James Jordan v. Theodore Ivanchak
| Decision Date | 15 December 1989 |
| Docket Number | 88-T-4102,89-LW-4247 |
| Parties | James JORDAN, Jr., Plaintiff-Appellant, v. Theodore IVANCHAK, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Civil Appeal from Trumbull County Court of Common Pleas Case No 87-CIV-718.
James Jordan, Jr., pro se.
Theodore Ivanchak, Warren, for defendant-appellee.
Before CHRISTLEY, P.J., and MAHONEY and FORD, JJ.
This is an accelerated calendar case.
On May 18, 1987, plaintiff-appellant, James Jordan, Jr., an inmate at the Chillicothe Correctional Institution, filed a pro se action against defendant-appellee, Theodore Ivanchak alleging that appellee negligently represented him in a criminal matter.
Between May 18, 1987 and July 12, 1988, appellant filed at least one motion every month including a Writ of Habeas Corpus ad Testificunum which was never ruled on by the trial court.
A pretrial hearing was set for June 17, 1988. Although it is not clear from the record how or when notice of the pretrial was served on the appellant, appellant's June 13, 1988 motion for a thirty-day extension indicates that the appellant had notice of the pretrial hearing. Appellant was incarcerated and thus failed to appear at the hearing. Consequently, the trial court dismissed the case per Rule 12.03 of the Rules of the Trumbull County Court of Common Pleas for failure to prosecute.
Appellant filed a motion for reconsideration on June 29, 1988, which was subsequently denied on July 22, 1988.
On July 12, 1988, appellant timely filed a notice of appeal, assigning the following as error:
In his first assignment of error, appellant argues that the trial court erred in dismissing his complaint without properly notifying him.
The trial court dismissed appellant's action pursuant to Loc.R. 12.03 which states:
"In the event that neither the plaintiff nor his counsel appears for such pre-trial conference, the court may dismiss the case as may be provided by law." (Emphasis added.)
Dismissal of actions for failure to prosecute is governed by 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." (Emphasis added.)
Since the trial court did not specify otherwise in its order, the dismissal was with prejudice and on the merits. Civ.R. 41(B)(3).
In Perotti v. Ferguson (1983), 7 Ohio St.3d 1, the Supreme Court decided this very same issue, concluding that:
" * * * [B]efore a trial court may dismiss a case with prejudice for failure to appear at a pre-trial conference in accordance with a local court rule, notice of the dismissal must be given to plaintiff's counsel pursuant to the provisions of Civ.R. 41(B)(1), * * * " Id. at 3.
The court explained that the purpose of the notice requirement is to give a party a chance to correct the defect, proceed with the action or voluntarily dismiss. This notice requirement reflects " * * * a basic tenet of Ohio jurisprudence that cases should be decided on their merits." Id. at 3. See also Pembaur v. Leis (1982), 1 Ohio St.3d 89. In accord Reckner v. Newman (June 30, 1987), Trumbull App. No. 3772, unreported; Kane v. Internatl. Hydraulics (November 13, 1987), Lake App. No. 12-031, unreported.
In the case sub judice, plaintiff failed to appear for the pretrial because he was incarcerated and the court denied his motion for transportation and did not rule on the Writ for Habeas Corpus ad Testificunum. The record reflects that the case was dismissed without the requisite notice to appellant.
Pursuant to Rule 41(B)(1), the trial court's failure to give proper notice constitutes an abuse of discretion; therefore, appellant's first assignment of error is with merit.
In his second assignment of error, appellant contends that the trial court failed to show good faith when it refused to comply with its own orders, follow O.R.C.P. and allow defendant's false testimony.
Appellant argues that the trial court acted with bad faith when it refused to acknowledge or apply sanctions per Civ.R. 56(G) after it granted his motion to compel.
Civ.R. 56(G) states:
"Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt." (Emphasis added.)
By denying the motion, the court must not have been satisfied that the affidavits presented were in bad faith or for the purposes of delay.
The trial court's judgment cannot be disturbed on appeal absent a showing by the appellant that the court abused its discretion. Koegel v. Koegel (1982), 69 Ohio St.2d 355.
State v. Adams (1980), 62 Ohio St.2d 151, 157-158. Accord Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.
The appellant has failed to show that the trial court did anything unreasonable, arbitrary, unconscionable, or acted beyond its discretion; thus, the second assignment of error is without merit.
In the third assignment of error, appellant argues that the trial court erred in entering a judgment in appellee's favor without allowing him to be present at the pretrial.
The trial court was fully aware of appellant's incarceration and that the only way he could appear at the pretrial was if the court granted the Writ of Habeas Corpus ad Testificunum, the motion for transportation, or appointed counsel to represent him. However, the court denied the two latter motions and chose not to rule on the writ. Thus, even if the trial court had not erred and complied with Rule 41(B)(1) by giving notice to the appellant, the appellant still could not have appeared at the pretrial because he was incarcerated.
The Court of Appeals, Ninth Judicial District, was recently faced with a similar issue in Laguta v. Serieko (June 8 1988), Summit App. No. 13443, unreported. In this case, an inmate acting pro se brought a civil action. The trial court set a pretrial hearing and notified the inmate that "failure to attend...
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