Sazima v. Chalko

[This opinion has been published in Ohio Official Reports at 

86 Ohio St.3d 151

.]




                      SAZIMA, APPELLANT, v. CHALKO, APPELLEE.
                        [Cite as Sazima v. Chalko, 

1999-Ohio-92

.]
Civil procedure—Trial court abuses its discretion in dismissing an action with
         prejudice for party’s unexplained failure to timely comply with an order for
         a more definite statement, when.
          (No. 98-1510—Submitted May 4, 1999—Decided July 28, 1999.)
APPEAL from the Court of Appeals for Cuyahoga County, Nos. 72769 and 73138.
                                     __________________
         {¶ 1} On April 3, 1995, appellant, Susan Sazima, filed a complaint for legal
malpractice against appellee, Paul P. Chalko.1 On May 15, 1995, appellee filed a
motion for definite statement pursuant to Civ.R. 12(E).2 On June 16, 1995, the trial
court ordered: “Motion of defendant, Paul Chalko, for a definite statement pursuant
to Civ. Rule 12(E), filed 5-15-95, is granted without opposition. Same to be
provided within 30 days or case will be dismissed.” On July 12, 1995, appellant
filed a definite statement.3 On July 27, 1995, appellee filed a stipulation for leave


1. Aside from its prayer for relief, the complaint reads, in its entirety:
         “Now comes the Plaintiff, Susan Sazima, and for her Cause of Action against Defendant,
says that:
         “1. Defendant Paul P. Chalko is a lawyer authorized to practice law within the State of
Ohio and holds himself out as competent to practice before the courts of the State of Ohio;
         “2. Plaintiff retained the services of Defendant in an attorney/client relationship in 1994;
         “3. as a direct and proximate result of the negligence of this Defendant in such
representation and his deviation from recognized standards of practice, this Plaintiff has sustained
severe financial damage in addition to her reputation and to her career.”

2. In his motion, appellee requested the trial court to “order plaintiff to provide a definite statement
indicating when the attorney-client relationship existed and specifying the acts committed by Chalko
which plaintiff claims constitute his deviation from the recognized standards of care.”

3. In her statement, appellant set forth the following as amendments of the paragraphs specified in
her complaint:
         “2. The attorney/client relationship was created between the Plaintiff and the Defendant
on or about December, 1993 or January, 1994.
                                    SUPREME COURT OF OHIO




to respond to the definite statement by September 24, 1995, which the trial court
granted on August 8, 1995. On September 20, 1995, appellant filed a notice of
voluntary dismissal pursuant to Civ.R. 41(A), and on October 17, 1995, the trial
court dismissed the case without prejudice.
         {¶ 2} On September 17, 1996, appellant refiled her complaint.4 On October
28, 1996, appellee again moved the court to order a definite statement. In his
motion, appellee argued that “it was improper for plaintiff to refile the same vague
original complaint,” and moved the court “to sanction plaintiff and her counsel in
this matter.” Appellee claimed he was “entitled to an award of fees associated with
straightening out this matter as well as any other sanction which this court deems
to be appropriate.”
         {¶ 3} On March 5, 1997, the trial court entered its order stating, “Motion
for a more definite statement, filed 10-28-96, is granted. Pltf. to file more definite
statement by 3-14-97.”
         {¶ 4} On April 25, 1997, appellee filed a motion to dismiss appellant’s
complaint as a sanction for failing to comply with the court’s order requiring
appellant to file a more definite statement, along with a motion to compel appellant
to respond to certain outstanding discovery requests.
         {¶ 5} On May 9, 1997, the trial court granted appellee’s motion to compel
discovery, informing appellant that “[s]anctions, including dismissal, may be
imposed for failure to comply within two weeks of the date of this order.”5 On May
27, 1997, appellant responded to appellee’s discovery requests and filed a definite


         “3. Defendant breached those confidences made to him during this attorney/client
relationship with the Plaintiff while testifying in the unrelated case of John R. Masters, et al. v. Paul
Chalko, et al., Cuyahoga County Common Pleas Case No. 2722373.”

