COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67538 : DANNY C. ROTBART : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : ROBERT J. SATING, JR. M.D. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT APRIL 27, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 253892 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: WILLIAM L. BLAKE, ESQ. JOAN A. FORD, ESQ. 900 Rockefeller Building JOHN A. SIMON, ESQ. 614 Superior Avenue, N.W. JANIS L. SMALL, ESQ. Cleveland, Ohio 44113 Jacobson, Maynard, Tuschman & Kalur; Suite #1600 1001 Lakeside Avenue Cleveland, Ohio 44114-1192 -2- PATRICIA A. BLACKMON, P.J.: Danny Rotbart, plaintiff-appellant, appeals the trial court's dismissal or his malpractice action against Robert Sating, Jr., M.D., defendant-appellee. Rotbart assigns the following two errors for our review: I. THE COURT ERRED IN DISMISSING PLAINTIFF'S CAUSE PURSUANT TO RULE 41(B)(1) (FAILURE TO PROSECUTE) OF THE OHIO RULES OF CIVIL PROCEDURE. II. THE COURT ERRED IN FAILING TO GRANT PLAINTIFF'S NEWLY EMPLOYED COUNSEL LEAVE TO ANSWER DEFENDANT'S MOTION TO DISMISS WITH PREJUDICE. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. In 1974, Danny Rotbart, plaintiff-appellant, became a patient of Dr. Robert Sating, defendant-appellee. Sating, an ophthal- mologist, treated Rotbart for a condition known as "dry eyes" caused by insufficient tear production. At the time Rotbart came under Sating's care, he had a history of psychiatric problems and substance abuse. In February 1990, Sating prescribed Ophthaine, a topical anesthetic, for Rotbart's severe eye pain. Rotbart began to use increasingly higher amounts of Ophthaine. Rotbart's eyes continued to worsen and in March 1990, he went to a hospital for emergency treatment. He was diagnosed as suffering from topical anesthetic toxicity. Despite the diagnosis, Rotbart continued using topical anesthetics. Over time, Rotbart completely lost the -3- vision in one of his eyes, and the vision in his other eye was substantially diminished. Rotbart filed a malpractice action against Sating on April 2, 1992 (case no. 208471) claiming that Sating wrongfully prescribed topical anesthetics to treat Rotbart's eye condition. Rotbart dismissed the action without prejudice on July 2, 1992. The action was refiled pro se on June 18, 1993 (case no. 253892). The complaint alleged medical malpractice, defamation, negligent and intentional infliction of emotional distress, and included a claim for punitive damages. Partial summary judgment on all but the medical malpractice claim was granted on January 28, 1994. On January 21, 1994, Sating wrote a letter to Rotbart requesting a time to take the deposition of Rotbart's expert witness, ophthalmologist Peter Morse. Rotbart failed to respond to the letter. With the court's March 8, 1994 discovery cut-off date approaching, Sating sent a second letter to Rotbart on March 2, 1994, in an attempt to schedule the deposition. Sating received no response to his letter until March 14, 1994 when Rotbart contacted Sating's office and told the secretary that he was unable to locate or contact his expert. He also stated he was represented by counsel but refused to give the name of his attorney. On April 19, 1994, Sating filed a motion to dismiss Rotbart's action with prejudice. Sating argued the action should be dismissed due to Rotbart's failure to present his expert for deposition. On April 29, 1994, attorney William Blake filed a motion for extension of time to answer Sating's motion. Blake -4- alleged Rotbart had asked him to handle his case and Blake needed more time to investigate the case before agreeing to the represen- tation. On May 13, 1994, the trial court struck the motion because Blake was not the attorney of record in the case. On May 31, 1994, Blake filed a notice of appearance and another motion for an extension of time to answer Sating's motion. A final pretrial was held on June 8, 1994. Neither Rotbart nor his counsel appeared at the pretrial. On June 9, 1994, the trial court denied the motion for an extension of time and granted Sating's motion to dismiss. This appeal followed. The first issue in this appeal is whether the trial court erred in dismissing Rotbart's action for failure to prosecute. Civ.R. 41 (B)(1) provides: 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. "It is within the discretion of the trial court to dismiss an action for lack of prosecution. Accordingly, appellate review of a dismissal is confined solely to determining whether the trial court abused its discretion." Cook v. Transamerica Ins. Serv. (1990), 70 Ohio App.3d 327,330. Before we determine whether the trial court abused its discretion in granting the motion to dismiss, we must address the issue of notice. Civ.R. 41(B)(1) requires that notice be given to plaintiff's counsel before an action may be dismissed. The Civ.R. 41(B)(1) notice requirement is imposed to provide a party an -5- opportunity to show cause why the action should not be dismissed. See Cook at 330. We find the notice requirement was met in this case. The record indicates that Blake reviewed the motion to dismiss that was filed by Sating. He was aware of the possibility that Rotbart's action could be dismissed. Before granting the motion to dismiss, the court held the final pretrial conference. Furthermore, we find the trial court did not abuse its discretion in granting the motion to dismiss. Although Rotbart's complaint was filed in June 1993, he took no action toward prosecuting his claim as of the time the motion to dismiss was filed. Rotbart failed to respond to Sating's motion for partial summary judgment. He initially ignored Sating's request for an opportunity to depose his expert witness. When the court's May 8, 1994 discovery deadline passed, Rotbart still had not notified Sating of a time when the deposition of his expert could be taken. Blake did not seek a new discovery deadline after he agreed to represent Rotbart. A motion for continuance of the discovery cut- off and/or pretrial date could have been filed at the time Blake entered his appearance in the case. Despite the fact that the discovery deadline had long since passed and the trial date was less than two months away, Rotbart had made no effort to advise Sating of his witnesses. Under the circumstances, we find the trial court did not abuse its discretion in granting the motion to dismiss. Also, neither Rotbart nor his counsel attended the final pretrial conference on June 8, 1994. A trial court may order a -6- dismissal under Civ.R. 41(B)(1) where a party fails to appear on the date set for a hearing. Perotti v. Ferguson (1983), 7 Ohio St.3d 1,2. The total failure of a plaintiff to appear at a pre- trial conference has been held to indicate a lack of interest in pursuing his case. Pembaur v. Leis (1982), 1 Ohio St.3d 89,91. Blake argues he was unaware of the scheduled pretrial, but the pretrial date was set by the trial court's journal entry of November 30, 1993. The pretrial date was also mentioned in the motion to dismiss. Even if we accepted Blake's claim that he had not yet finished reading the case file, a review of the motion to dismiss should have alerted him that the pretrial date was approaching. We find Blake's inaction constituted the type of "negligent, irresponsible, contumacious, or dilatory" conduct that constitutes substantial grounds for a dismissal for failure to prosecute. Cook at 332. (citations omitted). The trial court did not abuse its discretion by granting Sating's motion to dismiss. Rotbart's first assignment of error is without merit. We must next determine whether the trial court erred in failing to grant the May 31, 1994 motion for extension of time to answer Sating's motion to dismiss. Civ.R. 6(B)(2) provides, where the motion for an extension of time is made after the expiration of the original time period, the court may grant an extension "where the failure to act was the result of excusable neglect." At the time Blake filed his May 31, 1994 motion for extension of time, the time for him to respond to Sating's motion to dismiss had expired. Therefore, in order to receive an extension of time, -7- Blake had to show that his failure to timely respond to the motion was due to excusable neglect. He attempted to accomplish this by arguing he had not yet completed his review of the case file and had not decided on his expert witness. He urged the court to grant a thirty day extension but made no effort to explain why he had not responded to the motion to dismiss. While Blake could not properly file a response to the motion until he had become an attorney of record in the case, there was no explanation for why Rotbart, who had previously been acting pro se, did not himself file a timely motion for an extension of time to respond to the motion to dismiss. The record reveals that Rotbart did, in fact, file a pro se motion for an extension of time in which to answer Sating's earlier motion for partial summary judgment. Although Rotbart sought a 45 day extension, he never filed a reply to the motion. The trial court granted the motion on January 28, 1994, over two months after Rotbart requested the extension. When taken along with Rotbart's failure to promptly answer the subsequent motion to dismiss, Rotbart's actions resulted in repeated delays of the case. Rotbart's dilatory actions, coupled with his failure to attend the final pre-trial justified the trial court's refusal of the motion for extension of time. Rotbart's second assignment of error is without merit. Judgment affirmed. -8- It is ordered that Appellee recover of Appellant his 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. Exceptions. HARPER, J., CONCUR. NAHRA, J., CONCURS IN JUDGMENT ONLY. PATRICIA ANN BLACKMON PRESIDING 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .