COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61067 JOHN SATO : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION CITY OF BROOKLYN : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 12, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. CP-113256 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JOEL LEVIN JOHN J. McCARTHY JEFFREY A. LEIKIN Nurenberg, Plevin, Heller & McCarthy Co., L.P.A. 1370 Ontario Street First Floor Cleveland, Ohio 44113-1792 For Defendant-Appellee: TIMOTHY T. REID Reid, Berry & Stanard 1300 Illuminating Bldg. 55 Public Square Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Plaintiff-appellant, John Sato, appeals from the trial court's dismissal of his action against defendant-appellee, City of Brooklyn (the "City"), alleging deprivation of plaintiff's constitutional rights, false imprisonment, malicious prosecution, and several other torts. Plaintiff filed his original complaint against the City and several of its employees February 14, 1983. Plaintiff alleged that he was arrested by City police officers February 16, 1982 for failing to appear at a hearing scheduled for a traffic citation issued to him by the City police on January 1, 1982. Plaintiff alleged that he had been granted a continuance by a City clerk prior to the scheduled hearing and that his arrest by the City police pursuant to a bench warrant for failing to appear at the originally scheduled date was improper. Plaintiff alleged that he was incarcerated from 2:00 a.m. until 6:00 p.m. on February 16, 1982 because the City police refused to provide him an opportunity to obtain counsel or post bond. Plaintiff voluntarily dismissed the action August 11, 1985 and subsequently refiled the ten-count complaint in the case sub judice on July 11, 1986. The case ultimately proceeded to a jury trial November 27, 1989, where the jury returned a verdict against the City for $50 in compensatory damages and $30,000 in punitive damages and in favor of the remaining defendants. The trial court subsequently granted the City's motion for a new - 3 - trial. Plaintiff did not appeal from this order granting the City a new trial. The record demonstrates the new trial date was continued twice by the trial court; first as an accommodation to plaintiff and then due to a resulting scheduling conflict. The matter was ultimately scheduled for trial Monday November 26, 1990 and a jury was impaneled pursuant to a stipulation of the parties in plaintiff's absence on Friday November 23, 1990. Plaintiff's counsel participated in the proceedings without informing the trial court of any anticipated inability to produce plaintiff at trial. However, the record demonstrates that plaintiff's counsel filed two praecipes in the late afternoon of November 23, 1990 requesting the Clerk of the Court issue and serve subpoenas to plaintiff at two different local addresses to compel his attendance at trial. Plaintiff did not appear at the trial on November 26, 1990. The transcript of the proceedings indicates that plaintiff's counsel informed the trial court that counsel had been unable to contact plaintiff and the record does not contain any return indicating completed service of the subpoenas to plaintiff. After reviewing the record of the proceedings, the trial court denied a motion by plaintiff's counsel to admit plaintiff's prior deposition testimony at trial in lieu of plaintiff's testimony in person and dismissed the action with prejudice for lack of - 4 - prosecution. Plaintiff timely appeals from the dismissal of his action raising two assignments of error. Plaintiff's first assignment of error challenges the trial court's failure to admit his prior deposition testimony as a substitute for testifying in person at trial as follows: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN NOT PERMITTING APPELLANT TO USE HIS DEPOSITION AT COURT. Plaintiff's first assignment of error lacks merit. Plaintiff contends the trial court abused its discretion by refusing to permit the use of plaintiff's pretrial deposition testimony at the rescheduled trial as a substitute for plaintiff's testimony in person. Civ. R. 32(A)(3) governs the use of depositions in this context and provides in pertinent part as follows: At the trial or upon the hearing of a motion or an interlocutory proceedings, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any one of the following provisions: * * * (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: * * * (b) that the witness is beyond the subpoena power of the court in which the action is pending or resides outside of the county in - 5 - which the action is pending unless it appears that the absence of the witness was procured by the party offering the depositions; or * * * (d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; *** Based upon our review of the record sub judice, we find plaintiff failed to demonstrate sufficient grounds to admit his pretrial deposition testimony at trial pursuant to Civ. R. 32(A)(3)(b) or (d). Plaintiff's counsel offered no evidence that plaintiff was beyond the subpoena power of the trial court or resided outside of Cuyahoga County as required to admit plaintiff's prior deposition testimony pursuant to Civ. R. 32(A)(3)(b). The record demonstrates the address of record listed for plaintiff