Drescher v. Summers

Mario Drescher, appellant pro se, seeks reversal of an order dismissing his lawsuit against appellee, William L. Summers. We reverse and remand for proceedings consistent with this opinion.

Appellant, currently a prisoner at the Southern Ohio Correctional Facility in Lucasville, Ohio, filed a complaint for damages pro se on December 14, 1982 against his former attorney, appellee, alleging a breach of contract. Appellee answered and counterclaimed. Thereafter, both sides engaged in discovery, and numerous motions concerning discovery were filed. Appellant sought an order from the trial court on several occasions to be transported for pretrial meetings at the courthouse, and each time his requests were denied. Appellant survived a motion for summary judgment of appellee.

Trial was set for June 10, 1985. Appellant moved to be transported to the courthouse to attend the trial, but the trial court denied the motion in a May 22, 1985 order.¹

Proceedings were had by the trial court on June 10, 1985, attended by the appellee. Appellee moved for dismissal on the ground that appellant, proceeding pro se, was not present. The court responded in open court to the motion as follows:

"The Court has declined to continue this case because the Defendant [sic] has had ample notice of this trial and trial date. Defendant [sic] does have the ability to secure Legal Aid counsel. He had counsel on his own. Also had the opportunity to make arrangements to preserve his own testimony either by way of written deposition or through a videotaping. None of those kinds of entries [was] made.

"* * *

"The motion for dismissal will be granted without prejudice, so the Defendant [sic] may refile if he so desires."

The decision to dismiss appellant's case was journalized on June 11, 1985, and this timely appeal followed.

I Appellant's first assignment of error is that:

"Assignment of Error No. 1.

"The trial court's failure to furnish appellant with the notice mandated by Civil Rule 41(B)(1) before dismissing the case, for failure to prosecute constitutes reversible error."

Appellant argues the trial court was prohibited by Civ. R. 41(B)(1) from dismissing his case without first notifying him of the court's intention to dismiss.

Civ. R. 41(B)(1) provides:

"(B) 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, afternotice to the plaintiff's counsel, dismiss an action or claim." (Emphasis added.)

The Ohio Supreme Court has made clear that the notice requirement of Civ. R. 41(B)(1) is an absolute prerequisite to dismissal for failure to prosecute. Svoboda v. Brunswick (1983),6 Ohio St.3d 348, 6 OBR 403, 453 N.E.2d 648; Perotti v.Ferguson (1983), 7 Ohio St.3d 1, 7 OBR 256, 454 N.E.2d 951. Such is the rule even where the dismissal is without prejudice, as in this case. Svoboda, supra; Moore v. Emmanuel FamilyTraining Ctr. (1985), 18 Ohio St.3d 64, 18 OBR 96,479 N.E.2d 879.

Appellant is thus correct in asserting the trial court erred by failing to notify him prior to dismissal. Had the requisite notice been sent, it is conceivable appellant would have moved to take steps such as those the trial court suggested on the record at the June 10, 1985 hearing, supra.

The first assignment of error is sustained.

II Appellant's second and third assignments of error may be taken together. They are:

"Assignment of Error No. 2.

"The trial court's dismissal of appellant's case for failure to appear at trial constitutes an abuse of discretion which violated appellant's due process rights of access to the courts in contravention of the Fourteenth Amendment of the United States Constitution and Article I, Section 16 of the Ohio Constitution.

"Assignment of Error No. 3.

"Whether the trial court abused its' [sic] discretion in dismissing appellant's complaint when he took every precaution prior to pre-trial and trial to guard against dismissal due to his incarceration."

Appellant argues here that, aside from the failure of notice to appellant, the trial court abused its discretion in dismissing the case for failure to prosecute.

The record reflects the trial court was, with the exception of its failure to notify appellant under Civ. R. 41(B)(1), very careful to insure that appellant's right to pursue the lawsuit was respected. This court cannot, however, address whether or not the dismissal would have been an abuse of discretion had the trial court given appellant notice that dismissal was intended, since the propriety of dismissal after notice would depend on the circumstances at that time, i.e., on appellant's response, if any, to the notice.

Judgment reversed and cause remanded.

PARRINO, C.J., concurs.

JACKSON, J., concurs separately.

¹ Appellant filed a "Complaint in Prohibition" in this court on June 6, 1985 against the trial court, "to prevent the [trial court] * * * from refusing to issue an Order to the Clerk of Court * * * to convey the relator on or before June 10, 1985, to said Court for the purpose of a jury trial which has been scheduled for then." (Complaint, paragraph 1.) The request for a writ of prohibition was denied in an entry of this court dated June 13, 1985.