Reitano v. Wexner Med. Ctr.

[Cite as Reitano v. Wexner Med. Ctr., 2016-Ohio-4557.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Bridget Reitano et al., :
Plaintiffs-Appellants, :
No. 16AP-24
v. : (Ct. of Cl. No. 2014-00287)
Wexner Medical Center et al., : (ACCELERATED CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on June 23, 2016
On brief: Thomas C. Loepp Law Offices Co., LPA, and
Thomas C. Loepp, for appellants. Argued: Thomas C.
Loepp.
On brief: Michael DeWine, Attorney General, Jeffrey L.
Maloon, and Daniel R. Forsythe, for appellees. Argued:
Jeffrey L. Maloon.
APPEAL from the Court of Claims of Ohio
SADLER, J.
{¶ 1} Plaintiffs-appellants, Bridget and Jim Reitano, appeal from a judgment of
the Court of Claims of Ohio in favor of defendants-appellees, Wexner Medical Center and
Arthur G. James Cancer Hospital, dismissing appellants' complaint with prejudice
pursuant to Civ.R. 37. For the reasons that follow, we affirm the judgment of the Court of
Claims.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The complaint alleges that in 2008, Paul E. Wakely, Jr., M.D., a physician
employed by appellees, misdiagnosed Bridget as suffering from Stage 4 Metastic
No. 16AP-24 2
Melanoma, a terminal condition. Subsequent to the diagnosis, another physician
employed by appellees, Kari L. Kendra, M.D., prescribed repeated chemotherapy
treatments in order to treat the diagnosed condition. Over the next four years, Bridget
underwent 50 chemotherapy treatments, which caused her great physical pain and
mental anguish, as well as serious, permanent injuries to her organs and nervous system.
According to the complaint, appellants later discovered that Bridget had been
misdiagnosed and that she actually suffered from Schwannoma, not Melanoma. The
complaint alleges that chemotherapy is not required to treat Schwannoma.
{¶ 3} On October 1, 2012, appellants filed a complaint against appellees in the
Court of Claims alleging medical negligence, medical negligence-deliberate indifference,
and loss of consortium. On March 22, 2013, appellants dismissed the complaint without
prejudice by filing a notice of voluntary dismissal pursuant to Civ.R. 41(A)(1)(a).
{¶ 4} On March 14, 2014, appellants refiled the complaint in the Court of Claims
pursuant to the savings statute. R.C. 2305.19. The Court of Claims scheduled a pre-trial
conference for August 12 and a trial for September 14-18, 2015. On June 4, 2014, the
Court of Claims issued an order requiring appellants to "furnish defendant with the
names of any expert witnesses and a copy of their reports on or before January 5, 2015."
(Emphasis sic.) On December 19, 2014, appellees filed their first motion to compel,
pursuant to Civ.R. 37(A), seeking an order requiring appellants to "immediately produce
certain medical records as well as a copy of the written or recorded statement given by a
representative of a defendant in possession of Plaintiffs' counsel."
{¶ 5} On January 6, 2015, the Court of Claims granted appellants' motion for a
30-day extension of time to provide expert reports. Pursuant to the order, appellants
were to "furnish defendants with the names of any expert witnesses and a copy of their
reports on or before February 5, 2015." (Emphasis sic.) On January 16, 2015, the Court
of Claims granted appellees' motion to compel and ordered appellants to produce the
following documents within 30 days: "copies of all medical records related to subsequent
treating physicians not employed by defendant, including but not limited to those
responsive to question #11 of defendants' first set of interrogatories; and * * * a copy of the
written or recorded statement given by a representative of defendants."
No. 16AP-24 3
{¶ 6} On February 25, 2015, appellees filed a motion to dismiss the complaint due
to appellants' failure to comply with the January 16, 2015 order. Appellants filed a
memorandum in opposition to the motion to dismiss on March 19, 2015, requesting a
status conference. On April 10, 2015, the Court of Claims conducted a status conference
with the parties, and on that same date, the court issued an order requiring appellants to
produce the following documents on or before April 17, 2015: "written or recorded
statement given by a representative of defendants, as stated in the answer to Defendants'
First Set of Interrogatories * * * Number 13; * * * a document detailing * * * Reitano's
medical providers, doctors and facilities, including any hospital admissions or emergency
room visits, occurring after treatment in defendants' facility; [and] signed authorization
forms for the purpose of obtaining medical records." The Court of Claims did not
expressly rule on the motion to dismiss.
{¶ 7} On July 27, 2015, appellees filed their second motion to compel, pursuant to
Civ.R. 37(A)(2), seeking an order requiring appellants to produce documents responsive
to a number of outstanding discovery requests. Appellants did not oppose the motion.
Following a pre-trial conference, the Court of Claims issued an order on August 18, 2015,
continuing the trial to February 22-26, 2016 and granting appellees' motion to compel.
The Court of Claims ordered appellants to provide dates for opposing counsel to depose
Dr. Scott Plotkin, Dr. John Kuebler, and expert witness Mark Christopher, M.D.1 The
Court of Claims also ordered appellants to provide signed authorization forms for the
purpose of obtaining medical records from Dr. Donald Lawrence, Pickerington Sports
Medicine, Dr. Plotkin, and Dr. Glen Stevens. Lastly, the Court of Claims ordered
appellants to "file expert reports for any and all identified experts that they intend to call."
(Aug. 18, 2015 Entry at 2.) The August 18, 2015 order further provides as follows: "All of
the preceding must be completed in a satisfactory manner on or before October 14, 2015.
Failure to comply with this order will result in dismissal, pursuant to Civ.R. 37."
(Emphasis sic.) (Aug. 18, 2015 Entry at 2.)
{¶ 8} On October 15, 2015, appellees filed a motion to dismiss the complaint due
to appellants' failure to comply with the court's August 18, 2015 order. On November 2,
1 Appellants were given the option to provide opposing counsel with authorization to meet with Dr. Kuebler.
No. 16AP-24 4
2015, appellants filed a memorandum in opposition, arguing that "[d]efendant is the
reason that there has been a delay in discovery" and that "[i]t is imperative that [Drs.]
Kendra and [Ehud] Mendel be deposed before Plaintiffs' expert." (Nov. 2, 2015 Memo. in
Opp. at 3.) Appellees filed a motion for leave to reply instanter on November 5, 2015.
Appellees' attached the affidavit of appellees' counsel, Jeffrey L. Maloon, as an exhibit to
appellees' proposed reply memorandum. In his affidavit, Maloon avers as follows:
3. Since the Court's Entry filed August 18, 2015, I have not
received any communication from Plaintiffs' counsel
attempting to schedule the deposition of Dr. Scott Plotkin
including dates that Dr. Plotkin was available for deposition.
4. Since the Court's Entry filed August 18, 2015, I have not
received any communication from Plaintiffs' counsel
attempting to schedule the deposition of Dr. Mark
Christopher including dates that Dr. Christopher was
available for deposition.
5. I have reviewed my file and previous emails received from
Plaintiffs' counsel, and have been unable to locate any
communication from counsel that he wanted to depose either
Dr. Kendra or Dr. Mendel before scheduling the deposition of
Plaintiffs' expert witness, Dr. Mark Christopher.
6. On August 21, 2015 and as a result of a series of emails, the
parties scheduled the deposition of Dr. Kari Kendra to take
place on Tuesday, September 29, 2015. On Thursday,
September 24, 2015, I received an email from Plaintiffs'
counsel stating that he had not received any information in
regard to scheduling Dr. Kendra's deposition. When reminded
that the deposition was set for September 29, Plaintiffs'
counsel indicated that he had failed to record the deposition
on his calendar. On the following day, September 25, 2015, I
received an email from Plaintiffs' counsel indicating that he
was cancelling Dr. Kendra's deposition due to a scheduling
conflict.
7. Via an email on September 28, 2015, I advised Plaintiffs'
counsel that Dr. Mendel was out of the United States for the
following two weeks and asked counsel to provide dates that
he would be available for the deposition upon Dr. Mendel's
return. I did not receive a response to that email from
Plaintiffs' counsel.
No. 16AP-24 5
8. Since the Court's Entry filed August 18, 2015, I have not
received any communication from Plaintiffs' counsel
attempting to schedule the deposition of Dr. John Kuebler on
advising me that Plaintiff Bridget Reitano had elected to sign
an authorization permitting me to meet with Dr. Kuebler.
9. Since the Court's Entry filed August 18, 2015, I have not
received any expert reports from Plaintiffs' counsel and upon
checking the Court's docket earlier today, there is no
indication that any reports have been filed.
(Maloon Aff. at 1-3.)
{¶ 9} Appellants did not oppose the motion for leave, nor did appellants submit
any evidence contradicting the averments in Maloon's affidavit. On December 14, 2015,
the Court of Claims issued an order granting appellees' motion for leave to reply instanter
and dismissing appellants' complaint with prejudice "for failure to comply with the court's
orders, pursuant to Civ.R. 37." (Dec. 14, 2015 Entry at 7.) Appellants timely appeal to this
court from the judgment of the Court of Claims.
II. ASSIGNMENTS OF ERROR
{¶ 10} Appellants assign the following as error:
[1.] The trial court erred and abused its discretion in
dismissing the underlying lawsuit without giving [appellants]
notice of same.
[2.] The trial court erred and abused its discretion in
punishing [appellants] wherein it was their legal counsel who
was the offender.
III. STANDARD OF REVIEW
{¶ 11} Civ.R. 37(B)(2) provides in relevant part:
If any party * * * fails to obey an order to provide or permit
discovery, including an order made under subdivision (A) of
this rule and Rule 35, the court in which the action is pending
may make such orders in regard to the failure as are just, and
among others the following:
***
No. 16AP-24 6
(c) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing
the action or proceeding.
(Emphasis added.)
{¶ 12} "A trial court has broad discretion when imposing discovery sanctions."
Sullivant Holdings, L.L.C. v. Virgenia, Inc., 10th Dist. No. 13AP-960, 2014-Ohio-2149,
¶ 10, citing Betz v. Penske Truck Leasing Co., L.P., 10th Dist. No. 11AP-982, 2012-Ohio-
3472, ¶ 11. "An appellate court shall review such rulings under an abuse of discretion
standard." Id., citing Betz at ¶ 11, citing Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254(1996), syllabus. " ' "Under this standard of review, we must affirm the trial court's action
absent a showing that the trial court acted unreasonably, unconscionable or
arbitrarily." ' " Id., quoting Watkins v. Holderman, 10th Dist. No. 11AP-491, 2012-Ohio-
1707, ¶ 14, quoting Stark v. Govt. Accounting Solutions, Inc., 10th Dist. No. 08AP-987,
2009-Ohio-5201, ¶ 14.
IV. LEGAL ANALYSIS
A. First Assignment of Error
{¶ 13} In their first assignment of error, appellants argue that the trial court
abused its discretion when it dismissed appellants' complaint, pursuant to Civ.R. 37,
without providing appellants with notice of the court's intention to do so. In making this
argument, appellants concede that the August 18, 2015 order served on appellants'
attorney provides notice of the possibility of dismissal and provides a reasonable
opportunity to defend against dismissal. Appellants contend, however, that personal
notice to the affected party is required before a trial court may dismiss a complaint with
prejudice. We disagree.
{¶ 14} Civ.R. 5(A) provides, in relevant part, that "[e]xcept as otherwise provided
in these rules, every order required by its terms to be served, * * * shall be served upon
each of the parties." (Emphasis added.) Civ.R. 5(B)(1) states: "If a party is represented by
an attorney, service under this rule must be made on the attorney unless the court orders
service on the party." (Emphasis added.) The Court of Claims complied with the Ohio
Civil Rules when it served a copy of the August 18, 2015 order on appellants' attorney. We
see no reason to alter the service requirement for orders issued pursuant to Civ.R. 37.
No. 16AP-24 7
Moreover, this court has previously held that under Civ.R. 5(B), "service upon a party of a
discovery order * * * is complete when the notice is served upon his attorney, and the
party is bound by that service." Rauchenstein v. Kroger Co., 3 Ohio App.3d 178, 180
(10th Dist.1981).
{¶ 15} Appellants contend that this court's prior decision in Huntington Natl.
Bank v. Zeune, 10th Dist. No. 08AP-1020, 2009-Ohio-3482, stands for the proposition
that the affected party is entitled to receive personal notice of the court's intention to
dismiss a case as a discovery sanction pursuant to Civ.R. 37. We do not believe that Zeune
stands for that proposition of law.
{¶ 16} In Zeune, the trial court granted a default judgment against a pro se
defendant due to his failure to appear for a deposition, failure to respond to plaintiff's
motion to compel, and failure to appear for a pre-trial conference. The defendant
subsequently filed a motion for relief from judgment, pursuant to Civ.R. 60(B), arguing
that he did not receive notice of the trial court's intention to grant default judgment. The
trial court denied the defendant's motion and he appealed both the denial of Civ.R. 60(B)
relief and the entry of default judgment.
