COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59899 VINCENT A. GREENE JR., ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : UNIVERSITY HOSPITALS OF CLEVELAND: OPINION ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 20, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. 172320 JUDGMENT: MODIFIED, AND AS MODIFIED, AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: VINCENT A. GREENE, SR. 26151 LAKESHORE BOULEVARD, #208 EUCLID, OHIO 44132-1150 For Defendants-Appellees: DONNA M. CONGENI JAMES H. GROVE ARTER & HADDEN 1100 HUNTINGTON BUILDING CLEVELAND, OHIO 44115 -2- SPELLACY, J.: On July 3, 1989, plaintiffs-appellants Vincent A. Greene, Sr. and Donna L. Greene, on behalf of their mentally insane son, Vincent A. Greene, Jr., ("appellants"),/1\ filed a medical malpractice action against defendants-appellees University Hospitals of Cleveland, Dr. John B. Sawyer, and Dr. Bijan Bastani ("appellees"). Appellant-Vincent A. Greene, Sr., an attorney himself, filed the instant complaint. In their complaint, appellants alleged that appellees' course of treatment of appellant-Vincent A. Greene, Jr. was negligent, unskillful and clearly improper, because it diminished his chances for recovery from his mental illness and also prolonged his illness. Appellants further alleged that appellees' negligent conduct subjected appellant-Vincent A. Greene, Jr. to inhuman antitherapeutic treatment. On March 13, 1990, the trial court conducted a pre-trial hearing. Neither appellants nor any attorney representing appellants appeared at the pre-trial hearing. In a journal entry following the pre-trial hearing, the trial court noted that appellants failed to provide any expert reports. Thus, the trial court granted appellants leave to produce an expert report by April 13, 1990. In the same journal entry, the trial court explicitly stated that no extensions would /1\ Appellant-Vincent A. Greene, Sr. and Donna Greene are appellant-Vincent Greene, Jr.'s divorced parents. Appellant Vincent Greene, Sr. is his legal guardian. -3- be granted and that the case would be dismissed for failure to produce an expert report. The trial court then scheduled an attorneys' conference for April 30, 1990. On April 13, 1990, appellants filed a pleading entitled "Report of Expert Melvin J. Reinhart." However, Melvin J. Reinhart neither signed the document nor did he set forth his credentials and experience in his report. On April 24, 1990, appellants filed another report of expert Melvin J. Reinhart, which included revisions of the first report filed. Once again, Melvin J. Reinhart failed to sign his own expert report. Appellants did attach a Certificate of Service and Melvin J. Reinhart's "curriculum vitae" to the expert report. On April 30, 1990, the trial court conducted the attorneys' conference, but appellants failed to appear. On May 1, 1990, the trial court issued a journal entry in which it found that the reports filed by appellants failed to qualify as expert reports. The trial court then dismissed appellants' case for want of prosecution./2\ Appellants filed a timely notice of appeal and subsequently raised the following assignments of error: /2\ A dismissal for want of prosecution is "with prejudice," unless the trial court expressly states otherwise in its order. Pelunis v. G.M. & M. (1982), 8 Ohio App. 3d 194. In this case, the trial court did not state that its dismissal was without prejudice, thus, we conclude that its dismissal of appellants' case was with prejudice. -4- I. THE COURT BELOW ERRED IN DISMISSING THIS CASE WITH PREJUDICE WITHOUT GIVING PRIOR NOTICE TO PLAINTIFF AS REQUIRED BY CIVIL RULE 41(B)(1). II. THE COURT BELOW ERRED IN MAKING A HASTY DECISION TO DISMISS WITH PREJUDICE, SUA SPONTE, WITHOUT HOLDING A HEARING OR OTHER- WISE SEEKING THE INFORMATION REQUIRED FOR PROPER EXERCISE OF JUDICIAL DISCRETION. III. THE COURT BELOW ERRED IN APPLYING THE EXTREME SANCTION OF DISMISSAL WITH PREJUDICE WHERE THE RECORD SHOWS NO PATTERN