St. Vincent Charity v. Paluscsak

[Cite as St. Vincent Charity v. Paluscsak, 2020-Ohio-1501.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

ST. VINCENT CHARITY, :

Plaintiff-Appellee, :
No. 108641
v. :

MICHAEL PALUSCSAK, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: April 16, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-898214

Appearances:

Law Office of Boyd W. Gentry, Boyd W. Gentry, and
Zachary P. Elliott, for appellees George Gusses Co., L.P.A.,
George Gusses, Robin A. Worline, and Joseph T.
Szyperski.

Davis & Young, Matthew P. Baringer, and Thomas W.
Wright, for appellee St. Vincent Charity Medical Center
and St. Vincent Charity.

Porter Wright Morris & Arthur, L.L.P., Brodie M. Butland,
and Tracey L. Turnbull, for appellee United Collection
Bureau, Inc.

The Misra Law Firm, L.L.C., and Anand N. Misra; Robert
S. Belovich, for appellant.
FRANK D. CELEBREZZE, JR., J.:

Defendant-appellant, Michael Paluscsak (“appellant”), brings the

instant appeal challenging the trial court’s dismissal of his counterclaim for failure

to prosecute. Specifically, appellant argues that a Civ.R. 41(B)(1) dismissal was not

warranted, the trial court failed to provide sufficient notice prior to dismissal, and

the trial court erred in denying appellant’s motion for relief from judgment. After a

thorough review of the record and law, this court reverses the trial court’s judgment

and remands the matter for further proceedings consistent with this opinion.

I. Factual and Procedural History

The instant appeal has an extremely protracted and lengthy procedural

history. We therefore limit our factual and procedural review to facts pertinent to

the instant appeal.

The instant case originated in the Cleveland Municipal Court as a debt

collection action against appellant for unpaid medical expenses in the amount of

$1,175.40. On July 11, 2017, plaintiff-appellee, St. Vincent Charity (“St. Vincent”),

filed a complaint against appellant in Cleveland M.C. No. 2017CVF009866, in an

attempt to recover these unpaid medical expenses. St. Vincent contracted with

plaintiff-appellee, United Collection Bureau, Inc. (“UCBI”), to perform debt

collection procedures for the hospital. UCBI then hired plaintiff-appellee, George

Gusses Co., L.P.A. (“Gusses”) to file the debt collection action in municipal court.

Throughout this opinion, these three parties will be referred to collectively as

“appellees.”
 On August 14, 2017, appellant filed an answer and counterclaims on

behalf of a putative class. Specifically, appellant asserted claims based on the Fair

Debt Collection Practices Act (“FDCPA”) and the Ohio Consumer Sales Practices Act

(“OCSPA”). Appellant also asserted claims of fraud and abuse of process.

Appellant’s counterclaims were based upon the assertion that the debt collection

action was filed by “St. Vincent Charity,” and not filed by the correct legal entity “St.

Vincent Charity Medical Center.” Appellant asserted in his counterclaim that “the

letter [from UCBI] falsely stated that [appellant] owed money to ‘St. Vincent Charity’

when there is no such entity in existence.”

Thereafter, a pretrial hearing was scheduled for September 25, 2017.

However, appellant’s counsel failed to appear at this pretrial hearing. As a result, on

October 30, 2017, the municipal court issued a judgment entry that dismissed

appellant’s counterclaims for want of prosecution. On November 22, 2017,

appellant appealed to this court. See St. Vincent Charity v. Paluscak, 8th Dist.

Cuyahoga No. 106549.

During the pendency of the appeal, appellant filed a motion for relief

from judgment pursuant to Civ.R. 60(B) on December 18, 2017. On that same day,

appellant filed a motion in this court requesting a limited remand to the municipal

court for consideration of appellant’s motion for relief from judgment. Appellant’s

motion for relief from judgment argued that he did not receive a notice of the

September 25 pretrial hearing. The scheduling of the pretrial hearing was noted on
the court’s docket on August 23, 2017; however, due to a clerical error, the clerk did

not issue a notice of the pretrial hearing to the parties.