{¶ 17} On appeal, the defendant argued in his second assignment of error that the
trial court erred in entering a default judgment without first providing him notice of its
intent to do so. This court found that because the plaintiff served the defendant with a
motion to compel discovery or, in the alternative, for default judgment, defendant was on
notice that the trial court might enter a default judgment as a sanction against him. Id. at
¶ 25. This court further found that the defendant had the opportunity to respond to the
motion, but he did not avail himself of that opportunity. Id. Accordingly, this court
overruled his second assignment of error. Id.
{¶ 18} The Zeune case involved a pro se litigant. Consequently, the Zeune case
does not speak to the notice requirements under Civ.R. 37 for parties represented by
counsel. Moreover, in Zeune, this court determined that a pro se litigant receives
adequate notice of the possibility of a default judgment as a sanction for discovery
violations where the party is served with a motion to compel or, alternatively, for default
judgment and has a reasonable opportunity to defend against default. Id. In Zeune, the
trial court never issued an entry warning the affected party of the possibility of default.
No. 16AP-24 8
Here, the Court of Claims' August 18, 2015 entry specifically warned appellants that
"[f]ailure to comply with this order will result in dismissal, pursuant to Civ.R. 37."
(Aug. 18, 2015 Entry at 2.) Thus, the Zeune case does not support appellants' notice
arguments in this case.
{¶ 19} Appellants argue, in the alternative, that the Court of Claims abused its
discretion in dismissing the action with prejudice where the notice of impending dismissal
did not specify that the dismissal would be with prejudice. We disagree.
{¶ 20} Civ.R. 37(B)(2)(c) does not specify whether a dismissal thereunder will be
with prejudice or without. However, Civ.R. 41(B) provides, in relevant part, as follows:
Involuntary dismissal; Effect thereof. (1) Failure to prosecute.
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.
***
(3) Adjudication on the merits; Exception. A dismissal under
division (B) of this rule and any dismissal not provided for in
this rule * * * operates as an adjudication upon the merits
unless the court, in its order for dismissal, otherwise specifies.
(Emphasis added.)
{¶ 21} Based on the plain language of Civ.R. 37(B)(2)(c) and 41(B)(3), notice of the
possibility of dismissal necessarily informs a party of the possibility that the dismissal will
be with prejudice. See Tymachko, D.O. v. Ohio Dept. of Mental Health, 10th Dist. No.
04AP-1285, 2005-Ohio-3454, ¶ 18, citing Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio
St.3d 46, 49 (1997). In rejecting the very argument made by appellants herein, this court
in Tymachko stated: "A party 'has notice of an impending dismissal with prejudice for
failure to comply with a discovery order when counsel has been informed that dismissal is
a possibility and has had a reasonable opportunity to defend against dismissal.' " Id. at
¶ 15, quoting Quonset Hut at 49. See also Carasalina, LLC v. Smith Phillips & Assocs.,
10th Dist. No. 13AP-1027, 2014-Ohio-2423, ¶ 14; Watkins v. Holderman, 10th Dist. No.
11AP-491, 2012-Ohio-1707, ¶ 21. Thus, under the settled case law, appellants' argument is
without merit.
No. 16AP-24 9
{¶ 22} For the foregoing reasons, appellants' first assignment of error is overruled.
B. Second Assignment of Error
{¶ 23} In appellants' second assignment of error, appellants argue that the trial
court abused its discretion by dismissing the action with prejudice due to the misconduct
of their attorney. Appellants first contend that the failure of the Court of Claims to
conduct an evidentiary hearing on the motion to dismiss deprived appellants of an
opportunity to dispute the averments in Maloon's affidavit. We disagree.
{¶ 24} L.C.C.R. 4 governs the motions practice in the Court of Claims. The local
rule provides in relevant part:
(C) Submission and hearing of motions. Unless otherwise
ordered by the court, motions shall be determined without
oral argument.
The movant shall serve and file with his motion a brief written
statement of reasons in support of the motion and the
authorities upon which he relies. If the motion requires the
consideration of facts not appearing of record, the movant
shall also serve and file copies of all the evidence which
supports his motion.
Each party opposing the motion shall serve and file, within
fourteen days after service upon him of movant's motion, a
brief written statement of reasons in opposition to the motion
and the authorities upon which he relies. If the motion
requires the consideration of facts not appearing of record, he
shall also serve and file copies of all evidence in opposition to
the motion. Failure to file a written statement in opposition
to the motion may be cause for the court to grant the motion
as filed. Reply briefs or additional briefs may be filed only
upon a showing of the necessity therefore and with leave of
court.
{¶ 25} Here, appellants filed a memorandum in opposition to appellees' motion to
dismiss wherein appellants' counsel alleged facts not appearing on the record, including a
claim that the parties had reached an agreement regarding some of the disputed
discovery. Yet, appellants did not support these factual allegations with evidence as
required by L.C.C.R. 4(C). When appellees filed their motion for leave to reply, however,
appellees submitted Maloon's affidavit as evidentiary support for the proposed reply
No. 16AP-24 10
memorandum. Appellants did not oppose the motion for leave. Nor did they submit any
evidence contradicting Maloon's affidavit in the four-week period between the service of
the motion for leave and the Court of Claims' ruling on the motion to dismiss. Appellants
never requested either an oral hearing or evidentiary hearing on the motion to dismiss.
{¶ 26} The record shows that the Court of Claims acted in accordance with its local
rules when it decided appellees' motion to dismiss. The Court of Claims based its ruling
on the record, the parties' written memoranda, and the evidence properly submitted
therewith. On this record, we cannot say that the trial court unfairly deprived appellants
of the opportunity to challenge Maloon's affidavit. Accordingly, we find that the Court of
Claims did not abuse its discretion when it relied on the unchallenged averments in
Maloon's affidavit in ruling on the motion to dismiss.
{¶ 27} Appellants next contend that the Court of Claims abused its discretion by
dismissing their case when sanctions against their attorney would have been more
appropriate. We disagree.
{¶ 28} When considering whether dismissal with prejudice under Civ.R. 41(B)(1) is
appropriate, courts are guided by the general principle that " 'disposition of cases on their
merits is favored in the law.' " Whipps v. Ryan, 10th Dist. No. 14AP-67, 2014-Ohio-5302,
¶ 28, quoting Jones v. Hartranft, 78 Ohio St.3d 368, 371 (1997). The Supreme Court of
Ohio has found that factors for a court to consider 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 discovery until threatened with dismissal, and other evidence that a plaintiff is
deliberately proceeding in dilatory fashion. Hartranft at 372, citing Link v. Wabash RR.
Co., 370 U.S. 626, 633-35 (1962); Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio
St.3d 576 (1994), syllabus. Thus, " '[d]espite the heightened scrutiny to which dismissals
with prejudice are subject,' the action of the trial court will be affirmed when '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.' "
(Internal citation omitted.) Whipps at ¶ 28, quoting Quonset Hut at 48. See also Geico
Cas. Ins. Co. v. Durant-Baker, 10th Dist. No. 13AP-573, 2014-Ohio-1530, ¶ 7.
{¶ 29} The Court of Claims' decision details "a long history of discovery disputes"
that resulted in two separate orders compelling discovery and two motions to dismiss the
No. 16AP-24 11
action due to appellants' failure to obey discovery orders. (Dec. 14, 2015 Decision at 1.)
The Court of Claims found that appellants "have displayed a pattern of non-compliance
with court orders." (Dec. 14, 2015 Decision at 5.) The record supports a finding that
appellants did not provide certain discovery until they were ordered to do so and that
appellants subsequently failed to produce court-ordered discovery even though the Court
of Claims had threatened appellants with dismissal. The circumstances described in the
Court of Claims' decision and the facts set forth in Maloon's undisputed affidavit provide
substantial grounds for a dismissal with prejudice due to appellants' failure to obey the
August 18, 2015 order.
{¶ 30} Nevertheless, appellants argue that they are completely blameless with
regard to the discovery abuses of their attorney. They claim that their trial attorney did
not provide them with "notice of the various motions to compel discovery, to dismiss the
case, or the admonitions of the trial judge." (Appellants' Brief at 28.) Appellants
maintain that under the circumstances, a monetary sanction against their "inept, ill-
prepared, dishonest attorney" would have been more appropriate. (Appellants' Brief at
23.)
{¶ 31} First, there is no evidence in the record to support appellants' claim that
their trial counsel failed to inform them of the various motions and admonition of the
judge or that they were unaware of the negligence and/or misconduct of their attorney.
Second, even if we were to accept appellants' representation that they were unaware of
their attorney's misconduct in this case, the record does not support their claim that the
trial court acted unreasonably in dismissing their case, rather than sanctioning their
attorney. The Court of Claims' decision provides, in relevant part, as follows:
Plaintiffs agreed to provide dates for the depositions of Drs.
Plotkin and Kuebler, and it was only in consideration of said
agreement that the court issued the order compelling plaintiff
to facilitate the depositions. Plaintiffs did not object to the
depositions during the conference on August 12, 2015 and
first raised the argument that the two physicians were treating
physicians only and not retained as experts nearly three
months after the conference call and almost three weeks after
the agreed upon deadline. Had plaintiffs informed
defendants of their position regarding the depositions of Drs.
Plotkin and Kuebler, defendants would have had enough
No. 16AP-24 12
time prior to trial to subpoena them. Even so, defendants
never received a signed authorization form allowing them to
meet with Dr. Kuebler. Regarding the deposition of plaintiffs'
expert, Dr. Christopher, during the August 12, 2015 pretrial
conference, plaintiffs did not indicate their desire to first
depose Drs. Kendra and Mendel prior to Dr. Christopher.
And, they have provided no evidence of any communication
between the parties from which the court can infer such an
agreement had been made. Again, had defendants or the
court been made aware of plaintiffs intentions, the issue
would have been addressed in a timely manner, allowing
defendants the opportunity to depose Dr. Christopher with
enough time to prepare for trial. However, due to the lack of
communication, confusion, or evasiveness, defendants were
left wondering why plaintiffs had failed to comply with the
court order and had no reason to believe they needed to take
alternative methods to arrange for Dr. Christopher's
deposition. Finally, the court finds that plaintiffs have not
filed any expert reports other than Dr. Christopher's, which is
unsigned. * * * Plaintiffs' unwillingness to file the reports of
the other experts identified during the pretrial in a timely
fashion has resulted in a situation where defendants do not
have enough time to identify rebuttal experts and prepare for
trial based on their findings.
(Emphasis added.) (Dec. 14, 2015 Decision at 5-7.)
{¶ 32} The Court of Claims found that appellants' "pattern of non-compliance with
court orders" thwarted the court's efforts to regulate discovery and unfairly prejudiced
appellees' trial preparation. (Dec. 14, 2015 Decision at 5.) Although the Court of Claims
could have awarded monetary sanctions against appellants' attorney in lieu of dismissal,
such a sanction would not have cured the prejudice to appellees identified in the decision.
A second continuance of trial in this re-filed case would have served to reward appellants
for their continued disobedience of the court's order.
{¶ 33} The Court of Claims' August 18, 2015 order expressly informed appellants
that "[f]ailure to comply with this order will result in dismissal, pursuant to Civ.R. 37."
(Aug. 18, 2015 Entry at 2.) Yet, appellants failed to comply with the court order and the
Court of Claims dismissed the case with prejudice. Considering all the above, the Court of
Claims did not act arbitrarily, unreasonably, or unconscionably in dismissing appellants'
action with prejudice. Accordingly, we hold that the Court of Claims did not abuse its
No. 16AP-24 13
discretion by dismissing the action with prejudice. Appellants' second assignment of
error is overruled.
V. CONCLUSION
{¶ 34} Having overruled appellants' two assignments of error, we affirm the
judgment of the Court of Claims of Ohio.
Judgment affirmed.
LUPER SCHUSTER, J., concurs.
TYACK, J., dissents.
TYACK, J., dissenting.
{¶ 35} Because I believe the trial court's decision to dismiss this case with
prejudice unfairly punishes the Reitano family, I respectfully dissent.
{¶ 36} Nothing in the record before us indicates that the Reitano family knew how
badly their counsel in the Court of Claims of Ohio was performing. Although the majority
opinion refers repeatedly to "they" and "them," in each case it was actually their lawyer
who was displaying a pattern of non-compliance with court orders. Now the Reitanos
have no remedy but to pursue a legal malpractice suit against their former lawyer. That
lawyer lost his license to practice law because he was not paying his child support, which
implies that he personally has no deep pockets. We do not know if he carried legal
malpractice insurance, but that seems somewhat unlikely given what we know about his
handling of his personal finances and his failure to follow court orders.
{¶ 37} I have no problem with the trial court's ordering the dismissal of the
lawsuit, given the lawyer's failure to do his job. I have a serious problem with making it
virtually impossible for the Reitanos to prove their case and recover for their injuries by
entering a dismissal entry which is with prejudice.
{¶ 38} Again, I respectfully dissent.
_____________________________