State Farm Mutual Automobile Insurance v. Peller ( 1989 )

I respectfully dissent. The majority mistakenly argues according to the record on appeal the parties had either actual or constructive notice of the trial date and, therefore, the trial court did not abuse its discretion in proceeding exparte.

It is an absolute necessity that in order to sanction a party for failure to obey a court order, such as an order scheduling date of trial, the order must be journalized. Reese v. Proppe (1981), 3 Ohio App. 3d 103, 105-106, 3 OBR 118, 119-122,443 N.E.2d 992, 995-997; Rose Park Nursing Home v. Sneed (Mar. 16, 1989), Cuyahoga App. No. 56041, unreported, 1989 WL 24954;Robertson v. Robertson (Mar. 9, 1989), Cuyahoga App. No. 56089, unreported, 1989 WL 21396; Dupal v. Daedlow (1989), 61 Ohio App. 3d 46, 572 N.E.2d 147; Sub Trenching Co. v. NidaConstruction (Dec. 11, 1986), Cuyahoga App. No. 51361, unreported, 1986 WL 14498.

The majority's reliance on Ries Flooring Co. v. DilenoConstr. Co. (1977), 53 Ohio App. 2d 255, 7 O.O.3d 320,373 N.E.2d 1266, is totally misplaced. The Ries court held notice by publication of trial date was insufficient when the names and addresses of the parties are part of the court record and affirmed the trial court's vacation of default judgment. InRies, supra, there is no indication any court orders setting the date for trial were journalized and the issue of whether the trial court could bind parties to orders not journalized was not before the court of appeals. Reese v. Proppe, supra, which was decided subsequent toRies, supra, is entirely consistent with Ries and stands for the proposition a party is not bound by a trial court order not journalized since a court only speaks through its journal.Ries is concerned only with due process notice considerations. It should be noted in Reese, supra, the parties had actual notice of the court order since the trial court informed counsel by written correspondence of the court's unjournalized order. Actual notice in Reese was not sufficient because the court order was not journalized.

Furthermore, the majority's reliance on Metcalf v. Ohio StateUniv. Hosp. (1981), 2 Ohio App. 3d 166, 2 OBR 182,441 N.E.2d 299, is also totally unpersuasive. In Metcalf, there was absolutely no indication in the record on appeal that any court orders were or were not journalized. Therefore, the issue before the court in Metcalf, like the issue before the court in Ries, was one of notice necessary to satisfy due process and that issue is totally distinct from the issue presented in Reese and the case sub judice which concerns whether the parties can be bound by court orders not journalized.

The majority's reliance on Ohio Valley Radiology Assoc., Inc.v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St. 3d 118, 28 OBR 216, 502 N.E.2d 599, is also misplaced because again, the issue of whether there was a journalized court order setting the date for trial was not before the court in Ohio Valley. Ohio Valley concerned the issue of what constituted adequate notice and is, therefore, similar to Ries and Metcalf and totally dissimilar toReese and the case sub judice. See this court's discussion ofOhio Valley appearing in Fendrich v. Fendrich (Mar. 9, 1989), Cuyahoga App. No. 54840, unreported, 1989 WL 21431. Despite the majority's reliance on Ohio Valley the fact remains the majority has failed to cite any cases where the Ohio Supreme Court has decided the issue of whether a trial date must be journalized before a trial court can sanction a party for failure to appear. The case sub judice presents an excellent opportunity for the Supreme Court to settle this issue.

Again, for the same reason, the majority's reliance onMaintenance Unlimited, Inc. v. Ozanne Constr. Co. (Mar. 23, 1989), Cuyahoga App. No. 55958, unreported, 1989 WL 27767, is misplaced. Again, the issue of the trial court's journalization of the trial date was not before the court in MaintenanceUnlimited.

In sum, there are no cases which have come to this court's attention, and certainly no cases set forth in the majority's opinion, which contravene the age old rule a court can only speak through its journal and the long-standing practice of this court of appeals to refuse to allow a trial court to sanction a party for failure to obey a court order which has not been journalized. Simply stated, there is no basis in law for the majority's decision to affirm the case sub judice and to overrule Robertson, supra. Therefore, I would reverse and remand this case for a new trial on the complaint.