COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68573 KEITH W. RUCKER : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CVELBAR BODY AND PAINT CO. : dba MAACO AUTO PAINTING AND : BODYWORKS CENTER : PER CURIAM : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION DECEMBER 7, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 240327 JUDGMENT Reversed and remanded. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: PETER LAWSON JONES, ESQ. JOSEPH W. PAPPALARDO, ESQ. 1228 Euclid Avenue TIMOTHY G. WARNER, ESQ. Suite 800 Gallagher, Sharp, Fulton Cleveland, Ohio 44115-1800 & Norman Bulkley Building, Seventh Floor 1501 Euclid Avenue Cleveland, Ohio 44115 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Plaintiff-appellant Keith W. Rucker appeals from the trial court's denial of his Civ. R. 60(B) motion to vacate its order dismissing plaintiff's case with prejudice against defendant- appellee Cvelbar Body and Paint Co., d.b.a. MAACO Auto Painting and Bodyworks Center ("MAACO") when plaintiff and his counsel failed to appear for trial. Plaintiff contends the trial court abused its discretion in failing to grant the relief. We find merit to the appeal and reverse. The procedural background of this case is as follows. On October 8, 1992, plaintiff sued MAACO for breach of contract and negligence in failing to properly paint and repair his 1984 Chevrolet Camaro Z28. Plaintiff also asserted unfair, deceptive acts and practices in violation of R.C. 1345.02(B)(2) and (10). On March 2, 1993, plaintiff filed a motion for default judgment for defendant's failure to answer. On March 15, 1993, MAACO filed its motion for leave to file answer instanter which was granted March 19, 1993. Plaintiff's motion for default judgment was denied on April 14, 1993. A case management conference, at which all parties were present, was held April 16 and a discovery cut-off of July 13, 1993 was set. On July 15, 1993, the trial court referred the matter to arbitration. The arbitration hearing was held on December 6, 1993. - 3 - The arbitrators found for plaintiff in the amount of $370 plus costs. On January 10, 1994, plaintiff filed a notice of appeal de novo to the Common Pleas Court. All parties were represented at a pretrial conference on February 18, 1994. A second pretrial in the action was scheduled for March 18, 1994. Plaintiff's counsel did not attend the conference despite postcard notice of same. Defendant's oral motion for sanctions was granted. A third pretrial was held on April 5, 1994, at which all parties were present. A trial date of November 21, 1994 was set. On November 21, neither plaintiff nor his counsel appeared for trial and the trial court dismissed the case with prejudice on November 22, 1994 with the following entry: Case ste for TR. Deft. and counsel present. Pltf. and/or counsel failed to appear after being notified in person on 4-5-94 and by postcard. Case dismissed, w/prej. as pltf's counsel has previously failed to appear for pretrial after being notified. The record does not contain any notice or prior indication to plaintiff that his case was going to be dismissed. On December 13, 1994, plaintiff filed a Civ. R. 60(B) motion to vacate the order dismissing the case on grounds of inadvertance or excusable neglect. Counsel for plaintiff was nominated to run as candidate for lieutenant governor of the State on the Democratic ticket; he spent most of 1994 travelling and campaigning throughout Ohio and misplaced his November calendar. He had three trials or hearings on November 21, 1994 and forgot about the one in the instant case. - 4 - He offered to pay defense counsel's fees for the inconvenience or asked that the order be amended to state without prejudice. Plaintiff's motion to vacate was denied on January 9, 1995 and this timely appeal ensued. Plaintiff's sole assignment of error is that the trial court abused its discretion by denying plaintiff's motion to vacate the order dismissing the case for plaintiff's failure to show up for trial. The requirements necessary for a motion seeking relief from judgment have been set forth in paragraph two of the syllabus of GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146: 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, and, where the grounds for relief are Civ. R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. Civ. R. 60(B) provides in pertinent part: (B) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; *** or (5) any other reason justifying relief from the judgment. *** The issue in this appeal from the denial of a Civ. R. 60(B) motion for relief from judgment is whether the trial court abused - 5 - its discretion. Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 66; Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. The law does not favor dismissals by default any more than it favors default judgments. "Fairness and justice are best served when a court disposes of a case on the merits. Only a flagrant, substantial disregard for the court rules can justify a dismissal on procedural grounds." Dehart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189, 193. Therefore, it is a basic tenet of Ohio Jurisprudence that cases should be decided whenever possible on their merits after giving all parties their day in court. Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App.3d 578, 583 citing Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3; Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175. This was recognized by this Court soon after the advent of the new Ohio Rules of Civil Procedure in 1970 and consideration of Civ. R. 60 which was patterned after its federal counterpart. In Antonopoulos v. Eisner (1972), 30 Ohio App.2d 187, 199, Judge Silbert exhaustively analyzed the new Ohio rule and its federal and state antecedents, and concluded: Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits. [Citations omitted.] - 6 - This is particularly so, as these cases serve to further illustrate, where (1) no substantial prejudice would result to the party in opposition, or (2) the amount of the judgment taken by default is substantial in comparison with any resulting prejudice which, moreover, may be largely minimized in particular cases through the exercise of the trial court's power to impose or condition relief upon just terms. Consequently, while the stability of judgments is adequately protected, the harsh and perhaps unjust burden of enforcing a default judgment may often and should be avoided -- this being the essential reasoning underlying the rule frequently stated by the federal courts that, where a substantial sum of money is involved, a default judgment should be set aside, unless such a result is not reasonably avoidable. The courts have repeatedly adhered to those basic principles since that time. We have no problem determining that the plaintiff has met two parts of the GTE test, i.e., he has presented a meritorious claim and has moved in a timely fashion to seek relief from the dismissal. A meritorious claim is evidenced by the previous arbitration award in favor of plaintiff from which he appealed de novo. Simon v. Designer's Products, Inc. (July 2, 1992), Cuyahoga App. No. 63004, unreported at 5. The case was dismissed on November 22, 1994. Plaintiff's counsel learned of same on November 29. Plaintiff's counsel moved promptly to seek relief on December 13, 1995. His motion was timely under Civ. R. 60(B). - 7 - The critical issue on this appeal is whether plaintiff's explanation for failing to show up for the trial on November 21, 1994 constituted excusable neglect or inadvertence within the meaning of Civ. R. 60(B)(1). We are guided by the perception of excusable neglect set forth in Katko v. Modic (1993), 85 Ohio App.3d 834, 837: What constitutes "excusable neglect" depends on the facts and circumstances of each case. The concept of "excusable neglect" is a remedial rule and is to be liberally construed, while bearing in mind that Civ. R. 60(B) constitutes an attempt to "strike a proper balance between the conflicting principles that litigation must be brought to an end and justice should be done." Blankenship v. Honda/Isuzu (Mar. 27, 1987), Portage App. No. 1669, unreported, at 3, 1987 WL 9128, citing Colley v. Bazell (1980), 64 Ohio St.2d 243, 18 O.O.3d 442, 416 N.E.2d 605. Also, GTE states that neglect is not "excusable" when it constitutes "a complete disregard for the judicial system and the rights of the appellee." Id., 47 Ohio St.2d at 153, 1 O.O.3d at 90, 351 N.E.2d at 117. There is no evidence here that the plaintiff or his counsel showed a complete disregard of the judicial system or the rights of the defendant. They offered to pay defendant's expenses for showing up on the November 21 trial date. On February 18, 1994, plaintiff's counsel was selected by the leading Democratic gubernatorial candidate to be his running mate for lieutenant governor of Ohio. During the ensuing months leading up to the November election, counsel travelled and campaigned throughout the state and was outside Cuyahoga County almost daily while frequently putting in 16 hour work/campaign days. - 8 - At some point, plaintiff's counsel misplaced his November calendar, on which was listed the subject trial. Following the election, he reconstructed his November schedule as best he could from notes and memory; he established the fact that he did have three hearings scheduled for November 21, 1994 in the following matters: State of Ohio v. Charles Underwood, Cuyahoga County Common Pleas Court Case No. CR286003 at 9:00 a.m.; Gwendolyn Rice v. David Lighty, Cuyahoga County Common Pleas Court, Domestic Relations Division Case No. D230345 at 10:00 a.m.; and Bell Atlantic Tricontinental Leasing Corporation v. Rosemary Evans dba Evans Learning Center, Cleveland Municipal Court Case No. 93-CVF- 14886 also at 10:00 a.m. His entire day was devoted to handling said matters. He did not become aware of the missed court date in the instant case until he was later advised that the case had been dismissed with prejudice. The missed trial date was an unfortunate casualty of counsel's hectic and demanding 1994 campaign schedule. It is understandable that mistakes could occur and that he misplaced November's calendar. Although he was able to establish the fact that he had three other hearings on November 21, 1994, he did not recollect that the instant action had been scheduled for trial on that date. This conduct on his part did not signify any disrespect or disregard of the court or his opponent. He missed the trial date due to inadvertence or excusable neglect. The trial court's sanction of dismissal with prejudice was an abuse of discretion. - 9 - Lesser, more proportionate penalties were available and would have been appropriate. As this Court has previously stated: Dismissal with prejudice for nonappearance is a drastic remedy which should be used sparingly and in extreme situations. The court has a wide variety of lesser sanctions available, including (1) a reprimand by the court; (2) a finding of contempt; (3) an order prohibiting the party or attorney from appearing in that court without different counsel in the future; and (4) a dismissal without prejudice. Willis v. RCA Corp. (1983), 12 Ohio App.3d 1, 2-3. See, also, Ford Motor Credit Co. v. Potts (1986), 28 Ohio App.3d 93, 95; Cook v. Transamerica Ins. Serv. (1990), 70 Ohio App.3d 327. Said holding is merely in keeping with the "longstanding belief that the interests of justice are better served when Ohio's courts address the merits of claims and defenses at issue." Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d at 70. Moreover, in that a dismissal with prejudice acts as a determination on the merits with collateral estoppel and res judicata effects, such a sanction must be employed with exceeding discretion, i.e., only when a party's "conduct *** is so negligent, irresponsible, contumacious or dilatory" as to justify its imposition. Schreiner v. Karson (1977), 52 Ohio App.2d 219, 223. We also note that the trial court failed to serve notice on plaintiff's counsel that failure to appear at trial would result in dismissal with prejudice. We cannot say that the court's failure to give such notice was not without effect. - 10 - Rule 41(B)(1) of the Ohio Rules of Civil Procedure reads: 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. (Emphasis added.) Ohio's courts have consistently ruled that the failure to give such prior notice is critical and constitutes reversible error. Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 128 ("it is error for the trial court to dismiss plaintiff's case without notice for failure to prosecute when plaintiff and his counsel fail to appear for trial on the assigned trial date" citing McCormac Ohio Civil Rules Practice [2 Ed. 1992, 356-357, Section 13.07]); Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99, 101; Perotti v. Ferguson (1983), 7 Ohio St.3d 1 syllabus; Rankin v. Willow Park Convalescent Home (1994), 99 Ohio App.3d 110, 112; McCann v. Lakewood (1994), 95 Ohio App.3d 226, 248; Shoreway Circle v. Gerald Skoch Co. (1994), 92 Ohio App.3d 823, 830. As is stated in Perotti v. Ferguson, supra, at 3, the notice requirement exists to insure that, to the extent possible, cases are decided on the merits and that a party facing dismissal is given the opportunity to obey the court order of which he or she stands in violation by either curing the defect, proceeding with the matter or dismissing his or her action voluntarily and, thus, without prejudice. For the foregoing reasons, we sustain the plaintiff's assignment of error, reverse the order dismissing the case and remand for further proceeding according to law. - 11 - It is ordered that appellant recover of appellee 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 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. SARA J. HARPER, PRESIDING JUDGE JAMES M. PORTER, JUDGE TIMOTHY E. McMONAGLE, 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 .