Pembaur v. Leis, s. 81-1083

• Decision Date: 21 July 1982
• Docket Number: 81-1169,Nos. 81-1083,s. 81-1083
• Citation: 1 OBR 125,1 Ohio St.3d 89,437 N.E.2d 1199
• Parties: , 1 O.B.R. 125 PEMBAUR, Appellee, v. LEIS, Pros. Atty., et al., Appellants.
• Court: Ohio Supreme Court

Page 89

1 Ohio St.3d 89

437 N.E.2d 1199, 1 O.B.R. 125

PEMBAUR, Appellee, v. LEIS, Pros. Atty., et al., Appellants.

Nos. 81-1083, 81-1169.

Supreme Court of Ohio.

July 21, 1982.

Syllabus by the Court

Pursuant to Civ.R. 41(B)(1), it is not an abuse of discretion for the trial court to dismiss an action, with prejudice, for lack of prosecution when a plaintiff voluntarily fails to appear at a hearing, without explanation, when the court has directed him to be present and his location is unknown.

Dr. Bertold J. Pembaur, appellee herein, was being investigated by the state for fraud perpetrated on the Ohio Department of Public Welfare in billing for services allegedly not rendered. In April 1977, several county and state employees, appellants herein, armed with search warrants, seized medical records related to the billings kept by appellee at the Rockdale Medical Center. While the criminal investigation was pending, Pembaur initiated this civil action, in the Court of Common Pleas of Hamilton County against appellants. The complaint sought the return of his medical records and damages for their alleged illegal detention.

The appellants obtained a protective order that stayed discovery because of the pending criminal investigation. Subsequently, the order was set aside on the condition that Pembaur could depose the appellants only if he submitted to being deposed first.

After Pembaur failed to appear for the criminal trial, a status report for this case was scheduled. Pembaur did not appear at the scheduled time, February 26, 1980, but his counsel was present. ¹ At that time, the appellants filed a motion to dismiss for failure to prosecute. The trial court set a hearing on the motion for March 25, 1980 and required that Pembaur be present in court. ² However, Pembaur failed to appear, although his counsel did. The court dismissed with prejudice, stating that Pembaur's failure to appear at the hearing was a clear case of failure to prosecute.

The Court of Appeals reversed finding that the complaint should have been dismissed without prejudice. The court concluded that dismissal was appropriate but that dismissal with prejudice was too severe.

The cause is now before this court pursuant to the allowance of motions to certify the record.

William Flax, Cincinnati, for appellee.

Simon L. Leis, Jr., Pros. Atty., Leonard Kirschner and Robert W. Worth, Cincinnati, for appellants Leis, Whalen and Jackson.

William J. Brown, Atty. Gen., and Howard D. Silver, Asst. Atty. Gen., for appellants Heavrin, Sharp, Ferguson, Robinson and Nelson.

FRANK D. CELEBREZZE, Chief Justice.

A trial court may dismiss an action when a plaintiff fails to prosecute under Civ.R. 41(B)(1) which provides that:

"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."

The language clearly indicates that a failure to prosecute is a ground for dismissal. Pursuant to the rule, the defendants in this case filed a motion for dismissal. The issue is whether the dismissal should have been with prejudice. Civ.R. 41(B)(3) states that:

"A dismissal under this subdivision and any dismissal not provided for in this rule, except as provided in subsection (4) of this subdivision, operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies."

Thus, the rule provides that a dismissal is an adjudication on the merits, unless the court order provides otherwise. The Staff Note states that a dismissal under Civ.R. 41(B) is a dismissal with prejudice unless the court's order affirmatively provides otherwise. In this case, the order stated that the case is "dismissed with prejudice for want of prosecution." Therefore, the trial court expressly stated "with prejudice." However, Pembaur argues that this amounted to an abuse of discretion.

The power to dismiss for lack of prosecution is within the sound discretion of the trial court, and appellate review is confined solely to whether the trial court abused that discretion. Lopez v. Aransas County Independent School Dist. (C.A. 5, 1978), 570 F.2d 541, 544. Therefore, the trial court's dismissal with prejudice will not be reversed unless it constitutes an abuse of discretion.

Civ.R. 41(B) infrequently has been the subject of judicial review in Ohio. However, we defined abuse of discretion in Klever v. Reid Bros. Express, Inc., (1951), 154 Ohio St. 491, 96 N.E.2d 781 , in paragraph two of the syllabus, as follows:

"The term, 'abuse of discretion', as it relates to an order granting a motion for a new trial, connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court in granting such motion. (Paragraph two of the syllabus in the case of Steiner v. Custer, 137 Ohio St. 448, 31 N.E.2d 855 approved and followed.)"

Although the facts in Klever concerned an order granting a motion for a new trial, the same standard can be applied to a dismissal with prejudice for lack of prosecution. Our definition of abuse of discretion in Klever was applied to a dismissal with prejudice in Schreiner v. Karson (1977), 52 Ohio App.2d 219, 369 N.E.2d 800 . The court upheld the dismissal with prejudice for the plaintiff who was not present at the trial and stated "[w]here a plaintiff totally fails to appear, * * * a dismissal with prejudice may be proper for such a failure indicates a lack of interest in pursuing the case." Id. at 224, 369 N.E.2d 800. Considering the facts in the case sub judice, the dismissal with prejudice cannot be termed unreasonable, arbitrary or unconscionable as required by Klever, supra. ³

This conclusion is supported by federal cases construing Fed.R.Civ.P. 41(b). ⁴ The United States Supreme Court concluded in Link v. Wabash RR. Co. (1962), 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734, that the trial court has the power to dismiss with prejudice based upon the plaintiff's failure to appear at a pre-trial conference. The court stated that a court has inherent power to dismiss sua sponte for lack of prosecution because of the control necessary to "manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Id. at 630-31, 82 S.Ct. at 1389.

Federal court decisions set a strict standard for appellate review of dismissal for lack of prosecution. In Finley v. Parvin/Dohrmann Co. (C.A. 2, 1975), 520 F.2d 386, a narrow standard was used. The court concluded that discretion is abused when the decision was arbitrary, fanciful or unreasonable or only when no reasonable man would take the view adopted by the trial court. ⁵ This narrow standard of review is similar to ours in Klever. Applying the standard to the case sub judice, it is clear that the trial court's...