4. The refiled complaint is essentially identical to the complaint as originally filed.

5. It appears that the notice regarding the trial court’s May 9, 1997 order compelling discovery was
not mailed until May 19, 1997, and was not received by appellant’s counsel before May 20, 1997.




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                                       January Term, 1999




statement.6
         {¶ 6} On May 30, 1997, the trial court journalized its order dated May 28,


6. The statement amends the complaint as follows:
          “4. That Defendant deviated from the recognized standards of conduct when he failed to
advise Plaintiff that if he represented her on a matter adverse to Dr. Master, he would be in a conflict
of interest;
          “5. That Defendant deviated from the recognized standards of conduct when he failed to
advise Plaintiff that without medical evidence of the incompetency of Dr. Master, any Guardianship
Application would be unsuccessful;
          “6. That Defendant deviated from the recognized standards of conduct when he failed to
advise Plaintiff that she would be unable to obtain medical information about Dr. Master without
Master’s authorization;
          “7. That Defendant deviated from the recognized standards of conduct when he accepted
the filing fee for a Guardianship Application while knowing that such Application would be
unsuccessful;
          “8. That Defendant deviated from the recognized standards of conduct when he failed to
advise Plaintiff prior to the Hearing on her Application that he was unprepared to go forward and
neglected the legal matter she had entrusted to him;
          “9. That Defendant deviated from the recognized standard of conduct when he failed to
inform Plaintiff about the truth of what took place before the Referee at the hearing on the
Application and the Conservatorship;
          “10. That Defendant deviated from the recognized standards of conduct when he failed to
advise Plaintiff that he had withdrawn her Application;
          “11. That Defendant deviated from the recognized standards of conduct when he accepted
certain audio cassettes from Plaintiff with knowledge of their contents and without advising Plaintiff
that such distribution would and could be a basis for criminal and civil actions against her and the
consequences of her possession of the same;
          “12. That Defendant deviated from the recognized standards of conduct when he provided
the aforementioned cassettes to an attorney representing a party adverse to Plaintiff without
Plaintiff’s knowledge or permission when he knew or reasonably should have known that such
actions exposed Plaintiff to potential civil and criminal liability;
          “13. That Defendant deviated from the recognized standards of conduct when he failed to
protect the interest of his client, the Plaintiff;
          “14. That Defendant deviated from the recognized standards of conduct when he breached
those confidences made to him during this attorney/client relationship with the Plaintiff while
testifying in the unrelated case of John R. Masters, et al. v. Paul Chalko, et al., Cuyahoga County
Common Pleas Case No. 272373;
          “15. That Defendant deviated from the recognized standards of conduct when he disclosed
confidential information [from] his client, the Plaintiff;
          “16. That Defendant deviated from the recognized standards of conduct when he allowed
other partie[s’] interests [to] affect his judgment in representing Plaintiff;
          “17. That Defendant deviated from the recognized standards of conduct when he failed to
act competently;
          “18. That Defendant deviated from the recognized standards of conduct when he failed to
keep and maintain files of Plaintiff’s records and papers relating to Defendant’s representation of
Plaintiff.”




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1997, stating that “[d]efendant Paul Chalko’s motion to dismiss, filed 4/25/97, is
granted. Per court’s order filed [March 5, 1997] [plaintiff] to file more definite
statement by 3/14/97, and sanctions were to be imposed for failure to comply.
[Plaintiff] has not offered an explaination [sic] for failure to timely comply.”
        {¶ 7} The court of appeals affirmed the trial court’s dismissal of the action.
In so doing, the court found that appellant “had implied notice that her case was
subject to dismissal with prejudice for failure to timely comply with the order of
the trial court that a more definite statement be filed by March 14, 1997.” The court
also found that because “[p]laintiff-appellant repeatedly ignored orders of the trial
court with little or no justification presented, * * * [t]he trial court was left with
little alternative at that point but to dismiss the action based on plaintiff-appellant’s
unexplained failure to comply with the court’s order in a timely manner.” In
addition, the court of appeals found that although appellant eventually responded
to the orders compelling discovery and for a definite statement, “each [pleading]
was clearly out of rule and therefore not in compliance with the orders of the trial
court. * * * Clearly, plaintiff-appellant’s eleventh hour attempt at perfunctory
compliance with the court’s orders with no showing of good cause for the undue
delay does not constitute actual compliance.”
        {¶ 8} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                                __________________
        Nurenberg, Plevin, Heller & McCarthy Co., L.P.A., Ellen M. McCarthy,
David M. Paris and Kathleen J. St. John, for appellant.
        Gallagher, Sharp, Fulton & Norman, Timothy T. Brick and Timothy P.
Whitford, for appellee.
                                __________________
        ALICE ROBIE RESNICK, J.
        {¶ 9} The sole issue presented is whether the trial court abused its discretion




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                                January Term, 1999




in dismissing the action with prejudice for appellant’s unexplained failure to timely
comply with its March 5, 1997 order for a more definite statement. For the
following reasons, we hold that the trial court abused its discretion.
       {¶ 10} Civ.R. 12(E) provides:
       “If a pleading to which a responsive pleading is permitted is so vague or
ambiguous that a party cannot reasonably be required to frame a responsive
pleading, he may move for a definite statement before interposing his responsive
pleading. The motion shall point out the defects complained of and the details
desired. If the motion is granted and the order of the court is not obeyed within
fourteen days after notice of the order or within such other time as the court may
fix, the court may strike the pleading to which the motion was directed or make
such order as it deems just.”
       {¶ 11} Civ.R. 41(B)(1) provides:
       “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.” (Emphasis added.)
       {¶ 12} In Ohio Furniture Co. v. Mindala (1986), 

22 Ohio St.3d 99, 101

, 22
OBR 133, 135, 

488 N.E.2d 881, 883

, we held that “the notice requirement of Civ.R.
41(B)(1) applies to all dismissals with prejudice. * * * A dismissal on the merits
is a harsh remedy that calls for the due process guarantee of prior notice.”
(Emphasis sic.)
       {¶ 13} The purpose of notice is to give the party who is in jeopardy of
having his or her action or claim dismissed one last chance to comply with the order
or to explain the default. 

Id.,

22 Ohio St.3d at 101

, 22 OBR at 135, 

488 N.E.2d at 883

 (“Notice of intention to dismiss with prejudice gives the non-complaining party
one last chance to obey the court order in full.”); 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 (“The purpose of notice is to ‘provide the




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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.’ ”); Moore v. Emmanuel
Family Training Ctr., Inc. (1985), 

18 Ohio St.3d 64, 69

, 18 OBR 96, 101, 

479 N.E.2d 879, 885

 (“The purpose of this notice requirement is to give a party an
opportunity to obey the order.”).
        {¶ 14} In Quonset Hut, Inc. v. Ford Motor Co. (1997), 

80 Ohio St.3d 46

,

684 N.E.2d 319

, at the syllabus, the court held that the notice requirement of Civ.R.
41(B)(1) is satisfied “when counsel has been informed that dismissal is a possibility
and has had a reasonable opportunity to defend against dismissal.” The gist of this
holding is that “the notice required by Civ.R. 41[B][1] need not be actual but may
be implied when reasonable under the circumstances.” 

80 Ohio St.3d at 49

, 

684 N.E.2d at 322

. As relevant here, the court found that the fact that the defendant had
filed a motion requesting the court to dismiss plaintiff’s claim with prejudice
constituted sufficient implied notice for purposes of Civ.R. 41(B)(1). 

80 Ohio St.3d at 48-49

, 

684 N.E.2d at 322

.
        {¶ 15} As pointed out by the dissenting opinions in that case, the majority’s
decision in Quonset represents a rejection of the proposition that Civ.R. 41(B)(1)
requires the trial court to expressly and unambiguously give actual notice of its
intention to dismiss with prejudice. 

80 Ohio St.3d at 50

, 

684 N.E.2d at 323

(Douglas, J., dissenting); 

80 Ohio St.3d at 51-52

, 

684 N.E.2d at 324

 (Resnick, J.,
dissenting).   Nevertheless, the one inexorable principle that continues to be
recognized in Quonset is that “the very purpose of notice is to provide a party with
an opportunity to explain its default and/or correct it.” 

80 Ohio St.3d at 49

, 

684 N.E.2d at 322

. Thus, the majority in Quonset was quite careful in pointing out that
at the time the trial court granted defendant’s motion to dismiss, neither the plaintiff
nor its counsel had taken any action to comply with the outstanding order, and there
was no reason for the court to expect that one more warning would have prompted
them to do so. 

Id.

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                                      January Term, 1999




         {¶ 16} In the present case, the trial court never gave actual or express notice
to appellant’s counsel that the cause would be dismissed with prejudice for failure
to timely comply with its order of March 5, 1997. It is true, as appellee points out,
that “[i]n the original action the trial court expressly warned appellant of the
possibility of dismissal for failing to file a more definite statement.” However, such
express language is conspicuously omitted from the trial court’s March 5, 1997
order entered in the refiled action, and appellant in fact complied with the court’s
original order of June 16, 1995. This omission becomes even more glaringly
obvious when we consider that the trial court’s order of May 9, 1997, granting
appellee’s motion to compel discovery, contained explicit notice that “[s]anctions,
including dismissal, may be imposed.” (Emphasis added.) Indeed, given the fact
that appellant had once complied with an order for a definite statement, and that the
trial court’s order of March 5, 1997, unlike its other orders, provided no notice of
its intent to dismiss, one could reasonably conclude that the trial court had no
intention of dismissing the action if appellant failed to provide a definite statement
by March 14, 1997.
         {¶ 17} However, pursuant to Quonset, we must find that appellee’s April
25, 1997 motion to dismiss was sufficient to put appellant’s counsel on implied
notice that the case would be dismissed if appellant did not file a definite statement.7
Thus, appellant’s counsel received notice under Civ.R. 41(B)(1) at the time he
became aware that appellee had filed his motion requesting the court to dismiss
appellant’s claim with prejudice.
         {¶ 18} This fact, however, does not determine the issue presented in this



7. Appellee’s October 28, 1996 motion, however, was insufficient for purposes of Civ.R. 41(B)(1)’s
requirement for notice, even under Quonset. In that motion, appellee sought “an award of fees
associated with straightening out this matter as well as any other sanction which this court deems to
be appropriate.” While the term “any other sanction” may imply dismissal, we will not allow an
implication to be piled on top of another implication for purposes of implied notice under Civ.R.
41(B)(1).




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case. As Quonset continued to recognize, “the very purpose of notice is to provide
a party with an opportunity to explain its default and/or correct it.” (Emphasis
added.) 

80 Ohio St.3d at 49

, 

684 N.E.2d at 322

. In other words, the implied notice
furnished by appellee’s motion of April 25, 1997, gave appellant “one last chance
to obey the court order in full.” Mindala, 

22 Ohio St.3d at 101

, 22 OBR at 135,

488 N.E.2d at 883

. Appellant availed herself of this opportunity when she filed her
definite statement on May 27, 1997, in which she cured the defects complained of
and provided the details desired. See fn. 6. Unlike the plaintiff in Quonset,
appellant and her counsel took action to comply with the outstanding order three
days prior to the trial court’s order of dismissal. Stated differently, the trial court
in this case dismissed the action with prejudice three days after appellant’s counsel
had complied with the outstanding order.
       {¶ 19} The situation in this case, therefore, is entirely different from that in
Quonset, where “[t]here was no reason for the trial court to expect that one more
warning would have prompted” plaintiff to comply with the outstanding order. 

80 Ohio St.3d at 49

, 

684 N.E.2d at 322

. To the contrary, the initial implied warning
did in fact prompt appellant to comply with the court’s outstanding order, and this
action took place before the court’s determination to dismiss for noncompliance. If
a trial court were permitted to dismiss an action for plaintiff’s failure to comply
with an outstanding order after notice to the plaintiff’s counsel resulted in
compliance, the entire purpose of providing notice in the first place would be
defeated.
       {¶ 20} This does not mean, as appellee suggests, that “such a lax rule”
would give plaintiffs “a free pass to comply with [court] orders at some undefined
future time and would allow the plaintiff to ignore deadlines which are contained
within the trial court’s order.” It simply means that a trial court is required to give
effect to the purpose behind Civ.R. 41(B)(1)’s requirement for notice. If dismissal
is otherwise warranted under the circumstances, nothing in this opinion precludes