On January 8, 2018, this court granted appellant’s request and

remanded the matter to the municipal court “for the sole purpose of ruling on

[appellant’s] motion for relief from judgment.” Motion no. 513044.

On January 31, 2018, the municipal court issued a judgment entry

granting appellant’s motion for relief from judgment noting that “[d]ue to a clerical

error, the court failed to inform counsel of the [September 25, 2017] pretrial

hearing.”

On February 2, 2018, appellant filed a motion in this court to dismiss

his appeal as moot as a result of the municipal court granting his motion for relief

from judgment. On February 5, 2018, this court dismissed appellant’s appeal. See

motion no. 514485.

Thereafter, on May 14, 2018, the municipal court certified the matter

to the Cuyahoga County Court of Common Pleas, and the matter proceeded through

the pretrial process.

Notably, on January 26, 2019, the trial court entered an order

scheduling the case for mediation in the trial court’s alternative dispute resolution

department. On March 4, 2019, the parties filed a joint motion to vacate the trial

court’s order because the parties had retained a private mediator. The trial court

granted the parties’ joint motion on that same day.
 On March 20, 2019, the parties attended a full-day mediation session.

The mediation session did not result in a settlement, but the parties agreed to

continue to utilize the mediation process.

Then on March 27, 2019, the parties filed a joint motion to excuse the

parties’ representatives at a pretrial scheduled for April 2, 2019, but acknowledged

that the parties’ counsel would attend the pretrial. On April 1, 2019, the trial court

granted the joint motion. A pretrial was then had on April 2, 2019, with the parties’

counsel, and as a result of the pretrial hearing, the trial court issued a journal entry

that stated in full

Pretrial held on 04/02/2019. All parties were present through counsel.
The parties are attempting to settle this matter. * * * The court set the
following case schedule: Pretrial set for 05/07/2019 at 01:30 PM.
Pretrial to be conducted by telephone to act as a status conference in
this matter. * * * Failure to appear at any court scheduled event in the
future may result in dismissal of plaintiff’s claims for want of
prosecution or judgment rendered against defendant.

Thereafter, appellant’s counsel failed to appear for the May 7, 2019

pretrial. The trial court issued a journal entry on May 7, 2019, dismissing appellant’s

counterclaims for want of prosecution. The trial court’s journal entry stated that

appellees appeared at the pretrial through counsel and counsel for appellant failed

to appear. The trial court further stated that “pursuant to this court’s prior order

dated 04/03/2019, [appellant’s] counterclaims are hereby dismissed without

prejudice for want of prosecution.”
 On the following day, May 8, 2019, appellant filed a motion to

reconsider or in the alternative a motion for relief from judgment. On May 24, 2019,

the trial court issued a journal entry denying appellant’s motion.

On June 4, 2019, appellant filed his notice of appeal. This court, on

June 12, 2019, issued a sua sponte order dismissing appellant’s appeal for lack of a

final appealable order. Motion no. 529305. In that order, this court noted that “[a]n

action dismissed without prejudice for failure to prosecute is a dismissal otherwise

than on the merits, and as such, is not a final appealable order.” This court also

noted that “appellant’s appeal of the trial court’s denial of his motion to vacate the

dismissal is not a final appealable order.”

Appellant then filed a motion for reconsideration pursuant to App.R.

26(A). This court granted appellant’s motion for reconsideration based upon the fact

that appellant’s federal claims could not be refiled because the Ohio savings statute

does not pertain to the federal claims. Wells Fargo Bank, N.A. v. Wick, 8th Dist.

Cuyahoga Nos. 99373 and 99840, 2013-Ohio-5422, ¶ 6. The instant appeal was then

reinstated.

In the instant appeal, appellant assigns two errors for our review.

I. The trial court committed prejudicial error in dismissing the
counterclaim for lack of prosecution.

II. The trial court committed prejudicial error in denying the motion
for relief from judgment pursuant to [Civ.R. 60(B)(1)].
 II. Law and Analysis

A. Final Appealable Order

As an initial matter, appellees in their briefs contest this court’s

previous order granting appellant’s motion for reconsideration. Appellees argue

that the trial court’s dismissal in its May 7, 2019 journal entry dismissed appellant’s

counterclaims “without prejudice.” As a result, appellees argue that the instant

appeal should be dismissed for lack of a final appealable order.

