Ham v. Park

• Decision Date: 06 May 1996
• Docket Number: No. 69081,69081
• Citation: 110 Ohio App.3d 803,675 N.E.2d 505
• Parties: HAM, Appellant, v. PARK, Appellee.
• Court: Ohio Court of Appeals

Page 803

110 Ohio App.3d 803

675 N.E.2d 505

HAM, Appellant, v. PARK, Appellee.

No. 69081.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided May 6, 1996.

Watson & Watson and Michael Troy Watson, Cleveland, for appellant.

Morton Kaplan, Cleveland, for appellee.

HARPER, Presiding Judge.

Plaintiff-appellant, Irving Ham, appeals from the dismissal of his complaint for divorce against defendant-appellee, Linda Park, by the Court of Common Pleas of Cuyahoga County, Domestic Relations Division. Appellant submits that the Civ.R. 41(B)(1) dismissal with prejudice was erroneous in and of itself or was based upon the trial court's failure either to continue the matter or to issue prior notice as to the dismissal. A careful review of the record compels a reinstatement of appellant's complaint in the trial court.

Appellee alleged that she was a victim of domestic violence in an early 1991 civil protection action filed against appellant (D-207875) pursuant to R.C. Chapter 3113. ¹ Appellant answered the complaint and presented a counterclaim premised upon a common-law marriage, but appellee denied the marriage. The trial court set a hearing date to determine the existence of a common-law marriage, presumably to determine whether it possessed jurisdiction over the parties. Appellant voluntarily dismissed his counterclaim on or about February 10, 1993 pursuant to Civ.R. 41(A)(1)(a).

Appellant then filed a complaint for divorce against appellee on September 23, 1993 (D-228692). The trial court originally set the case for hearing before a referee on May 11, 1994. The case was continued three times, with the final hearing date scheduled for November 21, 1994. Appellant requested two of the continuances due to appellee's alleged failure to comply with discovery requests.

Appellant's counsel filed a motion to withdraw on November 8, 1994. Though the trial court's judgment entry, which indicated the granting of the motion, was dated November 8, 1994, the actual filing date was November 23, 1994, as exemplified by the clerk of court's time-stamp. ²

Meanwhile, the matter proceeded to hearing before a referee as scheduled on November 21, 1994. The referee's report dated January 24, 1995 reveals that appellant's new counsel, Michael Troy Watson, filed a motion for continuance on November 16, 1994 in D- 207875, the civil protection case voluntarily dismissed by appellant in early 1993; appellant was not granted a continuance. Watson, therefore, orally moved to dismiss D-228692 without prejudice. The referee found that Civ.R. 41(A)(1) was not applicable since appellant had not filed a motion to dismiss prior to trial.

Appellant was present in the courthouse on the date of the hearing, but he did not present any evidence to the referee with regard to his claim of common-law marriage. The referee recommended that appellant's complaint for divorce be dismissed for lack of prosecution under Civ.R. 41(B)(1). The referee stated further that the dismissal should be with prejudice as a result, in part, of appellant's Civ.R. 41(A)(1)(a) dismissal of his common-law marriage claim in D-207875.

Appellant filed objections to the referee's report on February 8, 1995, and an addendum within the next three weeks. Appellant contested the referee's recommendation that the case be dismissed with prejudice for failure to prosecute. He also offered the denial of the request for a continuance of the November 21, 1994 hearing as demonstrating the impropriety of the referee's recommendation, especially in light of his prior counsel's motion to withdraw from the case.

The trial court overruled the objections, and approved and adopted the referee's recommendations on April 18, 1995. The court's judgment entry reads in part:

"The Court finds Plaintiff failed to prosecute his cause of action aganist [sic ] Defendant on the date of trial, November 21, 1994.

"Plaintiff's motion for continuance filed November 16, 1994 was filed under Case No. D-207875, a matter which was dismissed on February 10, 1993 (Volume 2119, Page 481). Therefore no ruling on said motion to continue shall be made under the instant case number.

"The Court further finds that where one party alleges a common-law marriage, and having once dismissed a cause of action alleging a similar claim, a second dismissal by the Court for failure to prosecute operates as an adjudication on the merits barring further actions on the existence of a common-law marriage.

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this case as well as all pending motions are dismissed with prejudice."

This appeal followed, with appellant claiming the following as error:

"I. The trial court abused its discretion by dismissing plaintiff's complaint with prejudice for want of prosecution without complying with the mandatory notification of Civ.R. 41(B)(1).

"II. The trial court abused its discretion by failing to grant plaintiff continuance of trial date because plaintiff had just retained new counsel and counsel needed time to become abreast with the case.

"III. The trial court committed prejudicial error by holding that the plaintiff having once dismissed his complaint for divorce, a second dismissal by the court for failure to prosecute operates as an adjudication on the merits barring further action on the existence of a common-law marriage."

Appellant's first assignment of error first presents the issue of whether the trial court provided the necessary notice under Civ.R. 41(B)(1) prior to dismissing the complaint for failure to prosecute. Second, he asserts that unless there was evidence that he violated a court order, of which none exists, a Civ.R. 41(B)(1) dismissal is inappropriate.

Civ.R. 41(B)(1) provides:

"Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim."

Regarding the first issue raised by appellant, the courts of Ohio consistently hold that the failure to give notice under the rule is critical and constitutes reversible error. See Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 647 N.E.2d 1361; Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99, 22 OBR 133, 488 N.E.2d 881; Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 7 OBR 256, 454 N.E.2d 951; Rankin v. Willow Park Convalescent Home (1994), 99 Ohio App.3d 110, 649 N.E.2d 1320; McCann v. Lakewood (1994), 95 Ohio App.3d 226, 642 N.E.2d 48. The notice requirement permits a party facing dismissal to explain why the case is not subject to dismissal. See Perotti; Metcalf v. Ohio State Univ. Hosp. (1981), 2 Ohio App.3d 166, 2 OBR 182, 441 N.E.2d 299; Rucker v. Cvelbar Body & Paint Co. (Dec. 7, 1995), Cuyahoga App. No. 68573, unreported, 1995 WL 723307.

Judge John McCormac, a member of the panel in Metcalf, supra, discussed the purpose behind affording notice in McCormac, Ohio Civil Rules Practice (Cum.Supp.1991) 177, Section 13.07. This section provides:

"[N]otice of intended dismissal is a condition precedent to dismissal in order to provide the party in default an opportunity to explain the default or to correct it, or to explain why the case should be dismissed without prejudice. Had counsel for the defaulting party been present at the scheduled trial date and been unable or unwilling to proceed, it would be sufficient notice to move the court to dismiss the case immediately with prejudice for failure to prosecute because there would be an opportunity to respond then to show why the case should not be dismissed either with or without prejudice." (Emphasis added and footnote omitted.)

Appellant has the responsibility of providing the reviewing court with a record of the facts, testimony, and evidentiary matters which are necessary to support the appellant's assignments of error. Wozniak v. Wozniak (1993), 90 Ohio App.3d 400, 409, 629 N.E.2d 500, 506; Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313, 314, 549 N.E.2d 1237, 1238-1239. "When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to the assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 15 O.O.3d 218, 219-220, 400 N.E.2d 384, 385. If a partial record does not conclusively support the trial court's decision, it is presumed that the omitted portion provides the necessary support. Wozniak, 90 Ohio App.3d at 409, 629 N.E.2d at 506; In re Adoption of Foster (1985), 22 Ohio App.3d 129, 131, 22 OBR 331, 332-333, 489 N.E.2d 1070, 1072-1073.

In the present case, the referee's report is the only record of the proceedings held before the referee as appellant did not provide a transcript of the hearing to this court. The referee's report indicates that appellant's counsel was present at the scheduled hearing date of November 21, 1994. Under these circumstances, since it is presumed under Knapp and Wozniak that appellant's attorney had the opportunity to respond to the impending dismissal, notice was provided to appellant as required under Civ.R. 41(B)(1). See Metcalf, supra; Augusta v. Rossi (Mar. 25, 1994), Trumbull App. No. 93-T-4866, unreported, 1994 WL 117113; see, also, Carr v. Green (1992), 78 Ohio App.3d 487, 605 N.E.2d 431.

Appellant's remaining complaint is that there was no evidence that he violated a court order. He argues that a Civ.R. 41(B)(1) dismissal can only be based upon such a violation. However, the rule clearly states that such dismissals are warranted for failure to prosecute, e.g., by failing to present evidence in support of an asserted claim, a conclusion reached by the trial court. Appellant, however, does not challenge this conclusion in his first assignment of error.

Appellant's first assignment of error is accordingly overruled.

Appellant,...