[Cite as Dye v. J.J. Detweiler Ents., Inc., 2021-Ohio-1393.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JAMES DYE, ET AL. : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiffs-Appellants : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
J.J. DETWEILER ENTERPRISES, :
INC., ET AL. : Case No. 2020CA00101
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas Case Nos. 2018CV02475 &
2017CV01298
JUDGMENT: Reversed
DATE OF JUDGMENT: April 21, 2021
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
JON A. TROYER JAMES J. COLLUM
5619 Tyro Street, NE 4740 Belpar Street, NW
Canton, OH 44721 Suite C
Canton, OH 44718-3685
Stark County, Case No. 2020CA00101 2
Wise, Earle, J.
{¶ 1} Plaintiffs-Appellants, James Dye and Andralett Dye, appeal the June 17,
2020 judgment entry of the Court of Common Pleas of Stark County, Ohio, dismissing
the complaint, as well as other judgment entries filed prior to the dismissal insofar as
those judgment entries were incorporated in and made final and appealable as a result
of the June 17, 2020 final entry. Defendants-Appellees are Joseph J. Detweiler and J.J.
Detweiler Enterprises, Inc.
FACTS AND PROCEDURAL HISTORY
{¶ 2} The dispute between the parties arose from monies due and owing by
appellants on a cognovit note and past due rent for warehouse storage. Complaints
were filed in 2014 and 2015 and assigned to the Honorable John G. Haas. The parties
entered into a settlement agreement in December 2015 and the cases were dismissed.
Appellants were to auction off their property stored at the warehouse to pay the amount
owed ($54,079.57). After the first auction, a dispute arose over the settlement
agreement. Sometime thereafter, counsel and Judge Haas engaged in an off the
record conversation, and oral modifications were made to the settlement agreement.
{¶ 3} On July 27, 2016, appellants filed a complaint against appellees alleging
breach of contract, conversion, and tortious interference, and sought punitive damages
(Case No. 2016CV01730). The case was originally assigned to Judge Haas, but was
transferred to the Honorable Frank G. Forchione due to a conflict of interest. On
September 5, 2016, appellee Joseph J. Detweiler passed away. The executor of his
estate was substituted as a party. On June 26, 2017, the parties jointly dismissed their
claims.
Stark County, Case No. 2020CA00101 3
{¶ 4} On June 27, 2017, appellants refiled their complaint, adding a claim for
theft (Case No. 2017CV01298). On July 20, 2017, appellants filed an amended
complaint to add a claim for civil conspiracy. On February 9 and 26, 2018, appellants
filed responses to motions with attached affidavits from their attorney, Jon Troyer,
wherein he claimed during the conversation between counsel and Judge Haas, he
relied on certain representations from appellees' then counsel to the detriment of his
clients. On March 9, 2018, appellees filed a motion to disqualify appellants' attorney as
he may be called as a necessary witness at trial based upon statements he made in his
affidavits. The trial court held a hearing on April 26, 2018. By judgment entry filed May
7, 2018, the trial court denied the motion to disqualify Attorney Troyer, but ordered
appellants to obtain co-counsel for the trial in the event Attorney Troyer was called to
testify. On October 12, 2018, appellants filed a motion for reconsideration of the trial
court's May 7, 2018 decision. By judgment entries filed October 15, 2018, the trial court
denied the motion, and again ordered appellants to obtain co-counsel for the scheduled
trial date of October 16, 2018. Apparently appellants secured co-counsel for trial, but
said co-counsel backed out at the last minute. Appellants were unable to obtain
alternate co-counsel as ordered. As a result, by judgment entry filed October 16, 2018,
the trial court dismissed the complaint without prejudice.
{¶ 5} On December 21, 2018, appellants refiled their 2017 amended complaint
(Case No. 2018CV02475). On March 31, 2020, appellants filed a motion to continue
the April 7, 2020 trial date. By judgment entry filed April 3, 2020, the trial court granted
the motion, and once again ordered appellants to obtain co-counsel who "shall enter an
appearance on the record and appear at all further pretrials, conferences, hearings and
trial." On April 22, 2020, appellees filed a motion to dismiss the complaint with prejudice
Stark County, Case No. 2020CA00101 4
pursuant to Civ.R. 41(B)(1) for appellants' failure to secure co-counsel as ordered. By
judgment entry filed May 19, 2020, the trial court ordered appellants to obtain co-
counsel on or before June 1, 2020, or the motion would be granted and the complaint
would be dismissed. On June 2, 2020, appellants filed a motion for reconsideration of
the trial court's decisions filed April 3, and May 19, 2020. By judgment entry filed June
17, 2020, the trial court denied the motion and dismissed the complaint with prejudice.
{¶ 6} Appellants filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 7} "THE TRIAL COURT ERRED BY DISMISSING THE COMPLAINT WITH
PREJUDICE PURSUANT TO CIV. R. 41(B)(1) WHEN SUCH DISMISSAL WAS BASED
ON NON-COMPLIANCE WITH A VOID COURT ORDER."
II
{¶ 8} "THE TRIAL COURT ERRED IN MAKING FINDINGS OF FACT IN ITS
JUDGMENT ENTRIES WITHOUT EVIDENTIARY FOUNDATION AND IN MAKING
FINDINGS OF FACT THAT ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE."
III
{¶ 9} "THE TRIAL COURT ERRED IN RULING TO PERMIT THE
INTRODUCTION AT TRIAL OF SELF-SERVING TESTIMONY OF A DECEASED
DEFENDANT'S STATEMENTS ALLEGEDLY MADE TO HIS ATTORNEY WHILE AT
THE SAME TIME RULING TO EXCLUDE OTHER EVIDENCE THAT CONTRADICTS
THOSE STATEMENTS AND SUPPORTS PLAINTIFFS' CLAIMS."
Stark County, Case No. 2020CA00101 5
I
{¶ 10} In their first assignment of error, appellants claim the trial court erred in
dismissing the complaint with prejudice. We agree.
{¶ 11} The trial court dismissed the complaint pursuant to Civ.R. 41(B)(1) which
states: "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."
{¶ 12} The decision to dismiss a case pursuant to Civil Rule 41(B)(1) is within a
trial court's sound discretion. Jones v. Hartranft, 78 Ohio St.3d 368, 678 N.E.2d 530
(1997). In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 13} "Although reviewing courts employ an ordinary abuse of discretion
standard of review for dismissal with prejudice, that standard is actually heightened
when reviewing decisions that forever deny a plaintiff a review of a claim's merits." S.C.
v. Licking County Health Department, 5th Dist. Licking No. 17-CA-16, 2017-Ohio-7821,
¶ 14, citing Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 684 N.E.2d 319
(1997). " 'The law favors deciding cases on their merits unless 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.' " Tokles &
Son, Inc. v. Midwestern Indemnity Co., 65 Ohio St.3d 621, 605 N.E.2d 936 (1991),
quoting Schreiner v. Karson, 52 Ohio App.2d 219, 223, 369 N.E.2d 800 (9th Dist.1977).
{¶ 14} The trial court dismissed the complaint with prejudice for appellant's failure
to obtain co-counsel as ordered to do so on numerous occasions.
Stark County, Case No. 2020CA00101 6
{¶ 15} A hearing on appellees' motion to disqualify Attorney Troyer was held in
Case No. 2017CV01298 on April 26, 2018. At issue were four paragraphs of Attorney
Troyer's affidavits. April 26, 2018 T. at 110-111. Attorney Troyer informed the trial court
that he did not intend to testify as he had two witnesses who could testify to the
statements he made in those paragraphs. Id. at 109. He stated, "[s]o we have ample
other avenues to introduce this kind of, of testimony if need be, but it is entirely
dependent upon their action from a defense perspective." Id. at 99-100. Attorney
Troyer argued, "I am certainly not going to call myself as a witness in my own case. I
cannot fathom a scenario where my testimony would be beneficial to the opposing
party's case." Id. at 135. The trial court noted appellees "can call whoever they want to
call as long as it's relevant and not prejudicial." Id. at 140.
{¶ 16} In its judgment entry filed May 7, 2018, the trial court denied appellees'
motion to disqualify Attorney Troyer, but ordered appellants to obtain co-counsel for the
trial in the event Attorney Troyer was called as a witness. As noted by the trial court,
appellees had argued that Attorney Troyer "has made himself into a fact witness by
attaching multiple attorney affidavits to the Plaintiffs' pleadings that attest to his personal
knowledge, including but not limited to, the settlement agreement and removal of
Plaintiff's property, both at issue in this matter." Appellees argued by interjecting
himself into the case, Attorney Troyer cannot serve as both a witness and an advocate
in the case. Therefore, he must be removed as counsel because he may be called as a
witness. Appellants argued Attorney Troyer's affidavits "are not likely to be a contested
issue of fact" at trial, and he was not a necessary witness as any information in his
affidavits could be obtained through other means and witnesses. The trial court
concluded that appellees "will be permitted to call Attorney Troyer as a witness if the
Stark County, Case No. 2020CA00101 7
Court finds his testimony relevant and non-prejudicial," and ordered appellants to obtain
co-counsel throughout the trial for in the event Attorney Troyer is called as a witness,
"there will be representation who can handle any objections or arguments on his behalf
during his testimony."
{¶ 17} In its May 19, 2020 judgment entry in Case No. 2018CV02475, the trial
court reaffirmed its May 7, 2018 decision, finding the following:
The Court has determined that co-counsel in this case is critical. If
no co-counsel appears in this case, Plaintiffs are in a position at trial
where their own lawyer will most likely be called as a witness by
Defendants. There will be no one to argue to the Court regarding any
improper questioning or object to the relevancy of any questions. More
importantly, Attorney Troyer would be stuck with the answers that are
elicited upon vigorous questioning by Defendant's counsel. Attorney
Troyer would not have a lawyer there to reexamine him to further explain
the context of any previous answers or to be rehabilitated on the stand. In
reality, this could lead to a kangaroo court.
{¶ 18} As succinctly stated by the trial court in its June 17, 2020 judgment entry
denying appellants' motion for reconsideration:
This has been a difficult, combative and complex case that is
heading into its fifth year. Certain rulings have already been reviewed by
the Fifth District Court of Appeals. The facts are further muddied by
Stark County, Case No. 2020CA00101 8
alleged conversations between counsel in front of another judge, both
sides attempting to disqualify their opponent's attorneys, the death of one
party, and affidavits filed by Plaintiffs' counsel which may require him to be
called as a vital witness to the case. The Court has tried to issue rulings
timely and fairly to guarantee each side a fair shake. The Court even held
two mediation sessions in its courtroom in an attempt to resolve the matter
to defray costs.
The Court is confounded by Plaintiffs' blatant refusal to follow the
orders previously set forth. This Court has given Plaintiffs ample time to
comply and even extended the time limitations to ensure due process.
However, orders need to be followed. Defendants have cooperated even
if at times they have not agreed with the Court's rulings. This system
cannot operate effectively if one side can simply "thumb their nose" at the
Court.
{¶ 19} We certainly understand the trial court's concerns and frustrations with this
ongoing case, and find the trial court has gone to great lengths to accommodate the
parties' requests and to explain its rulings. However, given the facts before this court,
we find a dismissal with prejudice was not warranted and the trial court abused its
discretion in so ordering.
{¶ 20} The trial court's decision to order co-counsel is premised on hypotheticals,
if in fact Attorney Troyer is called to testify and if the trial court finds his testimony to be
relevant and not prejudicial. At this point, any potential problems arising from Attorney
Troyer's statements in his affidavits are purely speculative. Although the trial court's
Stark County, Case No. 2020CA00101 9
strong pleas to settle the case appears to be falling on deaf ears, it is not out of the
realm of possibility that the parties could settle the matter in the eleventh hour and the
trial does not proceed. A dismissal with prejudice precludes this possibility. In its May
7, 2018 judgment entry denying appellees' motion to disqualify Attorney Troyer, the trial
court acknowledged "that removing counsel from a case is an extreme, drastic measure
which should not be imposed unless absolutely necessary." There is nothing more
drastic than dismissing a complaint with prejudice, forever barring appellants' claims.
{¶ 21} Appellants failure to comply with the trial court's order and obtain
additional counsel does not rise "to the level of extreme circumstances that would justify
a dismissal with prejudice without first resorting to the imposition of lesser sanctions."
Sazima v. Chalko, 86 Ohio St.3d 151, 159, 712 N.E.2d 729 (1999). In addition, any
order requiring appellants to obtain co-counsel until an actual conflict arises is
premature.
{¶ 22} Upon review, we find the trial court abused its discretion in granting
appellees' motion to dismiss the complaint with prejudice pursuant to Civ.R. 41(B)(1).
{¶ 23} Assignment of Error I is granted.
II, III
{¶ 24} Given our ruling in Assignment of Error I, we find Assignment of Error II to
be moot and Assignment of Error III to be premature.
Stark County, Case No. 2020CA00101 10
{¶ 25} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby reversed.
By Wise, Earle, J.
Gwin, P.J. and
Hoffman, J. concur.
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