Atkins, In re

• Decision Date: 25 May 1990
• Docket Number: No. 1606,1606
• Citation: 67 Ohio App.3d 783,588 N.E.2d 902
• Parties: In re ATKINS.
• Court: Ohio Court of Appeals

Page 783

67 Ohio App.3d 783

588 N.E.2d 902

In re ATKINS.

No. 1606.

Court of Appeals of Ohio, Fourth District, Ross County.

Decided May 25, 1990.

Walter Atkins, pro se.

STEPHENSON, Judge.

This is an appeal from a judgment entered by the Common Pleas Court of Ross County, Probate Division, dismissing, for want of prosecution, a petition for name change filed in that court by Walter Atkins, petitioner below and appellant herein. Appellant has failed to designate a statement of assignments of error, as required by App.R. 16(A)(2), but has set forth the following "grounds" for his appeal:

"(1) The probate court committed prejudicial error in case No. 89-CN-9 by violating the appellant's due process and equal protection of the law rights through the denial of his name change petition.

"(2) The probate court violated the appellant's statutory right pursuant to Ohio Revised Code Sections 2905.12 [sic ] & 2912.45 [sic ] through refusing to grant his name change petition after appellant had fully complied with statutory procedures."

The facts pertinent to this appeal are as follows. On May 23, 1989, appellant filed his petition for name change with the court below. Appellant alleged therein that the reason for his petition was that he is required by his Islamic faith to hold himself out in public under an Islamic name and, therefore, he requested an order of the court to change his name to "Rahrah Rashad." A hearing on the matter was originally scheduled for June 6, 1989, but was, for a reason not disclosed in the record, rescheduled to June 9, 1989, by the court.

On June 9, 1989, the court below sua sponte dismissed the petition for "want of prosecution" without any further explanation of its action. It would appear, from appellant's return address and from allegations in his affidavit of indigency, that appellant is an inmate incarcerated in the Chillicothe Correctional Institute. Although not set forth in the judgment below, we infer that the "want of prosecution" for which the court dismissed the petition was appellant's failure to appear at the noticed hearing.

Therefore, the issue posited for our review is whether the trial court erred in dismissing the petition after appellant failed to appear at the hearing. For the following reasons, we hold in the affirmative.

The dismissal of a claim for failure to prosecute is provided for by Civ.R. 41(B)(1) and (3) and is deemed to be on the merits, with prejudice, unless the court's order of dismissal affirmatively provides otherwise. See Staff Notes to Civ.R. 41; 9 West's Ohio Practice (1970) 616. The court's dismissal of appellant's name change petition does not otherwise specify and, therefore, is deemed to be on the merits.

It is settled that where a party fails to appear on the date set for a hearing, the court may order a dismissal under Civ.R. 41(B)(1). Allstate Ins. Co. v. Rule (1980), 64 Ohio St.2d 67, 69, 18 O.O.3d 299, 300, 413 N.E.2d 796, 798. However, such authority in the court is coupled with the caveat that an indispensable prerequisite to the dismissal is that plaintiff's counsel, or plaintiff if the proceeding is pro se, be given notice of the intended dismissal. Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 2, 7 OBR 256, 256-257, 454 N.E.2d 951, 951-952.

Although Perotti concerned a failure to appear at a pretrial conference, the requirement of notice as an "indispensable prerequisite" was extended to a failure to appear at trial in Metcalf v. Ohio State Univ. Hosp. (1981), 2 Ohio App.3d 166, 2 OBR 182, 441 N.E.2d 299. In Metcalf, the Franklin County Court of Appeals reasoned that a party is entitled to notice of a Civ.R. 41(B)(1) motion to dismiss in order to have the opportunity to oppose said motion and failure to give such notice is prejudicial error. Id. at 167, 2 OBR at 183, 441 N.E.2d at 301. If a party had actually appeared at trial, but for some reason failed to prosecute, it would be sufficient notice to merely make the motion in the party's presence. Id. The Supreme Court has since applied this notice requirement, prior to dismissal under Civ.R. 41(B)(1), to a variety of situations in which there has been a want of prosecution. See, e.g., Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 6 OBR 403, 453 N.E.2d 648; Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 18 OBR 96, 479 N.E.2d 879.

After a review of the sparse record of the proceedings below, we note that there is no evidence that appellant herein was given prior notice of the court's sua sponte entry of dismissal. Accordingly, under authority of Metcalf, Svoboda and Moore, supra, we hold that the court below committed prejudicial error by sua sponte dismissing the action without giving notice to appellant in order to allow him to oppose said dismissal. Accordingly, the judgment is reversed and the cause is remanded for further proceedings.

For purposes of remand, we would note that after the required prior notice of a sua sponte dismissal is given, it is then within the sound discretion of the court to dismiss the action for lack of prosecution and such a dismissal will not be reversed absent a showing of an abuse of discretion. Pembaur v. Leis (1982), 1 Ohio St.3d 89, 91, 1 OBR 125, 126, 437 N.E.2d 1199, 1201. An abuse of discretion connotes more than an error of law or judgment; it implies an unreasonable, arbitrary or unconscionable attitude. Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 22, 552 N.E.2d 202, 205; Sandusky Properties v. Aveni (1984), 15 Ohio St.3d 273, 275, 15 OBR 408, 409, 473 N.E.2d 798, 800.

Recently, the Summit County Court of Appeals held it to be an abuse of discretion for a trial court to dismiss a pro se complaint filed by an incarcerated prisoner under Civ.R. 41(B)(1) without first reviewing lesser sanctions and determining that their application would not further the interests of justice. Laguta v. Serieko (1988), 48 Ohio App.3d 266, 549 N.E.2d 216. The court in Laguta explained as follows:

"In situations where, as here, the plaintiff is unrepresented by counsel and incarcerated, the federal courts have ruled that trial courts should pursue avenues other than dismissal for want of prosecution in order to ensure that those claims so deserving be adjudicated on their merits. Poole v. Lambert (C.A. 11, 1987), 819 F.2d 1025; Palmer v. Decatur (C.A. 7 1987), 814 F.2d 426; Reynolds v. Foree ...