Quonset Hut, Inc. v. Ford Motor Co.

Pfeifer, J.

The decision to dismiss a case pursuant to Civ.R. 41(B)(1) is within the sound discretion of the trial court.1 Jones v. Hartranft (1997), 78 Ohio St.3d 368, 371, 678 N.E.2d 530, 534; Pembaur v. Leis (1982), 1 Ohio St.3d 89, 91, 1 OBR 125, 126, 437 N.E.2d 1199, 1201. Our review of such a dismissal is limited to determining whether the trial court abused its discretion. Jones, 78 Ohio St.3d at 371, 678 N.E.2d at 534. Abuse of discretion “ ‘connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary, or unconscionable attitude on the part of the court * * *.’ ” Pembaur, 1 Ohio St.3d at 91, 1 OBR at 127, 437 N.E.2d at 1201, quoting Klever v. Reid Bros. Express, Inc. (1951), 154 Ohio St. 491, 43 O.O. 429, 96 N.E.2d 781, paragraph two of the syllabus. We conclude that the trial court did not act in an unreasonable, arbitrary, or unconscionable manner and accordingly did not abuse its discretion in dismissing this case with prejudice.

Civ.R. 37(B)(2) states that “[i]f any party * * * fails to obey an order to provide or permit discovery, * * * the court * * * may make such orders in regard to the failure as are just, [including]:

« * * *

*48“(c) An order * * * dismissing the action * * *.”

Civ.R. 41(B)(1) governs involuntary dismissals. It states that “[w]here the plaintiff fails to * * * comply with * * * any court order, the court * * * may, after notice to the plaintiffs counsel, dismiss an action or claim.” Civ.R. 41(B)(1).

Among the factors to be considered by the trial judge in determining whether dismissal under Civ.R. 37 is appropriate is the tenet that “disposition of cases on their merits is favored in the law.” Jones, 78 Ohio St.3d at 371, 678 N.E.2d at 534. See, also, Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99, 101, 22 OBR 133, 135, 488 N.E.2d 881, 883; Hawkins v. Marion Correctional Inst. (1986), 28 Ohio St.3d 4, 5, 28 OBR 3, 4, 501 N.E.2d 1195, 1195-1196. Indeed, this court has stated that “[jludicial discretion must be carefully — and cautiously— exercised before this court will uphold an outright dismissal of a case on purely procedural grounds.” DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189, 192, 23 O.O.3d 210, 212, 431 N.E.2d 644, 646. See, also, Jones, 78 Ohio St.3d at 372, 678 N.E.2d at 534. Despite the heightened scrutiny to which dismissals with prejudice are subject, this court will not hesitate to affirm the dismissal of an action 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.’ ” Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 632, 605 N.E.2d 936, 944, quoting Schreiner v. Karson (1977), 52 Ohio App.2d 219, 223, 6 O.O.3d 237, 239, 369 N.E.2d 800, 803. See DeHart, 69 Ohio St.2d at 193, 23 O.O.3d at 213, 431 N.E.2d at 647 (flagrant, substantial disregard for court rules can justify a dismissal on procedural grounds).

We turn now to the primary issue in this case, whether Quonset’s counsel received the notice due under Civ.R. 41(B)(1). In Mindala, this court held that “the notice requirement of Civ.R. 41(B)(1) applies to all dismissals with prejudice, including those entered pursuant to Civ.R. 37(B)(2)(c) for failure to comply with discovery orders.” (Emphasis sic.) Mindala, 22 Ohio St.3d at 101, 22 OBR at 135, 488 N.E.2d at 883. This court has recently stated that “[t]he purpose of notice is to ‘provide the party in default an opportunity to explain the default or to correct it, or to explain why the case should not be dismissed with prejudice.’ ” Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 128, 647 N.E.2d 1361, 1365, quoting McCormac, Ohio Civil Rules Practice (2 Ed.1992) 357, Section 13.07.

The record indicates that Quonset’s counsel was on notice that the action could be dismissed. Quonset’s counsel was aware that Ford had filed a motion requesting the court to dismiss Quonset’s claim with prejudice. In fact, Quonset filed a responsive motion urging that dismissal not be granted. It is apparent that Quonset’s counsel was on notice of the possibility of dismissal with prejudice. *49Nevertheless, the record does not indicate that Quonset or its counsel took any action to comply with the outstanding discovery order.

Five days after Quonset’s responsive motion, the trial court found Quonset in contempt for failing to comply with the discovery order. A full month after the trial court found Quonset in contempt, Quonset had not complied, even in part, with the discovery order. At that time, the trial court granted Ford’s motion to dismiss with prejudice.

We hold that for purposes of Civ.R. 41(B)(1), counsel 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. See Logsdon, 72 Ohio St.3d at 129, 647 N.E.2d at 1365-1366 (Cook, J., concurring in part and dissenting in part) (the notice required by Civ.R. 41[B][1] need not be actual but may be implied when reasonable under the circumstances).

We turn now to the issue of whether the trial court abused its discretion in dismissing this case with prejudice. Prior to dismissing the case, the trial court issued an order compelling discovery. Quonset did not comply with it. Conse- ■ quently, the trial court issued an order of contempt. Still, Quonset did not comply with the discovery order.

As noted above, the very purpose of notice is to provide a party with an opportunity to explain its default and/or to correct it. Quonset had notice and ample opportunity to explain its default and/or to correct it. It did not do so. There was no reason for the trial court to expect that one more warning would have prompted Quonset to comply with the discovery order it had ignored for over four months, not to mention the contempt order that had been outstanding for a month.

Nothing in the record suggests that the trial court acted in an unreasonable, arbitrary, or unconscionable manner. While the trial court could have expressly notified Quonset that dismissal with prejudice was imminent, its failure to do so was not an abuse of discretion because Quonset was already on implied, if not actual, notice. We reverse the judgment of the court of appeals and reinstate the trial court’s order dismissing the case under Civ.R. 41(B)(1) for failure to comply with a court order.

Judgment reversed.

Moyer, C.J., Cook and Lundberg Stratton, JJ., concur. Douglas, Resnxck and F.E. Sweeney, JJ., dissent.

. While Jones and Pembaur specifically involved dismissals for failure to prosecute, both cases generally addressed involuntary dismissals under Civ.R. 41(B)(1). We conclude that the abuse of discretion standard also applies to dismissals for failure to comply with a discovery order under Civ.R. 41(B)(1).