Jones v. Hartranft

[This opinion has been published in Ohio Official Reports at 

78 Ohio St.3d 368

.]




              JONES, APPELLEE, V. HARTRANFT ET AL., APPELLANTS.
                    [Cite as Jones v. Hartranft, 

1997-Ohio-203

.]
Civil procedure—Trial court does not abuse its discretion in dismissing a claim
        with prejudice under Civ.R. 41(B)(1), when.
      (No. 95-2497—Submitted January 22, 1997—Decided May 14, 1997.)
   APPEAL from the Court of Appeals for Franklin County, No. 95APE02-139.
                                  __________________
A trial court does not abuse its discretion in dismissing a claim           with prejudice
        under Civ.R.41(B)(1) when a plaintiff, who has had an objectively
        reasonable amount of time for discovery, fails to proceed upon a
        scheduled trial date for want of evidence of defendant’s liability.
                                  __________________
        {¶ 1} In May 1991, appellee, Emmanuel Jones, filed a complaint in the
Court of Common Pleas of Franklin County alleging injuries beginning in 1977 as
the result of the negligence of appellants, Thomas H. Hartranft, M.D., Mount
Carmel Health, and Mount Carmel Medical Clinic. Jones dismissed the complaint
without prejudice on October 21, 1992.
        {¶ 2} Jones refiled the complaint one year later. On the day he refiled, the
clerk of court prepared a case schedule, setting a trial date for two years thence.
Some two weeks later, however, the court filed a case scheduling order which reset
the trial date for one year from the complaint refiling date.
        {¶ 3} Thereafter, during discovery, appellants served interrogatories, to
which Jones failed to respond despite several written requests from appellants.
Eventually, the trial court granted appellants’ motion to compel Jones to answer the
interrogatories, and, as a result, Jones finally answered the interrogatories some five
months after they had been served.
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       {¶ 4} In those answers, Jones asserted that Dr. Hartranft had performed an
unnecessary colostomy on him. With regard to experts supporting his claim, Jones
answered that he intended to call Ian C. Lavery, M.D., the surgeon who had
performed corrective surgery, and “additional [expert] witnesses to be identified
sufficiently prior to trial to allow for discovery depositions to be taken.”   Jones
stated that he believed Dr. Lavery was a “general surgeon” and that he expected to
retain another expert “qualified to testify as to the standard of care in surgery as
performed by Dr. Hartranft.”
       {¶ 5} According to the case scheduling order, the parties were to make a
supplemental disclosure of witnesses by May 5, 1994. In June and again in July,
according to appellants, they requested the names of Jones’s additional witnesses
in order to take their depositions. Jones neither responded to appellants’ requests
nor filed a disclosure of witnesses as ordered by the court.
       {¶ 6} Two weeks prior to the October 1994 trial, Hartranft moved for a
continuance and proposed several dates that he would be available for trial. Jones
did not respond to the motion. The court rescheduled the trial for Monday,
December 12, 1994, the first of the dates proposed by Hartranft.
       {¶ 7} On the Friday before the start of trial, while the judge assigned to the
case was away, Jones moved to reschedule trial “no sooner than March 20, 1995,”
indicating that such date “would be within the standard two year limit for trying
medical malpractice cases.” Jones stated in his motion that his “counsel, because of
the lapse of many years, has had difficulty arranging testimony of necessary expert
witnesses in this case and is unable to have the case prepared for trial as currently
scheduled.” Jones acknowledged that if the court denied a continuance, it “would
be in a position to dismiss the case with, or without, prejudice.”
       {¶ 8} On the morning scheduled for trial, the court held an off-record
discussion with counsel and then conducted a hearing for the purpose of recording
portions of that discussion. Jones’s counsel stated that he was prepared to discuss




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the continuance but was not prepared to go forward with the trial. Jones was not
present, and his counsel had neither prepared nor subpoenaed any witnesses.
Counsel stated that he had voluntarily dismissed Jones’s first complaint against
appellants because of the complexity of the issues, because of the lengthy time lapse
between the date of surgery and the time of suit, and because he was “not prepared
to go forward * * * and to respond adequately to discovery” during the pendency
of the first complaint. Counsel conceded that, after refiling the complaint, he had
“intermittent contact” with Dr. Lavery and concluded that Dr. Lavery might not be
“prepared to testify as to the standard of care as an expert” and that he would need
to secure an additional expert witness. Counsel acknowledged that he had failed to
respond to inquiries from appellants’ counsel on several occasions, and that all
counsel were aware that Jones could not proceed to trial without an expert witness.
       {¶ 9} Jones’s counsel acknowledged that he had intended to respond to
appellants’ motion for a continuance of the October 1994 trial date in order to
request a 1995 trial date, but the court set the December 1994 date before he
responded. He admitted that he did not then move for a further continuance, even
though he knew he was not prepared to go to trial without an expert witness, and
conceded, “That’s neglect on my part for which there is probably no adequate
excuse.”
       {¶ 10} The court observed that Jones’s initial complaint had been pending
for over one year and that Jones had moved to voluntarily dismiss that complaint
because he did not have an expert witness. The refiled case had been pending for
over thirteen months when Jones moved for a continuance. The court noted that
Jones was not asking for a continuance because his expert witness was not available
to testify but because he did not have an expert witness. The court also noted that
appellants had invested a significant amount of money in preparing the case for trial
as scheduled and that the court had instructed the parties, “If you could enter into




