COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69740 CONNIE CIECIERSKI : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION DANNY SCOTT, ET AL. : : Defendants-Appellees : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION MAY 2, 1996 CHARACTER OF PROCEEDING Civil appeal from Bedford Municipal Court Case No. 95-CVI-2209 JUDGMENT Reversed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: CONNIE CIECIERSKI, PRO SE DANNY SCOTT, PRO SE 2601 Snow Road FAYE SCOTT, PRO SE Parma, Ohio 44134 824 McKinley Street Bedford, Ohio 44146 - 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 Connie Ciecierski, appearing pro se, appeals from the dismissal of her claim in the Small Claims Division of the Bedford Municipal Court for failure to prosecute and the award of $1,233 in favor of defendants-appellees Danny and Faye Scott on their counterclaim against her. We find merit to the appeal and reverse for the reasons hereinafter stated. Ms. Ciecierski, who formerly lived with the Scotts, filed a complaint in the small claims division against the Scotts on July 28, 1995 seeking $2,000 on the alleged grounds that they would not release her household furniture to her and had sold same. The claim was set for trial on September 5, 1995 at 1:30 p.m. The Scotts counterclaimed for $2,000 for three months rent, furnishing food and utilities, storage of furniture, moving costs, mental strain and lost wages for attending court. Ms. Ciecierski contends she was incarcerated in the County Jail from September 2, 1995 until her release at 2:15 p.m. on September 5, 1995, the date of the small claims trial. She alleges her husband called the Bedford Municipal Court repeatedly advising that she may not be released in time to attend the trial. She argues that she was scheduled to be released from jail at 9:00 a.m., but that her release was delayed due to the holiday. She also asserts - 3 - that the trial court was aware of her release date. The trial proceeded without plaintiff. The Magistrate recommended that plaintiff's complaint be dismissed for lack of prosecution and awarded $1,233 plus interest to defendants on their counterclaim. On September 6, 1995, plaintiff filed objections to the magistrate's report and pointed to her incarceration as preventing her from appearing to prosecute her claim and defend against the counterclaim. The trial court adopted and approved the magistrate's report on September 20, 1995 and denied plaintiff's motion to vacate and for reconsideration on October 4, 1995. A timely pro se appeal was filed. The sole error assigned is the trial court's failure to reschedule the small claims trial. Whether to grant a continuance is within the discretion of the trial court. State v. Sowders (1983), 4 Ohio St.3d 143, 144, citing Unger v. Sarafite (1964), 376 U.S. 575, 589-590. "A party has a right to a reasonable opportunity to be present at trial and a right to a continuance for that purpose." Hartt v. Munobe (1993), 67 Ohio St.3d 3, 9. In considering a request for a continuance, the court is not required to apply a mechanical test, but rather must consider the "unique facts of each case." State v. Unger (1981), 67 Ohio St.2d 65, 68. Having carefully reviewed the whole record, we find that it was an abuse of discretion not to continue the trial of this matter to allow plaintiff to present her claims and defend against the - 4 - defendants' counterclaims. It is undisputed that plaintiff was not released from the County Jail until 2:15 p.m. on the day of trial and that the trial commenced in Bedford at 1:30 p.m. on that date, thereby precluding plaintiff from prosecuting her claim and defending against the counterclaim. The record also reveals that the trial court was aware of plaintiff's predicament, but chose to proceed without her. Under R.C. 1925.12: "If the plaintiff does not appear at the time set for trial, the court may dismiss the claim for want of prosecution, or enter a finding on the merits for the defendant, or make such other disposition as may be proper." An involuntary dismissal under Civ. R. 41(B)(1) and (4) for failure to prosecute "operates as an adjudication on the merits unless the court in its order of dismissal otherwise specifies." Given plaintiff's inability to attend the trial due to circumstances beyond her control, this is far too drastic a remedy. "[T]he court should not order a dismissal with prejudice unless plaintiff's 'conduct *** is so negligent, irresponsible, contumacious or dilatory as to provide substantial grounds for [such] a dismissal.'" Willis v. RCA Corp. (1983), 12 Ohio App.3d 1,2. A Civ. R. 41(B) dismissal is an extremely harsh sanction that should "be granted only when an attorney's conduct falls substantially below what is reasonable and displays contempt for the judicial system or the rights of the opposing party." Indus. Risk Insurers v. Lorenz Equip. Co. (1994), 69 Ohio St.3d 576, 581. - 5 - An abuse of discretion will be found if the lower court's ruling evidences an unreasonable, arbitrary or unconscionable attitude. Rock v. Cabral (1993), 67 Ohio St.3d 108, 112; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Nothing in the record suggests that plaintiff was intentionally dilatory or irresponsible in maintaining her claim. In Laguta v. Sericko (1988), 48 Ohio App.3d 266, 267, the court found that where the plaintiff is not represented by counsel and is incarcerated, the courts "shall pursue avenues other than dismissal for want of prosecution in order to ensure that those claims so deserving be adjudicated on their merits." See, also, In re Atkins (1990), 67 Ohio App.3d 783; Perry Walker v. Greater Cleveland Regional Transit Authority (March 18, 1993), Cuyahoga App. No. 64245, unreported. Plaintiff's sole assignment of error is well taken. Dismissal of the complaint and judgment on the counterclaim in the amount of $1,233 are reversed; the case is remanded to the trial court for a new trial on the complaint and counterclaim. - 6 - It is ordered that appellant recover of appellees her 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 Bedford Municipal 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. LEO M. SPELLACY, CHIEF JUSTICE 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 .