OF INTENTIONAL MISCONDUCT OR CONTUMACIOUS BEHAVIOR. IV. THE COURT BELOW ERRED AND ABUSED ITS DISCRE- TION IN NONSUITING PLAINTIFF INSTEAD OF APPLYING LESSER SANCTIONS WHERE PLAINTIFF WAS IN A MENTAL INSTITUTION AND HAD NO RESPONSI- BILITY OR CONTROL OVER THE ACTIONS OF THE ATTORNEY REPRESENTING HIM IN THE SUIT. V. THE COURT BELOW ERRED IN SETTING AN ARBITRARY TIME LIMIT FOR SUBMISSION OF PLAINTIFFS' EXPERT'S REPORT WITH A THREAT OF DISMISSAL AND THEREAFTER ABUSED ITS DISCRETION BY DISMISSING THE CASE AFTER PLAINTIFFS' COUNSEL SUBMITTED SUCH REPORT AND FAILED TO APPEAR AT A PRETRIAL CONFERENCE. VI. THE COURT BELOW ERRED IN DISMISSING THIS CASE UNDER CIVIL RULE 41(B) FOR WANT OF PROSECU- TION BASED ON FAILURE TO COMPLY WITH THE COURT'S REQUEST FOR SUBMISSION OF AN EXPERT'S REPORT. Appellants' assignments of error will be discussed together, since they all pertain to the propriety of the trial court's order dismissing appellants' case for want of prosecution. Civ. R. 41(B)(1) provides as follows: (1) Failure to prosecute. 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. -5- The power to dismiss an action for lack of prosecution is within the sound discretion of the trial court. Pembaur v. Leis (1982), 1 Ohio St. 3d 89. A necessary prerequisite to a dismissal for failure to prosecute is notice of the dismissal. Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St. 3d 64. Notice need not be actual; it will be implied when it is reasonable under the circumstances. Schreiner v. Karson (1977), 52 Ohio App. 2d 219. This court is reluctant to imply notice in circumstances that result in a dismissal with prejudice. Furcello v. Klammer (1980), 67 Ohio App. 2d 156. A dismissal with prejudice is an extremely harsh sanction that should be imposed when the conduct of a party is negligent, irresponsible, contumacious or dilatory. Schreiner, supra, at 222-223. In the instant case, appellants failed to appear at two pre- trial hearings. After the first hearing, the trial court instructed appellants to file an expert report by April 13, 1990, or their case would be dismissed. Appellants did file a report of Melvin T. Reinhart, which the trial court subsequently found did not constitute an expert report. After this finding and appellants' failure to appear at the second pre-trial hearing, the trial court dismissed appellants' case with prejudice. Upon a review of the circumstances of this case, we find that the trial court was justified in dismissing appellants' case for want of prosecution. However, we further find that a less -6- severe sanction than a dismissal with prejudice was available to the trial court. We cannot say that appellants' conduct amounted to behavior that was negligent, irresponsible, contumacious and dilatory to the point that a dismissal with prejudice was warranted. Although appellants' filed a defective expert report, the record clearly demonstrates that appellants did attempt to timely comply with the trial court's order, regarding the filing of the expert report. But, appellants failed to appear at two pre-trial hearings. Based upon the harshness of the rule concerning a dismissal with prejudice, we find that appellants' conduct warranted a less severe sanction than a dismissal with prejudice. We conclude that appellants' case should have been dismissed without preju- dice. Cf. Tri-County Concrete Company, Inc. v. Mark's Cement & Petroleum Co. (Dec. 21, 1989), Cuyahoga App. No. 57723, unreported. For the foregoing reasons, we conclude that the trial court's dismissal with prejudice must be modified to a dismissal without prejudice. Accordingly, the judgment of the trial court is affirmed as modified. -7- It is ordered that appellants recover of appellees their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., AND CORRIGAN, JOHN V., J., CONCUR. (Judge John V. Corrigan, Retired Judge of the Eighth Appellate District, Sitting LEO M. SPELLACY by Assignment) JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .