COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67936 : ACCELERATED DOCKET BRIAN KARLAK : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION APOLLO HAIR CENTERS, ET AL. : : : Defendant-Appellee : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 15, 1995 CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CV-261280 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: TODD J. McKENNA FRANK SOLDAT 55 Public Square 55 Public Square #1260 #1300 Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - PER CURIAM: Appellant Brian Karlack appeals the trial court's denial of his motion for relief from a judgment entered by the trial court which dismissed his case with prejudice because his counsel failed to appear at scheduled pretrials. For the following reasons, we reverse the judgment and remand the matter for further proceedings. On November 16, 1993, appellant filed a personal injury action against appellee Apollo Hair Centers, seeking compensatory damages for hair loss and embarrassment he suffered as a result of using appellee's hair care system. The case docket reveals the relevant procedural facts: The trial court, at a Case Management Conference conducted on April 11, 1994, scheduled the matter for an initial pretrial on June 1, 1994, but appellant's counsel failed to appear. The court then rescheduled the pretrial for July 21, 1994, appellant's counsel again failed to appear, and the court rescheduled it for July 26, 1994 during a three-way telephone conference with both counsel participating. Appellant's counsel again failed to appear at pre-trial for a third time. On July 26, 1994, appellees filed a motion for sanctions and brief in support requesting the case be dismissed with prejudice. On July 27, 1994, and before appellant had an opportunity to respond to the motion, the trial court entered the following order: Plaintiff's counsel failed to appear for pretrial on July 21, 1994. Pretrial reset to July 26, 1994 at - 3 - 9:00. Plaintiff's counsel failed to appear. Case is dismissed with prejudice. Two days later, on July 29, 1994, appellant filed a Civ.R. 41(A)(1) voluntary notice of dismissal. Thereafter, appellant filed a motion for reconsideration, or in the alternative, for relief from judgment. On August 24, 1994, the court then entered this order: Court strikes plaintiff's notice of dismissal filed on 7/29/94. Plaintiff's motion to reconsider or in the alternative for relief from judgment is overruled. Appellant now appeals from the order denying his motion for relief from judgment, and has assigned one error for our review. I. THE COURT SHOULD HAVE GRANTED PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT UNDER RULE 60(B), WHERE UNDER THE CIRCUMSTANCES, THE ACTION OF DISMISSAL WITH PREJUDICE EFFECTIVELY ENDED THE CASE, WHEN OTHER LESS DRASTIC REMEDIES WERE AVAILABLE, AND PLAINTIFF HAD OTHERWISE PROCEEDED WITH PROSECUTION OF CASE. Appellant argues that the judgment entry dismissing the case with prejudice should be vacated on the basis that the trial court abused its discretion because the excusable neglect of appellant's counsel constituted grounds for relief under Civ.R. 60(B)(1) and that appellant never received the required notice under Civ.R. 41(B)(1). Appellee believes the court's dismissal with prejudice was not so unreasonable, arbitrary or unconscionable as to constitute an abuse of discretion by the court. - 4 - In a per curiam opinion in Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, at 66, the court stated: The issue to be decided on an appeal from the denial of a Civ.R. 60(B) motion for relief from judgment is whether the trial court abused its discretionary authority provided by the rule. State, ex rel. Freeman, v. Kraft (1980), 61 Ohio St.2d 284. We therefore begin our analysis with the requirements for relief under Civ.R. 60(B), as set forth by the Ohio Supreme Court in GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, at paragraph two of the syllabus: 2. To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time ***. Upon our examination of the record in this case, we find appellant timely filed a motion and affidavit which alleged sufficient operative facts to set forth a meritorious claim and which warrant relief from judgment for excusable neglect of counsel. Therefore, we conclude appellant has met the three part test of GTE. See Moore v. Emmanuel Family Training Ctr., supra; Henderson v. Bender (June 9, 1994), Cuyahoga App. No. 66423, unreported. In Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 2-3, we find the court there considered application of Civ.R. 41(B)(1) and stated: - 5 - Under these rules, there is no doubt that a trial court may, sua sponte, dismiss an action for non- appearance at a pre-trial conference. Cf. Pembaur v. Leis (1982), 1 Ohio St.3d 89. As an indispensable prerequisite to the dismissal, however, the plain language of Civ.R. 41(B)(1) requires that plaintiff's counsel be given notice of the intended dismissal. See also Svoboda v. Brunswick (1983), 6 Ohio St.3d 348 at 350: *** when the court proceeds under Civ.R. 41(B)(1) on its own motion to dismiss, it can do so only 'after notice to the plaintiff's counsel' or to plaintiff. Here, although appellee filed a motion for sanctions on July 26, 1994, appellant had no notice of the request because the service clause on the motion shows personal service on appellant's counsel on July 26, 1994, but the record reflects his failure to appear at the pretrial on that date and the court entered its ruling on July 27, 1994. The simple prerequisite to dismissal of a case for failure to appear at pre-trial is contained in Civ.R. 41(B)(1) as follows in relevant part: (1) *** Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court *** on its own motion may, after notice to plaintiff's counsel, dismiss an action or claim. (Emphasis added.) This court has previously held: "A trial court's dismissal of an action for want of prosecution, where no notice has been given to the party or party's counsel prior to dismissal, constitutes an abuse of discretion." Leonardi v. LaBrae Board of Education (December 23, 1994), Cuyahoga App. No. 94-T-5073, unreported, citing Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, - 6 - 350. Also, we find in Willis v. RCA Corp. (1983) 12 Ohio App.3d 1: Dismissal with prejudice for nonappearance at a pretrial hearing is a drastic remedy which should be used sparingly and in extreme situations. In this case, no evidence exists in the record indicating that appellant or appellant's counsel was ever notified of the court's intention to dismiss the case with prejudice for failure to attend a scheduled pretrial. Although we acknowledge that default of counsel frustrates the legitimate interest of the court in administering its docket, Civ.R. 41(B)(1) requires that, prior to dismissing a case, the court must provide notice, and failure to do so violates the rule and constitutes error. Lesser sanctions are available to the court, however, which include among others, reprimand, payment of reasonable attorney fees to opposing counsel for wasted time, or contempt. See Willis v. RCA Corp. (1983) 12 Ohio App.3d 1. For the foregoing reasons, we conclude the trial court abused its discretion in denying appellant's motion for relief from judgment. Accordingly, appellant's assignment of error is well taken, the judgment of the trial court dismissing the case with prejudice is reversed, and the case is remanded to the trial court for further proceedings. - 7 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said 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. DAVID T. MATIA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, JUDGE 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, .