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some type of agreement * * * with respect to this matter, I would go along with it
within reason.” The parties could not reach an agreement.
         {¶ 11} At the conclusion of the hearing, the court denied Jones’s motion for
a continuance. The court stated that it was generally liberal upon a party’s first
request for a continuance made with advance notice but added, “The day of trial is
not, to me, in advance.” Jones’s counsel reiterated that he was “not prepared to go
forward with any evidence,” whereupon the court announced it was dismissing the
action “under Rule 41 for failure to prosecute.” The court later entered an order
dismissing the action “[a]s a result of the plaintiff’s failure to proceed.”1
         {¶ 12} The Tenth District Court of Appeals reversed and remanded for
further proceedings, ruling that “a trial court abuses its discretion in dismissing a
case with prejudice under Civ.R. 41(B)(1) if the circumstances precipitating the
termination were not extreme or if other less drastic alternatives were not
considered.” The appellate court concluded that the trial court had abused its
discretion in dismissing Jones’s case with prejudice because (1) the court had failed
to follow a local rule in initially amending the case schedule, (2) it had permitted
appellants to determine whether Jones’s motion for continuance would be granted,
and (3) it had not considered a lesser sanction for counsel’s “dilatory” trial
preparations.




1. Jones moved the court to “reconsider and vacate its dismissal for want of prosecution in this case
and to grant a continuance as previously requested or in the alternative to specifically dismiss the
case without prejudice.” Counsel emphasized by affidavit attached to the motion that the court had
deferred to appellants in denying a continuance and that appellants had not been willing to agree to
a continuance under any circumstances.
         Jones’s motion was not properly before the trial court. It is not styled as a Civ.R. 60(B)
motion, nor does it appear to satisfy any of the requirements of that rule. The Civil Rules do not
recognize a motion to reconsider. The trial court neither requested nor permitted the parties to
submit additional evidence regarding a continuance after it announced at the hearing its decision to
dismiss. Even if Jones’s motion were properly before the court, the motion and affidavit do little
more than attempt a stronger rendition of discussions recorded at the hearing.




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                                    January Term, 1997




        {¶ 13} This cause is now before the court pursuant to the allowance of a
discretionary appeal.
                                   __________________
        Randall W. Pees, for appellee.
        Earl, Warburton, Adams & Davis, Ted L. Earl and Christopher R. Walsh,
for appellants.
                                   __________________
        COOK, J.
        {¶ 14} With this case we hold that a trial court does not abuse its discretion
in dismissing a claim with prejudice under Civ.R. 41(B)(1) when a plaintiff, who
has had an objectively reasonable amount of time for discovery, fails to proceed
upon a scheduled trial date for want of evidence of defendant’s liability.
                        DISMISSAL UNDER CIV. R. 41(B)(1)
        {¶ 15} Civ.R. 41(B)(1) provides that “[w]here the plaintiff fails to
prosecute, * * * 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.”2 A dismissal for
failure to prosecute “operates as an adjudication upon the merits unless the court,
in its order for dismissal, otherwise specifies.” Civ.R. 41(B)(3).
        {¶ 16} The decision to dismiss a complaint for failure to prosecute is within
the sound discretion of the trial court, and an appellate court’s review of such a
dismissal is confined solely to the question of whether the trial court abused its
discretion. Pembaur v. Leis (1982), 

1 Ohio St.3d 89, 91

, 1 OBR 125, 126-127, 

437 N.E.2d 1199, 1201

. The term “abuse of discretion” as it applies to a dismissal with
prejudice for lack of prosecution “implies an unreasonable, arbitrary or
unconscionable attitude on the part of the court in granting such motion.” Id.


2. Jones did not argue before the lower courts that he was not provided the required notice under
Civ.R. 41(B)(1).




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       {¶ 17} One of the considerations militating against dismissal with prejudice
is the tenet that disposition of cases on their merits is favored in the law. See Tokles
& Son, Inc. v. Midwestern Indemn. Co. (1992), 

65 Ohio St.3d 621, 632

, 

605 N.E.2d 936, 944

. That precept has spawned decisions that curtail a trial court’s discretion
to dismiss. See Toney v. Berkemer (1983), 

6 Ohio St.3d 455

, 6 OBR 496, 

453 N.E.2d 700

, syllabus (court should grant default judgment for failing to respond to
discovery requests only where there is evidence of willfulness or bad faith on the
part of responding party); Schreiner v Karson (1977), 

52 Ohio App.2d 219

, 

6 O.O.3d 237

, 

369 N.E.2d 800

, paragraph two of syllabus (court should consider
lesser sanctions before dismissing a case unless negligent, irresponsible,
contumacious, or dilatory conduct supports dismissal with prejudice); Willis v RCA
Corp. (1983), 

12 Ohio App.3d 1, 2

, 12 OBR 57, 59, 

465 N.E.2d 924, 926

 (dismissal
with prejudice for nonappearance at a pretrial conference should be used sparingly
and only in extreme situations). Thus, although reviewing courts espouse an
ordinary “abuse of discretion” standard of review for dismissals with prejudice, that
standard is actually heightened when reviewing decisions that forever deny a
plaintiff a review of a claim’s merits.
       {¶ 18} Proper factors for consideration in a Civ.R. 41(B)(1) dismissal with
prejudice include the drawn-out history of the litigation, including a plaintiff’s
failure to respond to interrogatories until threatened with dismissal, and other
evidence that a plaintiff is deliberately proceeding in dilatory fashion or has done
so in a previously filed, and voluntarily dismissed, action. See Link v. Wabash RR.
Co. (1962), 

370 U.S. 626, 633-635

, 

82 S.Ct 1386, 1390-1391

, 

8 L.Ed.2d 734

, 740-
741; Indus. Risk Insurers v. Lorenz Equip. Co. (1994), 

69 Ohio St.3d 576

, 

635 N.E.2d 14

, syllabus.
       {¶ 19} Here, Jones’s first complaint had been pending for nearly a year and
a half before he voluntarily dismissed it for lack of an expert witness. After the
refiled case was pending for over a year, Jones still had no legal support for his




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claim that Hartranft breached the standard of care some seventeen years earlier. As
the trial court observed at the hearing, Jones was not asking for a continuance
because his expert witness was not available to testify but because he did not have
an expert witness. Jones astutely does not argue that the trial court, on that basis,
abused its discretion in not granting his motion for a continuance. Rather, he argues
that the dismissal ought to have been without prejudice. Given the history of the
case, however, the trial court could reasonably have concluded that Jones simply
could not establish within a reasonable time a prima facie case of malpractice.
       {¶ 20} The trial court did not abuse its discretion by its dismissal with
prejudice. Jones’s dilatory conduct in responding to discovery may not have met
the heightened discretion standard for dismissals with prejudice. His failure to
proceed on the scheduled trial date due to an admitted lack of liability evidence,
however, sufficed on its own to meet the heightened standard. Neither a monetary
sanction nor a further continuance could have addressed the problem of a dearth of
evidence of liability on the scheduled trial date. Jones’s dilatory conduct during
discovery provided additional but unnecessary support for that decision. Orderly
and timely administration of justice requires that courts exercise the power to
dismiss cases where appropriate.
        OTHER ISSUES ADDRESSED BY THE COURT OF APPEALS
       {¶ 21} The decision of the trial court to place this case on a twelve-month,
instead of a twenty-four-month, case track is inconsequential to the issue whether
the court abused its discretion in ultimately dismissing for failure to prosecute.
Loc.R. 45.01 of the Court of Common Pleas of Franklin County, General Division,
sets forth a procedure to be followed by a party wishing to modify an assigned trial
date. Jones had over a year from the time that the trial date was set in this case in
which to move to reschedule. He did not.
       {¶ 22} Similarly, Jones’s claim and the appellate court’s finding that the
trial court permitted the defendants to determine his motion for continuance are not




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supported by the record. The record as a whole establishes that the trial court made
its own decision to dismiss with prejudice unless the parties could arrive at “some
type of agreement,” in which event the court “would go along with it within
reason.”
                                 CONCLUSION
       {¶ 23} Because the trial court did not abuse its discretion in dismissing with
prejudice, we reverse the court of appeals and reinstate the trial court’s order
dismissing the case pursuant to Civ.R. 41(B) for failure to prosecute.
                                                                Judgment reversed.
       MOYER, C.J., PFEIFER and LUNDBERG STRATTON, JJ., concur.
       DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.
                              __________________




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