[Cite as Esser v. Murphy, 2012-Ohio-1168.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
EUGENE P. ESSER C.A. No. 25945
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
STEPHEN R. MURPHY, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellees CASE No. CV-2010-10-6694
DECISION AND JOURNAL ENTRY
Dated: March 21, 2012
BELFANCE, Presiding Judge.
{¶1} Plaintiff-Appellant Eugene Esser appeals from the judgment of the Summit
County Court of Common Pleas dismissing his complaint with prejudice. For the reasons set
forth below, we reverse.
I.
{¶2} On October 1, 2010, Mr. Esser filed an action sounding in tort against Steven
Murphy, the Committee for Ethical Government in Twinsburg, John Does 1-10, and Jane Does
1-10. The complaint indicated that the action was a re-filed action that had been previously
dismissed without prejudice pursuant to Civ.R. 41(A)(1) on October 2, 2009. Mr. Murphy filed
a pro se answer on behalf of himself and the Committee for Ethical Government in Twinsburg
(“the Committee”). On November 18, 2010, the trial court filed an order concerning the first
pretrial to be held December 20, 2010. The trial court noted that sanctions could be imposed for
failure to attend or comply with the order. In addition, the order required the parties to submit a
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pretrial statement to the trial court and opposing counsel. It is unclear from the record if the
pretrial conference was held; however, no pretrial statements were submitted by the parties prior
to the case being transferred to another judge on December 29, 2010.
{¶3} On January 6, 2011, the newly assigned judge filed an order concerning the “first”
pretrial conference to be held January 24, 2011. The order noted that the failure to attend the
conference could result in sanctions.
{¶4} Thereafter, the matter was assigned to another judge. That judge issued an order
on February 7, 2011, ordering that “on or before March 4, 2011, each party [shall] advise the
Court, in writing, of the status of the case * * * .” Further, in the order, the trial court questioned
whether Mr. Murphy could represent the Committee, given that he was not an attorney. In
addition, the order provided that “[c]ounsel and the parties are hereby notified, pursuant to
Civ.R. 41(B)(1), that failure to comply with this order may result in dismissal pursuant to Civ.R.
41(B)(1) and (3), or judgment pursuant to order of this Court.”
{¶5} On March 3, 2011, Mr. Murphy filed an amended answer, a set of interrogatories
and request for documents, and a status report. Mr. Murphy filed these solely on behalf of
himself. On April 19, 2011, the trial court issued a judgment entry dismissing the action because
Mr. Esser had not complied with the February 7, 2011 order. Subsequently, Mr. Esser filed a
motion for relief from judgment which is not the subject of this appeal.
{¶6} Appellees have not filed a brief in this Court; accordingly, pursuant to App.R.
18(C), we “may accept the [A]ppellant’s statement of the facts and issues as correct and reverse
the judgment if [A]ppellant’s brief reasonably appears to sustain such action.”
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT FAILED TO GIVE ADEQUATE NOTICE OF ITS
INTENTION TO DISMISS PLAINTIFF’S COMPLAINT.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING
PLAINTIFF’S COMPLAINT WITH PREJUDICE FOR FAILURE TO FILE A
STATUS REPORT.
{¶7} Mr. Esser asserts in his two assignments of error that the trial court erred in
dismissing his complaint with prejudice. We agree.
{¶8} We initially observe that, while the trial court did not specify that its dismissal
was with prejudice, Civ.R. 41(B)(3) provides that “[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.” Thus, the trial court’s dismissal
was with prejudice.
{¶9} The question presented here is whether the trial court properly dismissed this case
sua sponte with prejudice for failure to file a status report at the outset of the case. The Ohio
Supreme Court has repeatedly emphasized that a basic tenet of Ohio jurisprudence is that cases
should be decided on their merits. See, e.g., Ohio Furniture Co. v. Mindala, 22 Ohio St.3d 99,
101 (1986). It has also emphasized that a dismissal on the merits is a harsh remedy that calls for
the due process guarantee of prior notice. Id. Although we review a trial court’s decision to
dismiss for an abuse of discretion, dismissals with prejudice are subject to heightened scrutiny.
Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 47-48 (1997).
{¶10} Mr. Esser asserts both that he received insufficient notice prior to the dismissal of
his action and that the sanction of dismissal with prejudice under the circumstances of this case
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was too harsh. Civ.R. 41(B)(1) provides that, “[w]here the plaintiff fails to prosecute, or comply
with these rules or any court order, the court * * * on its own motion may, after notice to the
plaintiff’s counsel, dismiss an action or claim.” (Emphasis added.) The 1972 Staff Note to
Civ.R. 41 states that, “[a]s amended, the rule makes clear that a motion, either by the defendant
or by the court, is the proper procedural device for implementing the dismissal of an action when
plaintiff fails to prosecute or comply with ‘these rules’ or a court order.” 1972 Staff Note, Civ.R.
41, quoting Civ.R. 41(B)(1). Thus, the language of the rule itself suggests that, before an action
may be dismissed by the court for failure to comply with an order of the court, plaintiff’s counsel
must be notified of the court’s intent to dismiss after plaintiff fails to comply with an order of the
court. See Civ.R. 41(B)(1).
{¶11} The Supreme Court of Ohio has also interpreted the rule in a variety of contexts.
It has stated that “the notice requirement of Civ.R. 41(B)(1) applies to all dismissals with
prejudice.” (Internal quotations and citation omitted.) (Emphasis sic.) Sazima v. Chalko, 86
Ohio St.3d 151, 155 (1999). “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. See also Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 518 (2000). “[T]he
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.’”
Sazima at 155, quoting Quonset Hut, Inc. at syllabus. Although the notice requirement may be
satisfied by virtue of an opposing party’s motion seeking dismissal as a sanction, nonetheless,
there must be some notice that provides the party with an indication that the action is actually in
jeopardy of being dismissed and a corresponding opportunity to explain or cure the deficiency.
See, e.g., Sunkin v. Collision Pro, Inc., 174 Ohio App.3d 56, 2007-Ohio-6046, ¶ 16 (9th Dist.)
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(“A pending motion to dismiss, for example, is sufficient for notice to be charged to the
plaintiff.”) .
{¶12} In this case, the trial court did not issue any notification that it was intending to
dismiss the action due to the failure to file a status report. Nor was there a motion by an
opposing party seeking to dismiss the matter due to noncompliance with the trial court’s order to
provide a status report. Although the trial court’s February 7, 2011 order contained standard
language of a boilerplate nature that dismissal for noncompliance with the trial court’s order was
a possibility, there was no notice of the trial court’s intention to dismiss due to noncompliance as
contemplated by Civ. R. 41(B)(1). See also Levorchik v. DeHart, 119 Ohio App.3d 339, 343
(2nd Dist.1997) (noting that Ohio Furniture Co. has been interpreted as “mandating that courts
give a noncompliant party a ‘second chance’ to comply with court orders before imposing
dismissal[]”). As Mr. Esser was not notified that he failed to comply with the portion of the trial
court’s order instructing the parties to file a status report, we also cannot say that Mr. Esser had a
reasonable opportunity to defend against the dismissal. See Sazima at 155, quoting Quonset Hut,
Inc., 80 Ohio St.3d at syllabus; Noles v. Bennett, 9th Dist. No. 97CA006988, 1998 WL 668201,
*2 (Sept. 30, 1998).
{¶13} Moreover, in the context of this case, we view dismissal of the action as an
unduly harsh sanction for Mr. Esser’s failure to file a status report. In the context of a Civ.R.
41(B)(1) dismissal, we have stated that an abuse of discretion will be found where the trial court
has not considered other less drastic alternatives. Ina v. George Fraam & Sons, Inc., 85 Ohio
App.3d 229, 231 (9th Dist.1993). Given that this case had been transferred to three judges within
several months of the filing of the complaint, it is very possible that some confusion could have
resulted. We note that Mr. Esser was not the only party to fail to comply with the trial court’s
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order; the Committee also did not comply, yet, it suffered no penalty. Moreover, this litigation
does not appear to be unduly drawn out by virtue of dilatory tactics on the part of Mr. Esser. On
the contrary, the record indicates the action was only in the beginning stages. Any protraction
appears to be due to the repeated transfer of the case to different judges; something outside of
Mr. Esser’s control. Accordingly, we fail to see how Mr. Esser’s conduct was “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 quotations and citation
omitted.) Quonset Hut, Inc. at 48; see also Hobbs v. Lopez, 4th Dist. No. 95CA2343, 1995 WL
769266, *3 (Dec. 27, 1995); Ina at 231. Therefore, we sustain Mr. Esser’s assignments of error
and reverse the dismissal of this matter.
III.
{¶14} In light of the foregoing, we reverse the judgment of the Summit County Court of
Common Pleas and remand the matter for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellees.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR.
APPEARANCES:
BRENT L. ENGLISH, Attorney at Law, for Appellant.
STEPHEN R. MURPHY, pro se, Appellee.