was in the City of Brooklyn, Cuyahoga County, Ohio. Moreover, the record demonstrates that each of the two addresses plaintiff's counsel disclosed when requesting subpoenas for plaintiff on the day prior to trial were in Cuyahoga County. Plaintiff's counsel made the following statement in the record concerning the whereabouts of plaintiff: MR. McCARTHY: *** I don't know where he is, that's correct. Let me just say this, that it was our information that Mr. Sato went out of town over the Thanksgiving weekend and I don't know his whereabouts. I don't have -- I haven't had any communication with him. I have communicated with his relatives and they don't know where he is at. We have searched for him and couldn't find him. (Tr. 3). - 6 - Counsel's unsworn statement that it was "our information" plaintiff "went out of state for the Thanksgiving holiday" and had not returned for trial was insufficient to satisfy this requirement and, in fact, demonstrates contrary to Civ. R. 32(A)(3)(b) that plaintiff voluntarily procured his own absence despite knowledge of the scheduled trial date. Counsel for plaintiff likewise failed to demonstrate he was unable to procure plaintiff's attendance by subpoena as required to admit plaintiff's prior deposition testimony at trial pursuant to Civ. R. 32(A)(3)(d). The record demonstrates counsel did not request the issuance or service of a subpoena to plaintiff until approximately 3:00 p.m. on Friday, November 23, 1990, which apparently made the completion of service prior to the time for appearance at 9:00 a.m. on Monday, November 26, 1990 impossible. We note that counsel for plaintiff requested service of subpoenas on six other witnesses seven days prior to his request to serve plaintiff to enable proper issuance and completion of service and the record does not contain any documentation indicating that service of either subpoena to plaintiff had been timely completed. Under the circumstances, the trial court could properly conclude counsel for plaintiff was not unable to procure plaintiff's attendance by a timely subpoena and his belated "eleventh hour" effort to subpoena plaintiff was a suspect under the circumstances. - 7 - Accordingly, plaintiff's first assignment of error is over- ruled. Plaintiff's second assignment of error challenges the trial court's dismissal of his action as follows: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DISMISSING WITH PREJUDICE HIS COMPLAINT. Plaintiff's second assignment of error lacks merit. Plaintiff contends the trial court abused its discretion by denying his motion for another continuance on the day of trial and dismissing his action for lack of prosecution. However, prior to dismissing this action, the trial court summarized the procedural posture of the case stating as follows: THE COURT: Well, the record will show that this case is replete with delays and strange behavior on the part of the plaintiff. The Court had forgotten that the case had originally been filed and then dismissed by plaintiff and then refiled. * * * [Following the order granting the City a new trial,] the case was scheduled for trial for a date certain in 1990. At that time the Court was advised by Mr. McCarthy that the plaintiff, Mr. Sato, was not available and that he did not know where he was. This is the second time this Court has been faced with that situation. At that time you [plaintiff's counsel] suggested using the deposition, to which I expressed serious reservations without having checked the law. [Defense counsel], in a spirit of generosity, agreed to a continuance and a resetting of the case for trial, and it was reset for September of this year. A week or - 8 - two prior to the date that it was set for trial, the Court contacted Mr. McCarthy and he advised the Court that he did not know where Mr. Sato was, had not been in contact with him all summer, did not expect him to be here for trial on that date and that he would be asking for a continuance. I told him to come in and we would handle the matter at that time. In the meantime, another case was scheduled for trial, and low and behold who arrived but Mr. Sato, which was a surprise to all of us because Mr. McCarthy had not thought he was going to be present. So once again the case was continued since another case had been scheduled for trial that day. The case was scheduled for trial to a date certain, namely today. With that thought in mind, in order to save time, the Court took the time last Friday to impanel a jury. Counsel agreed that their parties need not be here last week. We had no reason to assume that the parties were not available, nor did Mr. McCarthy advise us that Mr. Sato was not available or that he hadn't talked to him recently and didn't know if he would be here or not. There was no discussion about that. We have now, taken it for granted, we have now picked a jury, we have come in, plaintiff is not available, no one knows where he is. His lack of interest in the case, and this is not the first time that he has evidenced that. (Tr. 9-11). It is well-established that a trial court's determination whether or not to grant a continuance and/or dismiss an action for lack of prosecution in this context will not be reversed on appeal absent an abuse of discretion. Heard v. Sharp (1988), 50 Ohio App.3d 34. The Heard Court affirmed the denial of a - 9 - continuance and dismissal of an action under circumstances similar to the case sub judice. The Heard Court described the grounds necessary to support a motion for a continuance in this context as follows: To constitute a sufficient ground for a continuance because of the absence of a party, it must appear that the absence is unavoidable and not voluntary, that the party's presence at trial is necessary, that the application is made in good faith, and that the party will be able to attend court at some reasonable future time. Id. at 35 (quoting State ex rel. Buck v. McCabe (1942), 140 Ohio St. 535, syllabus paragraph two); see also Abrams v. Elsoffer (1988), 46 Ohio App. 3d 11. Plaintiff offered no evidence to establish that another continuance was warranted in the case sub judice. The facts supporting the denial of a continuance in the case sub judice are similar to Heard, supra, since the record contains (1) some indication counsel was aware prior to the morning of trial that his client would not attend the scheduled trial based on his belated efforts to subpoena plaintiff, and (2) no indication plaintiff would attend the trial if a continuance were granted. Id. at 36. However, the facts of the case sub judice are more egregious since plaintiff had already requested and received one prior continuance and apparently voluntarily left the state rather than attend the scheduled trial. Under the circumstances, plaintiff has failed to demonstrate the trial - 10 - court abused its discretion in denying the continuance. Heard, supra. Plaintiff has likewise failed to demonstrate the trial court abused its discretion by subsequently dismissing the action. The Heard Court stated the circumstances warranting dismissal of an action for lack of prosecution in this context as follows: 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. Id. at 35 (quoting the syllabus of Pembaur v. Leis (1982), 1 Ohio St. 3d 89). Unlike the plaintiff in Heard, supra, plaintiff in the case sub judice did not offer any colorable grounds to explain his failure to appear at the scheduled trial date. Plaintiff's citation to Brown v. Best (1974), 44 Ohio App. 2d 82, to support a contrary result is misplaced. Unlike the facts in Brown v. Best, supra, counsel for plaintiff in the case sub judice did not state that he was prepared to offer admissible evidence to sustain his burden of proving his claims notwithstanding the absence of his client. The record demonstrates plaintiff simply abandoned further prosecution of the action when the trial court ruled that counsel failed to demonstrate the admissibility of his prior deposition testimony based upon Civ. R. 32(A)(3). The record demonstrates plaintiff made no attempt to obtain testimony from any of the other - 11 - witnesses or to introduce a transcript of plaintiff's testimony given at the first trial. As a result, contrary to Brown v. Best, supra, the record does not indicate plaintiff was precluded from presenting his case. The trial court recognized that granting another continuance to locate plaintiff after impaneling the jury would cause substantial inconvenience to the court and the witnesses without any indication plaintiff would appear if the action were rescheduled. Under the circumstances, the trial court could properly take notice of the extended delay and plaintiff's lack of diligence in the proceedings, therefore, plaintiff has failed to demonstrate any abuse of discretion in dismissing the action. Heard v. Sharp, supra. Accordingly, plaintiff's second assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas 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. DYKE, P.J., CONCURS; FRANCIS E. SWEENEY, J., DISSENTS (See Dissenting Opinion, Francis E. Sweeney, J., attached) JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61067 JOHN SATO : : Plaintiff-appellant : : DISSENTING OPINION vs. : : CITY OF BROOKLYN : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 12, 1992 FRANCIS E. SWEENEY, J., DISSENTING: I respectfully dissent from the majority for the reason that I believe the trial court's dismissal with prejudice should be modified to a dismissal without prejudice. Dismissal with prejudice for nonappearance is a drastic remedy which should be used sparingly and in extreme situations. Willis v. RCA Corp. (1983), 12 Ohio App.3d 1, at syllabus. Unless a party's conduct is so negligent, irresponsible, contu- macious, or dilatory as to provide substantial grounds for dis- missal with prejudice, a court should consider lesser sanctions when a party fails to appear at a hearing. Id. - 2 - In the present case, there was no showing that appellant's failure to appear at trial was intentional or negligent. Fur- thermore, plaintiff's counsel was present and ready to proceed with trial using appellant's deposition testimony as a substitu- tion for his own oral testimony under Civ. R. 32(A)(3)(b). Based on the above facts, I find that the trial court's dismissal with prejudice was too harsh a penalty and that the circumstances here did not justify an order that plaintiff be forever denied his day in court. Accordingly, I would modify the dismissal with prejudice to a dismissal without prejudice and, as modified, I would affirm the trial court's judgment. .