[Cite as Handel v. Rosenbaum,
2016-Ohio-4861.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103365
CHARLES HANDEL
PLAINTIFF-APPELLANT
vs.
MANFRED E. ROSENBAUM, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-817940
BEFORE: Laster Mays, J., Kilbane, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: July 7, 2016
-i-
ATTORNEY FOR APPELLANT
Michael J. Cheselka, Jr.
75 Public Square, Suite 920
Cleveland, Ohio 44113-2084
ATTORNEYS FOR APPELLEES
Jason L. Carter
7255 Industrial Parkway, Suite D
Mentor, Ohio 44060
David M. Lynch
333 Babbitt Road, Suite 333
Euclid, Ohio 44123
ANITA LASTER MAYS, J.:
{¶1} Plaintiff-appellant Charles Handel (“Handel”) appeals the trial court’s
dismissal of his case in favor of defendants-appellees Manfred E. Rosenbaum, et al.
(“Rosenbaum”). After review of the record, we reverse the trial court’s decision and
remand.
{¶2} Handel and Rosenbaum were scheduled for a final pretrial conference on
June 8, 2015, in their ongoing court case. In the court’s initial scheduling order, dated
February 3, 2014, it was communicated to all parties that failure of plaintiff to appear will
result in the action being dismissed, and failure of defendant to appear would result in the
court holding an ex parte hearing. On June 8, 2015, Handel and his counsel failed to
appear for the final pretrial, resulting in the trial court dismissing the case pursuant to
Civ.R. 41(B)(1), which allows the court to dismiss an action or claim when the “plaintiff
fails to prosecute, or comply with these rules or any court order … after notice to the
plaintiff’s counsel.” Handel filed this timely appeal and assigns two assignments of
error for our review.
I. The trial court erred and abused its discretion by dismissing
appellant’s case with prejudice, in violation of Civ.R. 41(B)(1), and Loc.R.
21.0 III(H).
II. The trial court erred and abused its discretion when it denied
appellant’s motion for relief from judgment, made pursuant to Civ.R. 60(B).
I. Facts
{¶3} According to the trial court’s June 8, 2015 docket entry, the court called
appellant’s case for a final pretrial hearing at 9:00 a.m. Counsel for Rosenbaum was
present, but appellant’s counsel did not appear. The court called appellant counsel’s
office twice, once at 9:05 a.m., and again at 9:08 a.m., but both calls went unanswered.
At 9:19 a.m., the court excused appellees’ counsel and issued a journal entry dismissing
the case for Handel’s failure to prosecute.
{¶4} Appellant’s counsel states that he arrived shortly thereafter and informed the
court that he was in the arraignment room on Cuyahoga C.P. No. CR-15-594527-A, a
different case that was scheduled at 8:30 a.m. Appellant’s counsel did not previously
notify the court that he had a scheduling conflict. The court reasoned that it dismissed
appellant’s case because it had no way of knowing that appellant’s counsel was in the
arraignment room because counsel did not call from the arraignment room to inform the
court that he would be late, he did not file a motion to continue, or request that the pretrial
be set at a later time. The appellant filed a motion for relief of judgment pursuant to
Civ.R. 60(B). The trial court denied the motion stating that appellant’s counsel had
almost seven months advance warning and that he was expected at the pretrial
conference, yet he failed to inform the trial court that he had a scheduling conflict nor did
he send another attorney, and his actions were not excusable neglect or mistake. As a
result of the trial court’s decision, the appellant filed this timely appeal.
II. Case Dismissal
{¶5} Appellate review of a trial court’s dismissal pursuant to Civ.R. 41(B)
involves two steps. Walker v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 91648,
2009-Ohio-2261, ¶ 8. “First, the appellate court must determine if the trial court
provided the plaintiff with sufficient notice prior to the dismissal. Second, the appellate
court must determine whether the dismissal constituted an abuse of discretion.”
{¶6} “A trial court’s decision to dismiss an action pursuant to Civ.R. 41(B)(1) will
not be overturned on appeal absent an abuse of its discretion. An abuse of discretion is
more than a mere error in judgment but connotes an attitude that is unreasonable, arbitrary
or unconscionable.” Id. at ¶ 6.
{¶7} The appellant argues that the trial court erred and abused its discretion by
dismissing appellant’s case with prejudice, in violation of Civ.R. 41(B)(1) and Loc.R.
21.0(III)(H). “Where the plaintiff fails to prosecute, or comply with these rules or any
court order, the court upon motion of a defendant or on its own motion may, after notice
to the plaintiff’s counsel, dismiss an action or claim.” Civ.R. 41(B)(1). Loc.R. 21.0(II)
states, “The purpose of this conference is to effect an amicable settlement. Therefore, all
parties must be present or, with permission of the Court, be available by telephone and
have full settlement authority.” Loc.R. 21.0(III)(H) states,
Any Judge presiding at a pretrial conference or trial shall have authority:
(1) After notice, dismiss an action without prejudice for want of prosecution
upon failure of plaintiff and/or his counsel to appear in person at any
pretrial conference as required by Part III (B) of this Rule.
(2) After notice, order the plaintiff to proceed with the case and decide and
determine all matters ex parte upon failure of the defendant to appear in
person or by counsel at any pretrial conference or trial, as required by Part
III (B) of this Rule.
{¶8} The appellant further argues that in the trial court’s decision to dismiss the
case with prejudice, it abused its discretion where the trial court did not provide adequate
notice that failure to appear at a pretrial conference would result in a dismissal and did
not allow the appellant an opportunity to defend against the dismissal. Youngblood v.
Kindred Healthcare, 8th Dist. Cuyahoga No. 94442, 2010-Ohio-4358, ¶ 11, states
“[b]efore a trial court may dismiss an action for nonappearance at a pretrial conference,
notice of the intended dismissal must be given to plaintiff’s counsel pursuant to
Civ.R. 41(B)(1).”
{¶9} “[F]or purposes of Civ.R. 41(B)(1), counsel has notice of an impending
dismissal with prejudice … when counsel has been informed that dismissal is a
possibility and has had a reasonable opportunity to defend against dismissal.” Id. at ¶ 13,
quoting Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 49,
684 N.E.2d 319
(1997). “The purpose of such notice is to allow a party to explain the circumstances
causing his or her nonappearance and why the case should not be dismissed with
prejudice.”
Youngblood at ¶ 13.
{¶10} The Supreme Court, in Logsdon v. Nichols, 72 Ohio St.3d 124, 128,
1995-Ohio-225,
647 N.E.2d 1361 stated,
Generally, notice is a prerequisite to dismissal for failure to prosecute under
Ohio R. Civ.R. 41(B)(1). It is error for the trial court to dismiss plaintiff’s
case without notice for failure to prosecute when plaintiff and his counsel
fail to appear for trial on the assigned trial date. 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. Notice allows the dismissed party to explain the circumstances
causing his or her nonappearance.
{¶11} It is not disputed that the trial court did give appellant’s counsel notice, as
stated in the February 3, 2014 entry, of an impending dismissal, but the notice did not
specifically state that dismissal would be with prejudice. It is disputed whether the trial
court allowed appellant’s counsel an opportunity to defend. Counsel briefly stated that
he was in the arraignment room on another hearing but did not have an opportunity to
provide proof. Counsel also reasoned that since he had a sentencing on Cuyahoga C.P.
No. CR-15-594033-A, a separate case scheduled at the same time, that the court knew he
would appear. Counsel appeared after his case was completed in the arraignment room
and before appellee’s counsel left the trial judge’s chambers. We find that this brief
explanation did not equate to a reasonable opportunity to defend against dismissal.
{¶12} Additionally, it has been held that “the power of the trial court to prevent
undue delays and to control its calendars must be weighed against the policy which favors
disposition of litigation on the merits.” Willis v. RCA Corp., 12 Ohio App.3d 1, 1,
465
N.E.2d 924 (8th Dist.1983), citing Link v. Wabash R. Co.,
370 U.S. 626,
82 S.Ct. 1386,
8
L.Ed.2d 734 (1962). Therefore, the trial court has a variety of sanctions that can be used
before dismissing a case with prejudice. Dismissal with prejudice for nonappearance is
a drastic remedy that should be used sparingly and in extreme situations. The court has
a wide variety of lesser sanctions available, including (1) a reprimand by the court; (2) a
finding of contempt; (3) an order prohibiting the party or attorney from appearing in that
court without different counsel in the future; and (4) a dismissal without prejudice. Id. at
2. The Supreme Court “has stated that dismissal with prejudice for nonappearance is a
drastic remedy which should be used sparingly and in extreme situations.” Whitaker v.
Yelsky, 8th Dist. Cuyahoga No. 77063,
2000 Ohio App. LEXIS 5899 (Dec. 14, 2000).
{¶13} We find that the trial court’s dismissal with prejudice for nonappearance
was a drastic remedy. Loc.R. 21.0(III)(H)(4) states, “[t]he failure of an attorney to
appear within thirty (30) minutes of a scheduled settlement or pretrial conference may
subject the attorney to sanctions in the amount of Two Hundred Fifty Dollars ($250.00)
unless good cause is shown.” If the court awards sanctions, the attorney is personally
responsible for payment of the sanction. Appellant’s counsel was at most 19 minutes
late. This court recognizes that appellant’s counsel should have notified the court, prior
to the pretrial date or while in arraignment and should not assume that the trial court
knows that [counsel] would appear because [counsel] has another matter pending. This
assumption can be deemed irresponsible. However, appellant counsel’s action does not
rise to the level of an extreme situation. “A failure to consider less drastic alternatives is
an abuse of discretion.” Whitaker at 10. Appellants first assignment of error is
sustained.
III. Motion for Relief From Judgment
{¶14} This court’s determination of the first assignment of error is dispositive of
appellant’s second assignment of error. The trial court’s decision is reversed.
{¶15} The trial court’s judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is ordered that the appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
____________________________________
ANITA LASTER MAYS, JUDGE
MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR
