from appellee. In a
similar case, Cook v. Harris (May 18, 1998), Stark App. No. 1997CA00411,
unreported, 1998 WL 401158, the Fifth District Court of Appeals held that the trial
court abused its discretion under Quonset and Mindala when it dismissed the
plaintiff’s case only four days after a motion to dismiss was filed, without regard to
a local rule allowing a party fourteen days to respond. See, also, Noles v. Bennett
(Sept. 30, 1998), Lorain App. No. 97CA006988, unreported,
1998 WL 668201
(immediate dismissal for failure to appear at pretrial conference). A “reasonable
opportunity to defend against dismissal” under Quonset contemplates that a trial
court allow the party opposing dismissal the opportunity to respond at least within
4
January Term, 2000
the time frame allowed by the procedural rules of the court.1
{¶ 13} Accordingly, the judgment of the court of appeals is reversed, and
the cause is remanded to the trial court for further proceedings consistent with this
opinion.
Judgment reversed
and cause remanded.
MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
DOUGLAS, J., concurs separately.
COOK, J., dissents.
__________________
DOUGLAS, J., concurring.
{¶ 14} I concur with the well-reasoned opinion of the majority. I write
separately to point out that this case is about Civ.R. 41(B)(1) and, not surprisingly,
the dissent does not even mention the rule or its wording—and for good reason. In
part, the rule states that a court may, “after notice to the plaintiff’s counsel, dismiss
an action or claim.” This court ruled on the “notice” provision in Logsdon v.
Nichols (1995), 72 Ohio St.3d 124,
647 N.E.2d 1361. That case ended any
confusion until our decision in Quonset Hut, Inc. v. Ford Motor Co. (1997),
80
Ohio St.3d 46,
684 N.E.2d 319, which once again clouded the issue. In agreeing
with the majority herein, I continue to adhere to the teachings of Logsdon and to
my dissent in Quonset Hut. See
id. at 49-51,
684 N.E.2d at 322-324.
1. Not only did the trial court prematurely grant appellee’s motion for sanctions, it also failed to
allow Hillabrand sufficient time to respond to appellee’s initial motion to compel discovery,
granting it the day after it was filed. Furthermore, we are not persuaded by appellee’s argument that
Hillabrand had sufficient opportunity to explain his inaction after the motion to compel discovery
was granted and thus failed to protect his rights. Regardless of the fact that Hillabrand could have
taken additional steps to explain his noncompliance after the motion to compel discovery was
granted, this does not excuse the trial court from disregarding Hillabrand’s right to respond under
the Ohio Rules of Civil Procedure.
5
SUPREME COURT OF OHIO
__________________
COOK, J., dissenting.
{¶ 15} Because I believe that Hillabrand received a reasonable opportunity
to defend against dismissal, I respectfully dissent.
{¶ 16} As the majority recognizes, a dismissal with prejudice is proper only
“when counsel has been informed that dismissal is a possibility and has had a
reasonable opportunity to defend against dismissal.” Quonset Hut, Inc. v. Ford
Motor Co. (1997), 80 Ohio St.3d 46,
684 N.E.2d 319, syllabus. Although the
majority determines that Hillabrand was deprived of the opportunity to defend, I
am convinced that the events surrounding the dismissal compel the opposite
conclusion.
{¶ 17} The trial court’s February 18 order gave Hillabrand approximately
two weeks to produce the requested interrogatory information or risk sanctions,
including dismissal. At that point Hillabrand knew that dismissal was a possibility
and had two weeks to comply or respond with an explanation as to why compliance
was not possible and/or dismissal was inappropriate. Although he chose to do
nothing, this time frame provided him with more than an adequate opportunity “
‘to explain the default or to correct it, or to explain why the case should not be
dismissed with prejudice.’ ” Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 128,
647 N.E.2d 1361, 1365, quoting McCormac, Ohio Civil Rules Practice (2 Ed.1992)
357, Section 13.07.
{¶ 18} Despite this two-week period, the majority focuses upon the fact that
the case was dismissed before the applicable response time for motions. See Civ.R.
7(B)(2) and Loc.R. 3.6 of the Court of Common Pleas of Marion County.
Specifically, the majority concludes that a “ ‘reasonable opportunity to defend
against dismissal’ under Quonset contemplates that a trial court allow the party
opposing dismissal the opportunity to respond at least within the time frame
allowed by the procedural rules of the court.”
6
January Term, 2000
{¶ 19} The filing of the motion to dismiss, however, ought to have no effect
upon the determination of whether Hillabrand received a reasonable opportunity to
defend against dismissal. That motion, after all, was not necessary to the proper
dismissal of this case. The trial court had already ordered Hillabrand to comply
with the discovery request, stating explicitly that failure to comply within the
allotted time period could result in dismissal. Consequently, the court could have
properly dismissed this case sua sponte when that time period elapsed without
response. Civ.R. 37(B); see, e.g., Bratton v. E. Ohio Gas Co. (Aug. 6, 1997),
Summit App. No. 18137, unreported, 1997 WL 459983.
{¶ 20} Although the trial court chose to dismiss the case following
Drypers’s motion rather than sua sponte, that fact is of no significance to the
analysis. To conclude that the motion to dismiss enlarged the time period for
response to the trial court’s order allows the response time for the dismissal motion
to override the time frame given in the trial court’s order. Regardless of Drypers’s
motion, the fact remains that Hillabrand ignored an explicit court directive to
respond within a set time. After that period had elapsed without response, dismissal
was absolutely appropriate and the mere filing of a motion to dismiss should not
afford Hillabrand additional time to respond.
{¶ 21} Based upon the foregoing, I would affirm the appellate court’s
decision.
__________________
7
