Jones v. Hartranft
| Decision Date | 14 May 1997 |
| Docket Number | No. 95-2497,95-2497 |
| Parties | JONES, Appellee, v. HARTRANFT et al., Appellants. |
| Court | Ohio Supreme Court |
SYLLABUS BY THE COURT
A trial court does not abuse its discretion in dismissing a claim with prejudice under Civ.R. 41(B)(1) when a plaintiff, who has had an objectively reasonable amount of time for discovery, fails to proceed upon a scheduled trial date for want of evidence of defendant's liability.
In May 1991, appellee, Emmanuel Jones, filed a complaint in the Court of Common Pleas of Franklin County alleging injuries beginning in 1977 as the result of the negligence of appellants, Thomas H. Hartranft, M.D., Mount Carmel Health, and Mount Carmel Medical Clinic. Jones dismissed the complaint without prejudice on October 21, 1992.
Jones refiled the complaint one year later. On the day he refiled, the clerk of court prepared a case schedule, setting a trial date for two years thence. Some two weeks later, however, the court filed a case scheduling order which reset the trial date for one year from the complaint refiling date.
Thereafter, during discovery, appellants served interrogatories, to which Jones failed to respond despite several written requests from appellants. Eventually, the trial court granted appellants' motion to compel Jones to answer the interrogatories, and, as a result, Jones finally answered the In those answers, Jones asserted that Dr. Hartranft had performed an unnecessary colostomy on him. With regard to experts supporting his claim, Jones answered that he intended to call Ian C. Lavery, M.D., the surgeon who had performed corrective surgery, and "additional [expert] witnesses to be According to the case scheduling order, the parties were to make a supplemental disclosure of witnesses by May 5, 1994. In June and again in July, according to appellants, they requested the names of Jones's additional witnesses in order to take their depositions. Jones neither responded to appellants' requests nor filed a disclosure of witnesses as ordered by the court.
interrogatories some five months after they had been served
identified sufficiently prior to trial to allow for discovery depositions to be taken." Jones stated that he believed Dr. Lavery was a "general surgeon" and that he expected to retain another expert "qualified to testify as to the standard of care in surgery as performed by Dr. Hartranft."
Two weeks prior to the October 1994 trial, Hartranft moved for a continuance and proposed several dates that he would be available for trial. Jones did not respond to the motion. The court rescheduled the trial for Monday, December 12, 1994, the first of the dates proposed by Hartranft.
On the Friday before the start of trial, while the judge assigned to the case was away, Jones moved to reschedule trial "no sooner than March 20, 1995," indicating that such date "would be within the standard two year limit for trying medical malpractice cases." Jones stated in his motion that his "counsel, because of the lapse of many years, has had difficulty arranging testimony of necessary expert witnesses in this case and is unable to have the case prepared for trial as currently scheduled." Jones acknowledged that if the court denied a continuance, it "would be in a position to dismiss the case with, or without, prejudice."
On the morning scheduled for trial, the court held an off-record discussion with counsel and then conducted a hearing for the purpose of recording portions of that discussion. Jones's counsel stated that he was prepared to discuss the continuance but was not prepared to go forward with the trial. Jones was not present, and his counsel had neither prepared nor subpoenaed any witnesses. Counsel stated that he had voluntarily dismissed Jones's first complaint against appellants because of the complexity of the issues, because of the lengthy time lapse between the date of surgery and the time of suit, and because he was "not prepared to go forward * * * and to respond adequately to discovery" during the pendency of the first complaint. Counsel conceded that, after refiling the complaint, he had "intermittent contact" with Dr. Lavery and concluded that Dr. Lavery might not be "prepared to testify as to the standard of care as an expert" and that he would need to secure an additional expert witness. Counsel acknowledged that he had failed to respond to inquiries from appellants' counsel on several occasions, and that all counsel were aware that Jones could not proceed to trial without an expert witness.
Jones's counsel acknowledged that he had intended to respond to appellants' motion for a continuance of the October 1994 trial date in order to request a 1995 trial date, but the court set the December 1994 date before he responded. He The court observed that Jones's initial complaint had been pending for over one year and that Jones had moved to voluntarily dismiss that complaint because he did not have an expert witness. The refiled case had been pending for over thirteen months when Jones moved for a continuance. The court noted that Jones was not asking for a continuance because his expert witness was not available to testify but because he did not have an expert witness. The court also noted that appellants had invested a significant amount of money in preparing the case for trial as scheduled and that the court had instructed the parties, "If you could enter into some type of agreement * * * with respect to this matter, I would go along with it within reason." The parties could not reach an agreement.
admitted that he did not then move for a further continuance, even though he knew he was not prepared to go to trial without an expert witness, and conceded, "That's neglect on my part for which there is probably no adequate excuse."
At the conclusion of the hearing, the court denied Jones's motion for a continuance. The court stated that it was generally liberal upon a party's first request for a continuance made with advance notice but added, "The day of trial is not, to me, in advance." Jones's counsel reiterated that he was "not prepared to go forward with any evidence," whereupon the court announced it was dismissing the action "under Rule 41 for failure to prosecute." The court later entered an order dismissing the action "[a]s a result of the plaintiff's failure to proceed." 1
The Tenth District Court of Appeals reversed and remanded for further proceedings, ruling that "a trial court abuses its discretion in dismissing a case with prejudice under Civ.R. 41(B)(1) if the circumstances precipitating the termination were not extreme or if other less drastic alternatives were not considered." The appellate court concluded that the trial court had abused its discretion in dismissing Jones's case with prejudice because (1) the court had failed to follow a local rule in initially amending the case schedule, (2) it had permitted appellants to determine whether Jones's motion for continuance would This cause is now before the court pursuant to the allowance of a discretionary appeal.
be granted, and (3) it had not considered a lesser sanction for counsel's "dilatory" trial preparations.
Randall W. Pees, Columbus, for appellee.
Earl, Warburton, Adams & Davis, Ted L. Earl, Columbus, and Christopher R. Walsh, Hilliard, for appellants.
With this case we hold that a trial court does not abuse its discretion in dismissing a claim with prejudice under Civ.R. 41(B)(1) when a plaintiff, who has had an objectively reasonable amount of time for discovery, fails to proceed upon a scheduled trial date for want of evidence of defendant's liability.
DISMISSAL UNDER CIV. R. 41(B)(1)
Civ.R. 41(B)(1) provides that "[w]here the plaintiff fails to prosecute, * * * 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." 2 A dismissal for failure to prosecute "operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies." Civ.R. 41(B)(3).
The decision to dismiss a complaint for failure to prosecute is within the sound discretion of the trial court, and an appellate court's review of such a dismissal is confined solely to the question of whether the trial court abused its discretion. Pembaur v. Leis (1982), 1 Ohio St.3d 89, 91, 1 OBR 125, 126-127, 437 N.E.2d 1199, 1201. The term "abuse of...
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