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                                 January Term, 1999




a trial court from dismissing an action for plaintiff’s failure to comply with a court
order after notice is given to plaintiff’s counsel and a reasonable time to comply
has elapsed. However, once plaintiff’s counsel has responded to the notice given
pursuant to Civ.R. 41(B)(1) by complying with the trial court’s outstanding order,
the trial court may not thereafter dismiss the action or claim on the basis of
noncompliance with that order.
        {¶ 21} What appellee really objects to is the fact that Civ.R. 41(B)(1) gives
the plaintiff another opportunity to comply with a court order after the deadline
specified for compliance has run. This is not, however, the time or the place to
consider amending the rule.
        {¶ 22} The court of appeals also found that dismissal of appellant’s action
was warranted because “appellant repeatedly ignored orders of the trial court with
little or no justification presented.” We disagree. In the first place, the trial court’s
decision to dismiss the action was based solely on appellant’s failure to timely file
a definite statement as ordered. The trial court made no finding that any other
conduct or noncompliance on appellant’s part warranted a dismissal with prejudice.
        {¶ 23} Second, the record does not support the conclusion that “appellant
repeatedly ignored orders of the trial court.” The record reveals that appellant failed
to comply with two orders issued by the trial court: (1) the trial court’s order of
March 5, 1997 for a definite statement, and (2) the trial court’s order of May 9,
1997, granting appellee’s motion to compel and ordering appellant to comply
within two weeks. Noncompliance with this second order is tempered by the fact
that appellant filed her response within seven days of receiving notice of the order.
See fn. 5.
        {¶ 24} In considering dismissal under Civ.R. 41(B)(1), a trial court may
properly take into account the entire history of the litigation, including plaintiff’s
dilatory conduct in a previously filed, and voluntarily dismissed, action. See Jones
v. Hartranft (1997), 

78 Ohio St.3d 368, 372

, 

678 N.E.2d 530, 534

; Indus. Risk




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Insurers v. Lorenz Equip. Co. (1994), 

69 Ohio St.3d 576

, 

635 N.E.2d 14

, at the
syllabus. However, “[t]he extremely harsh sanction of dismissal should be reserved
for cases when an attorney’s conduct falls substantially below what is reasonable
under the circumstances evidencing a complete disregard for the judicial system or
the rights of the opposing party.” Moore, 

18 Ohio St.3d at 70

, 18 OBR at 102, 

479 N.E.2d at 885

. In other words, dismissal is reserved for those cases in which “ ‘
“the conduct of a party is so negligent, irresponsible, contumacious or dilatory as
to provide substantial grounds for a dismissal with prejudice for a failure to
prosecute or obey a court order.” ’ ” Quonset, 

80 Ohio St.3d at 48

, 

684 N.E.2d at 321

, quoting Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 

65 Ohio St.3d 621, 632

, 

605 N.E.2d 936, 944

. Absent such extreme circumstances, a court should
first consider lesser sanctions before dismissing a case with prejudice. Jones, 

78 Ohio St.3d at 371-372

, 

678 N.E.2d at 534

. See, also, 9 Wright & Miller, Federal
Practice and Procedure (1995) 340, Section 2369; 5A Wright & Miller (1990),
supra, at 640-641, Section 1379. It is “a basic tenet of Ohio jurisprudence that
cases should be decided on their merits.” Perotti v. Ferguson (1983), 

7 Ohio St.3d 1, 3

, 7 OBR 256, 257, 

454 N.E.2d 951, 952

. “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.” Jones, 

78 Ohio St.3d at 372

,

678 N.E.2d at 534

. See, also, Quonset, 

80 Ohio St.3d at 48

, 

684 N.E.2d at 321

.
       {¶ 25} Even if the trial court had considered appellant’s conduct in failing
to comply with its order of May 9, 1997, in addition to that of March 5, 1997, which
it did not, these instances of noncompliance, either alone or together, hardly rise to
the level of extreme circumstances that would justify a dismissal with prejudice
without first resorting to the imposition of lesser sanctions.
       {¶ 26} Accordingly, we hold that the trial court abused its discretion in
dismissing appellant’s action with prejudice. In light of our holding, we reverse




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                                 January Term, 1999




the judgment of the court of appeals and remand the cause to the common pleas
court for further proceedings.
                                                                  Judgment reversed
                                                               and cause remanded.
        DOUGLAS, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
        MOYER, C.J., and COOK, J., dissent.
                                 __________________
        COOK, J., dissenting.
        {¶ 27} I agree with the court of appeals that Sazima’s failure to comply
with a court order to file a document was sufficiently contumacious to warrant
dismissal of the case: compliance occurred more than thirty days from the date of
notice of the possibility that dismissal could result from the failure to comply.
        {¶ 28} Civ.R. 41(B)(1) provides that where a plaintiff fails to comply with
a court order the action may be dismissed (1) upon motion of the defendant or the
court, and (2) upon notice to the plaintiff. In Quonset Hut, Inc. v. Ford Motor Co.
(1997), 

80 Ohio St.3d 46

, 

684 N.E.2d 319

, we determined that the motion to dismiss
satisfies the element of notice. 

Id. at 48-49

, 

684 N.E.2d at 322

. We held that where
counsel has such notice and is given a reasonable opportunity to respond, Civ.R.
41(B)(1) is satisfied. 

Id.

 at syllabus.
        {¶ 29} In this case, the trial court ordered Sazima to file a more definite
statement within nine days. Forty-two days beyond this deadline, Chalko moved
to dismiss for Sazima’s failure to comply. Under Quonset Hut, Chalko’s motion
constituted the requisite notice of possible dismissal. Thirty-two days after this
notice and seventy-four days after the original due date, Sazima finally filed the
required document.
        {¶ 30} “The decision to dismiss a case pursuant to Civ.R. 41(B)(1) is within
the sound discretion of the trial court.” 

Id. at 47

, 

684 N.E.2d at 321

. “[T]his court
will not hesitate to affirm the dismissal of the action when ‘ “the conduct of a party




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                             SUPREME COURT OF OHIO




is so negligent, irresponsible, contumacious or dilatory as to provide substantial
grounds for a dismissal with prejudice for a failure to prosecute or obey a court
order.” ’ ” 

Id. at 48

, 

684 N.E.2d at 321

, quoting Tokles & Son, Inc. v. Midwestern
Indemn. Co. (1992), 

65 Ohio St.3d 621, 632

, 

605 N.E.2d 936, 944

, quoting
Schreiner v. Karson (1977), 

52 Ohio App.2d 219, 223

, 

6 O.O.3d 237, 239

, 

369 N.E.2d 800, 803

.
       {¶ 31} Here, Sazima disregarded the original court order to file a more
definite statement for more than two months. Chalko’s motion provided her a
“second chance” by putting her on notice of possible dismissal, but she disregarded
this for yet another month. The fact that she ultimately did comply prior to the
order of dismissal is irrelevant to the court’s assessment of when compliance should
have occurred.
       {¶ 32} Dismissal of an action with prejudice is harsh, but “ ‘keeping this
suit alive merely because * * * [Sazima] should not be penalized for the omissions
of [her] own attorney would be visiting the sins of * * * [Sazima’s] lawyer upon *
* * [Chalko].’ ” GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 

47 Ohio St.2d 146, 152

, 

1 O.O.3d 86, 89-90

, 

351 N.E.2d 113, 117

, quoting Link v. Wabash
RR. Co. (1962), 

370 U.S. 626, 634

, 

82 S.Ct. 1386, 1390

, 

8 L.Ed.2d 734, 740, fn. 10

. Where dismissal results from an attorney’s negligence, “ ‘the client’s remedy
is against the attorney in a suit for malpractice. ’ ” 

Id.

       {¶ 33} I do not believe there is reason to find that the trial court abused its
discretion, and I would affirm the judgment of the court of appeals.
       MOYER, C.J., concurs in the foregoing dissenting opinion.
                               __________________




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