In his counterclaim, appellant asserted FDCPA and OCSPA claims.

Appellant also asserted claims of fraud and abuse of process. The trial court’s May 7,

2019 journal entry dismissing appellant’s counterclaims stated that the claims were

dismissed “without prejudice.” However, because appellant’s FDCPA claim cannot

be refiled due to the expiration of the statute of limitations, the trial court’s dismissal

is with prejudice. Wick, 8th Dist. Cuyahoga Nos. 99373 and 99840, 2013-Ohio-

5422, at ¶ 6. As such, the trial court’s dismissal of appellant’s counterclaims

constituted a final appealable order.

B. Dismissal of Appellant’s Counterclaims

In his first assignment of error, appellant argues that the trial court

committed prejudicial error when it dismissed his counterclaim for lack of

prosecution.

Pursuant to Civ.R. 41(B)(1), “[w]here 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.” Civ.R. 41(B)(3) provides that a dismissal for failure to prosecute “operates

as an adjudication upon the merits unless the court, in its order for dismissal,

otherwise specifies.”

As noted above, the trial court dismissed appellant’s counterclaim,

pursuant to Civ.R. 41(B)(1), for failure to prosecute. The trial court specified in its

May 7, 2019 order that the dismissal was “without prejudice.”

“The decision to dismiss a complaint for failure to prosecute is within

the sound discretion of the trial court, and an appellate court’s review of such a

dismissal is confined solely to the question of whether the trial court abused its

discretion.” Jones v. Hartranft, 78 Ohio St.3d 368, 371, 678 N.E.2d 530 (1997),

citing Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437 N.E.2d 1199 (1982). A trial court

abuses its discretion when its judgment is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

During oral arguments, appellees collectively disputed whether

appellant’s FDCPA claim is, in fact, barred based on the trial court’s dismissal.

Appellees appeared to suggest that appellant can refile his FDCPA claim and, when

appellees raise the statute-of-limitations issue, appellant can present an equitable

tolling argument.

We decline to depart from this court’s holding in Wick. The effect of

the trial court’s dismissal of appellant’s FDCPA claim was a dismissal with prejudice.
The statute of limitations has expired, and as a result, appellant is barred from

refiling his FDCPA claim.

Although the abuse of discretion standard of review is typically

applied to dismissals for failure to prosecute or 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 530.

This court has previously explained, “it is such a harsh sanction, ‘forever deny[ing]

a plaintiff a review of a claim’s merits,’ we review a trial court’s decision to dismiss a

case with prejudice pursuant to Civ.R. 41(B)(1) under a ‘heightened’ abuse-of-

discretion standard.” Simmons v. Narine, 2014-Ohio-2771, 15 N.E.3d 1206, ¶ 7 (8th

Dist.), quoting Ocran v. Richlak, 8th Dist. Cuyahoga No. 99856, 2013-Ohio-4603,

¶ 12, citing Autovest, L.L.C. v. Swanson, 8th Dist. Cuyahoga No. 88803, 2007-Ohio-

3921, ¶ 18.

Our review of the trial court’s dismissal of appellant’s counterclaims

involves two steps. First, we must determine whether the trial court provided

sufficient notice to the parties prior to the dismissal. Second, we must determine

whether the dismissal constituted an abuse of the trial court’s discretion under the

circumstances. Walker v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 91648,

2009-Ohio-2261, ¶ 8, citing Asres v. Dalton, 10th Dist. Franklin No. 05AP-632,

2006-Ohio-507, ¶ 14.
 1. Factors Warranting Dismissal

Appellant contends that his counsel’s failure to attend the May 7, 2019

pretrial was due to inadvertent miscommunications between appellant’s two

attorneys, Anand Misra and Robert Belovich. In appellant’s motion for relief from

judgment,1 appellant detailed the “unusual circumstances” that led to the

miscommunication between Misra and Belovich, and ultimately the failure to

participate in the May 7, 2019 phone conference:

One of [appellant’s] counsel, [Misra], has been overseas since before
the April 2, 2019 pretrial. As a result, there were failures of
communication regarding the May 7, 2019 telephone pretrial, resulting
in the date not being calendared on either of [appellant’s] counsel[’s]
calendars. Moreover, [Belovich] who attended the in person pretrial
on April 2nd mistakenly understood May 7th to be date for a status
report.

In this appeal, appellant contends that the factors warranting a

dismissal — willfulness, bad faith, or a disregard for the judicial system or appellees

— were not present. We agree.

The proper factors to consider in reviewing 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 interrogatories until threatened with dismissal, and other
evidence that a plaintiff is deliberately proceeding in dilatory fashion
or has done so in a previously filed, and voluntarily dismissed, action.
See Link v. Wabash RR. Co.[, 370 U.S. 626, 633-635, 82 S.Ct. 1386, 8
L.Ed.2d 734 (1962)]; Indus. Risk Insurers v. Lorenz Equip. Co.[, 69
Ohio St.3d 576, 635 N.E.2d 14 (1994), syllabus].

1 Appellant’s attorneys submitted affidavits in support of the motion for
reconsideration or relief from judgment.
Jones, 78 Ohio St.3d at 372, 678 N.E.2d 530. In Toney v. Berkemer, 6 Ohio St.3d

455, 453 N.E.2d 700 (1983), the Ohio Supreme Court adopted the United States

Supreme Court’s holding in Societe Internationale v. Rogers, 357 U.S. 197, 212, 78

S.Ct. 1087, 2 L.Ed.2d 1255 (1958), that “the harsh remedies of dismissal and default

should only be used when the ‘* * * failure to comply has been due to * * * willfulness,

bad faith, or any fault [of a party].’” (Emphasis added.) Toney at 458, quoting

Societe Internationale at 212.

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 at 372]; Indus. Risk Insurers [at the
syllabus]. However, “the 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 v. Emmanuel Family Training Ctr., Inc., 18 Ohio St.3d
64, 70, 479 N.E.2d 879 (1985)]. 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 Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d
46, 48, 684 N.E.2d 319 (1997), quoting Tokles & Son, Inc. v.
Midwestern Indemn. Co., 65 Ohio St.3d 621, 632, 605 N.E.2d 936
(1992)]. Absent such extreme circumstances, a court should first
consider lesser sanctions before dismissing a case with prejudice.
Jones [at 371-372]. 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[, 7 Ohio
St.3d 1, 3, 454 N.E.2d 951 (1983)].

Sazima v. Chalko, 86 Ohio St. 3d 151, 158, 71 N.E.2d 729 (1999).

In the instant matter, after reviewing the record, we find no basis upon

which to conclude that the conduct of appellant or appellant’s counsel warranted a
dismissal of the counterclaim based on counsel’s failure to participate in the May 7,

2019 phone conference. First, the record reflects that appellant vigorously

prosecuted his counterclaim for nearly two years, between August 2017 and May

2019.

Second, the record reflects that appellant’s counsel’s failure to

participate in the May 7, 2019 phone conference was a result of an inadvertent lapse

in communication between appellant’s attorneys, and did not rise to the level of

negligent, irresponsible, or dilatory conduct warranting the dismissal, much less a

complete disregard for the judicial system, the trial court, or appellees’ rights.

Appellant’s co-counsel, Anand Misra, submitted an affidavit in

support of appellant’s motion for reconsideration or for relief from the trial court’s

May 7, 2019 dismissal of the counterclaim. Therein, Misra averred that he typically

takes the initiative to calendar litigation events when he is co-counsel on a case with

Belovich. He was unable to attend the April 2, 2019 pretrial conference because he

was traveling overseas. During his travel — including on April 3, 2019, when the

trial court issued the journal entry and scheduled the May 7, 2019 phone conference

— he had limited access to the internet. Based on these internet and technical issues,

Misra only communicated with Belovich sporadically. Under these circumstances,

Misra assumed that Belovich would take over the duty of calendaring litigation

events. Belovich averred in his affidavit that he was under the impression that Misra

would calendar the litigation events, as was typically the case when the handled a

case together.
 Third, in addition to vigorously prosecuting his counterclaim, the

record reflects that appellant participated in mediation. After the trial court referred

the matter to mediation in January 26, 2019, appellant participated in the mediation

session on March 20, 2019, and proposed a settlement that was taken under

consideration by appellees. The parties, including counsel for appellant, filed a

“joint motion to excuse attendance of party representatives at the April 2, 2019

conference” in which they provided an update to the trial court on the status of

mediation. The motion provided, in relevant part,

[o]n March 20, 2019, the Parties mediated the case[.] * * * The Parties
did not settle the dispute at that mediation, but they were able to
discuss a potential framework to resolve the matter at the end of
mediation. That framework, however, is dependent on a variety of
complex issues that the parties are still investigating (and will still be
investigating at the time of the April 2 conference), and which will
require additional time for discussions between themselves, the
mediator, and third parties.

Appellant’s counsel participated in the April 2, 2019 pretrial

conference during which the May 7, 2019 phone conference was scheduled. The trial

court’s April 3, 2019 journal entry acknowledged the ongoing nature of mediation,

providing, “[t]he parties are attempting to settle this matter.”

In his affidavit, Belovich detailed the discussions that took place

during the April 2, 2019 conference. Appellant’s counsel asserted that mediation

had been continued “to allow [appellees] additional time to evaluate an aspect of a

settlement proposal made by [appellant],” and that “[c]ounsel for [St. Vincent]

stated that his client would likely require additional time to evaluate the type of class
relief proposed by [appellant.]” Belovich asserted that he was under the impression

the parties were only required to provide a mediation status update to the trial court

on May 7, 2019, rather than participating in the previously scheduled phone

conference. He believed that appellees would provide the update to the trial court

because they were considering the settlement proposed by appellant. Finally,

Belovich averred that he made a suggestion to the trial court’s law clerk that the

parties provide a mediation status update to the court on May 7, 2019, rather than

having a phone conference, in the interests of judicial economy.

Accordingly, the record reflects that appellant’s failure to participate

in the May 7, 2019 phone conference was based, in part, on the status of the

mediation at the time of the phone conference — appellant had proposed a

settlement that was taken under advisement by appellees, and appellant was

awaiting a response regarding the proposal.

Finally, there is no evidence in the record before this court that the

trial court considered less severe sanctions. In the motion for reconsideration or for

relief from judgment, appellant’s attorneys acknowledged the “extraordinary

circumstances” that led to the failure to participate in the May 7, 2019 phone

conference. Appellant’s counsel suggested that a monetary sanction would be

appropriate for wasting the resources of the trial court and the other parties. There

is no indication that the trial court took this suggestion, or less severe sanctions, into

consideration before dismissing appellant’s counterclaim.
 Based on the foregoing analysis, we find that appellant’s failure to

participate in the May 7, 2019 phone conference was the result of an inadvertent

communication and scheduling error, and the status of settlement negotiations in

mediation. This error, that was acknowledged and detailed by both of appellant’s

attorneys, does not constitute extreme circumstances or substantial grounds

warranting dismissal of appellant’s counterclaim for failure to prosecute. As this

court has recognized,

Dismissal with prejudice for nonappearance at a pretrial hearing is a
drastic remedy which should be used sparingly and in extreme
situations. Unless a party’s conduct is so negligent, irresponsible,
contumacious, or dilatory as to provide substantial grounds for
dismissal with prejudice, a court should consider lesser sanctions when
a party fails to appear at a hearing.

Willis v RCA Corp., 12 Ohio App.3d 1, 2, 465 N.E.2d 924 (8th Dist.1983).

For all of the foregoing reasons, we find that the trial court’s dismissal

of the counterclaim based on appellant’s counsel’s failure to participate in the May

7, 2019 phone conference was unreasonable, arbitrary, and unconscionable.

2. Notice

The record also reflects that the trial court did not provide sufficient

notice to appellant or his counsel before dismissing the counterclaim.

Before a trial court can properly dismiss a party’s claim for failure to

prosecute under Civ.R. 41(B)(1), the record must show that the party had notice of

the possibility of dismissal. Mokrytzky v. Capstar Capital Corp., 8th Dist.

Cuyahoga No. 91287, 2009-Ohio-238, ¶ 12, citing Logsdon v. Nichols, 72 Ohio St.3d
124, 647 N.E.2d 1361 (1995). The purpose of the notice requirement is to provide a

party who is in default of a court order an opportunity to correct or explain the

circumstances of the party’s default and to provide reasons why the case should not

be dismissed with prejudice. Id. This court has previously noted that “[t]he purpose

of such notice is to allow a party to explain the circumstances causing his or her

nonappearance and why the case should not be dismissed with prejudice.”

Youngblood v. Kindred Healthcare, 8th Dist. Cuyahoga No. 94442, 2010-Ohio-

4358, ¶ 13, citing Logsdon at 128.

Civ.R. 41(B)(1)’s notice requirement is satisfied “when counsel has

been informed that dismissal is a possibility and has had a reasonable opportunity

to defend against dismissal.” Quonset Hut, Inc., 80 Ohio St.3d at 49, 684 N.E.2d

319. What constitutes notice and an opportunity to be heard regarding a proposed

dismissal is examined on a case-by-case basis. Hill v. Marshall, 10th Dist. Franklin

No. 12AP-805, 2013-Ohio-5538, ¶ 8. This notice that is required by Civ.R. 41(B)(1)

need not be actual but may be implied when reasonable under the circumstances.

Sazima, 86 Ohio St.3d at 155, 712 N.E.2d 729, quoting Quonset Hut, Inc. at id.

“[O]nce notice is given that a dismissal with prejudice is a possibility,” the party need

not be given “a second chance to comply with the court’s order.” Mokrytzky at ¶ 13,

citing Shoreway Circle v. Gerald Skoch Co., L.P.A., 92 Ohio App.3d 823, 637 N.E.2d

355 (8th Dist.1994).

In the instant matter, the trial court’s April 3, 2019 journal entry, in

which the May 7, 2019 phone conference was scheduled, provides, in relevant part,
“[f]ailure to appear at any court scheduled event in the future may result in dismissal

of plaintiff’s claims for want of prosecution or judgment rendered against

defendant.” However, the record reflects that the trial court incorporated this

language into all of its journal entries pertaining to pretrial hearings. We cannot

conclude that this language constitutes sufficient notice that failure to participate in

the May 7, 2019 phone conference may result in dismissal for failure to prosecute

based on the status of mediation and settlement negotiations set forth above.

The record is devoid of any evidence indicating that the court or

appellees attempted to contact appellant or appellant’s counsel before or during the

phone conference when appellant’s counsel did not participate. Nor is there any

indication in the record that the trial court contacted appellant or appellant’s

counsel after the phone conference before dismissing the case.

The phone conference was scheduled for 1:30 p.m. The trial court’s

journal entry dismissing the counterclaim for failure to prosecute was filed on

May 7, 2019, at 4:23 p.m. Under these circumstances, appellant did not receive

sufficient notice, much less an opportunity to defend against dismissal, before the

trial court dismissed the counterclaim for failure to prosecute.

Finally, the record reflects that the trial court may have been confused

about the effect of the dismissal or unaware that the dismissal barred appellant from

refiling his FDCPA claims. The language in the trial court’s May 7, 2019 journal

entry of dismissal — dismissing the case “without prejudice” and designating the

judgment as “partial” rather than “final” — suggests that the trial court did not
intend to extinguish, or was unaware that the dismissal would extinguish,

appellant’s FDCPA claims.

For all of the foregoing reasons, appellant’s first assignment of error

is sustained. The trial court abused its discretion in dismissing appellant’s

counterclaim for failure to prosecute based on appellant’s failure to participate in

the May 7, 2019 phone conference. Our resolution of appellant’s first assignment of

error renders the second assignment of error moot.

The trial court’s judgment is reversed, and the matter is remanded for

further proceedings consistent with this opinion.

It is ordered that appellant recover from appellees costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________________
FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR