COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71149 RANDY MURPHY : ACCELERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION INDUSTRIAL COMMISSION OF OHIO, : et al. : PER CURIAM : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 27, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 292,900 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: E. TASSO PARIS Attorney at Law 55 Public Square, #1575 Cleveland, Ohio 44113 For defendant-appellee: DOUG S. MUSICK Assistant Attorney General State Office Bldg., 12th Floor 615 W. Superior Avenue Cleveland, Ohio 44113-1899 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. This court is asked to decide whether the trial court abused its discretion in denying a request by plaintiff's counsel to continue trial in order to secure the attendance of his incarcer- ated client and in dismissing plaintiff's case for failure to prosecute. For the reasons that follow, we find no such abuse of discretion and therefore affirm the decision of the Cuyahoga County Common Pleas Court. The record reflects that, after exhausting administrative remedies, plaintiff-appellant Randy Murphy ("appellant") filed a complaint seeking entitlement to benefits from appellee Bureau of Workers' Compensation ("appellee") as a result of allegedly con- tracting lung disease at his place of employment. This lawsuit was voluntarily dismissed by appellant on July 27, 1995, and refiled the same day. On October 30, 1995, appellant was convicted by the Geauga County Common Pleas Court and sentenced to three consecutive six-month terms of incarceration for attempted gross sexual imposition. It was during this period of incarceration that the trial in the instant case was originally set for February 26, 1996, - 3 - but continued upon motion of appellant until July 23, 1996. On 1 July 15, 1996, appellant again reportedly requested a continuance due to the unavailability of his medical expert. This motion was reportedly denied. In the transcript of the proceedings of July 23, 1996, the court referenced this motion and advised appellant's counsel that the civil rules provided for the taking of a video deposition of appellant's expert in lieu of his appearance at trial. Unpersuaded, appellant preferred to have his expert testify live and subpoenaed his presence for the date of trial. On the day of trial, appellant was not present. It is not clear from the record whether appellant's expert was present or, for that matter, any other witnesses. Counsel for appellant stated that on the day before trial, at 3:11 p.m., he filed a motion for warrant for removal of appellant so that he could be transported from the Geauga County Jail. No such motion is con-tained in the record nor is the filing recorded on the docket sheet. Appellant's counsel nonetheless made an oral motion both to continue the trial and to have the trial court issue an order to have appellant immediately removed from jail so that he could be brought to trial forthwith. The trial court denied the motion to continue. The motion for removal was denied as moot due to the denial for continuance. 1 Despite references to this motion and a subsequent order denying it, no such motion or order is contained in the record or recorded on the docket sheet. - 4 - Admonishing counsel for appellant, the trial court stated that appellant's request for continuance was due solely to counsel's own dilatory conduct in waiting until the last minute to secure appellant's attendance and in further risking the unavailability of his expert by failing to conduct a deposition. The trial court subsequently dismissed, with prejudice, appellant's case for failure to prosecute. Appellant timely appeals this decision and assigns the following error for our review: THE TRIAL COURT ERRED IN FAILING TO EITHER TO [SIC] GRANT APPELLANT'S MOTION TO CONTINUE TRIAL OR CALLING APPELLANT'S MATTER FOR TRIAL AS SCHEDULED AND SUA SPONTE DISMISSING APPEL- LANT'S MATTER FOR WANT OF PROSECUTION WHERE SAID DISMISSAL WAS FINAL GIVEN APPELLANT'S PRIOR VOLUNTARY DISMISSAL. Appellant contends that the trial court abused its discretion in denying his motion to continue trial and dismissing his case for want of prosecution when appellant was prepared to proceed to trial in the event that the motion for continuance was denied. Appellee, on the other hand, maintains that appellant was unready to proceed even in the absence of appellant, and, therefore, the dismissal was proper. The decision whether or not to continue trial is a matter within the discretion of the trial court and will not be reversed 2 by a reviewing court absent an abuse of that discretion. The same 2 Midland Steel v. U.A.W. Local 486 (1991), 61 Ohio St.3d 121, 130; Pease Co. v. Local Union 1787 (1978), 59 Ohio App.2d 238, 240. - 5 - standard of review applies to a dismissal for want of prose- 3 cution. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is "unreason- 4 able, arbitrary or unconscionable." 5 In support of his argument, appellant relies on Brown v. Best for the proposition that a court abuses its discretion when, after denying a motion for continuance, it dismisses an action without giving the plaintiff the opportunity to present whatever evidence might be available to him. Appellee maintains that appellant's reliance on this case is disingenuous as appellant's counsel had no evidence to put forth. This fact, if true, would certainly distinguish the instant case from Brown. Nowhere in the transcript of the proceedings is it clear that appellant did not have other witnesses to present or evidence to submit. As appellee points out, however, appellant's counsel did not offer to put on any evidence. Unlike Brown, counsel for appellant did not state that he was prepared to offer evidence notwithstanding the absence of his client. The record reflects that counsel simply abandoned further prosecution of the action when the motions for continuance and warrant of removal were 3 Pembaur v. Leis (1982), 1 Ohio St.3d 89, 91. 4 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 5 Brown v. Best (1974), 44 Ohio App.2d 82. - 6 - denied. As such, it cannot be said that appellant was precluded 6 from presenting his case. We recognize that a dismissal with prejudice for failure to prosecute is an extremely harsh sanction and should be reserved for situations where the conduct of a party, or his counsel, is so negligent, irresponsible, contumacious or dilatory as to provide 7 substantial grounds for such a dismissal. Here, counsel was aware that his client was incarcerated and had been for several months. Nonetheless, he waited until late afternoon the day before trial to initiate the paperwork necessary for his client's release. Similarly, counsel was aware at least one week before trial that his expert had a conflict with the trial date, yet he choose to subpoena this witness's attendance rather than secure his testimony by way of deposition. Counsel's lack of diligence in preparing his client's case for trial should not and cannot be condoned. It certainly was within the trial judge's discretion to find that counsel's conduct in waiting until the eleventh hour to secure his client's attendance was inextricably related to the unavailability of his expert on the scheduled trial date. We find such irresponsible conduct sufficient to justify a dismissal with prejudice and consequently find no abuse of discretion. 6 See Sato v. City of Brooklyn (Nov. 12, 1992), Cuyahoga App. No. 61097, unreported at 5. 7 Schreiner v. Karson (1977), 52 Ohio App.2d 219, 222-223. - 7 - Accordingly, appellant's sole assignment of error is over- ruled. - 8 - 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. JOSEPH J. NAHRA, PRESIDING JUDGE (DISSENTS WITH ATTACHED OPINION) TERRENCE O'DONNELL, JUDGE LEO M. SPELLACY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71149 -2- RANDY MURPHY, : : Plaintiff-Appellant : D I S S E N T I N G : vs. : O P I N I O N : INDUSTRIAL COMMISSION OF OHIO, : ET AL., : : Defendants-Appellees : DATE: FEBRUARY 27, 1997 NAHRA, P.J., DISSENTING: A dismissal with prejudice is an extremely harsh sanction and contrary to the fundamental preference for deciding cases on their merits. Accordingly, a dismissal for failure to prosecute must be based on sufficiently egregious conduct. Indus. Risk Insurers v. Lorenz Equip. Co. (1994), 69 Ohio St.3d 576 (attorney's conduct must fall substantially below reasonable expectation and demon- strate inherent contempt for the judicial system or the rights of opposing party); Saah v. Nationwide Mut. Ins. Co. (May 5, 1988), Cuyahoga App. No. 53816, unreported (party's conduct must be so negligent, irresponsible, contumacious or dilatory as to provide substantial grounds to dismiss). The record does not support a conclusion that appellant or his attorney engaged in such conduct despite their objectionable acts. While a trial court has broad authority under Civ.R. 41(B), such power is limited. Ohio courts have indicated that where a party has failed to appear at trial, but is represented by counsel, a trial court may not invoke Civ.R. 41(B); rather, the court must -3- permit said party to proceed through counsel and present whatever evidence can be marshalled. Brown v. Best (1974), 44 Ohio App.2d 82, 84. Accord Stegmeier v. Stegmeier (Dec. 12, 1991), Franklin App. No. 91AP-604, unreported; Stiene v. Fangman (April 23, 1990), Clermont App. No. CA89-06-052, unreported. Compare Consumers' Counsel v. Pub. Util. Comm. (1980), 64 Ohio St.2d 71 (dismissal proper where both party and counsel fail to appear). Accordingly, the trial court erred when it dismissed the case before commencement of trial. The majority opinion draws the conclusion that dismissal was proper because appellant's counsel failed to indicate that he could proceed with trial. The majority's conclusion that appellant "simply abandoned further prosecution of the action" when his motions were denied is not supported in the record. The trial court denied appellant's motions and simultaneously dismissed the case. Once the motions were denied, appellant was offered no opportunity to proceed to trial and therefore cannot be held to have abandoned the case. Further, as conceded by the majority, the record is absolutely silent with respect to appellant's ability to produce witnesses at the appropriate time. Counsel appeared at 9:05 a.m. It is clear that appellant was not present in court because he was incarcer- ated. Appellant's counsel attempted to secure his presence by requesting a warrant for removal. Although perhaps the request for a warrant should have been made earlier, there is nothing in the record to show appellant could not have been brought to court in -4- time to testify. Moreover, the record does not indicate whether appellant would have had witnesses or other evidence to present. Indeed, appellant's key witness was under subpoena to testify that day. Whether the witness would have appeared in time to present his testimony is unknown. Both the request for a warrant of removal and the subpoena for the doctor indicate counsel was prepared to proceed if the motion for a continuance was denied. The trial court's basis for dismissal rests on the assumptions that appellant's key witness would ignore the subpoena, that any effort to secure appellant's timely presence in court would be unsuccessful, and that appellant had no other evidence to submit. Such conclusions were not properly drawn at the outset of trial, before a jury had been picked, and should not support a dismissal with prejudice. Sato v. City of Brooklyn (Nov. 12, 1992), Cuyahoga App. No. 61067, unreported, cited by the majority in support of its deci- sion, is factually distinguishable. While the trial court in Sato dismissed the case for failure to prosecute, it did so only after a jury was empaneled and the plaintiff's burden to produce evidence arose. This fact is critical. A case should not be dismissed for failure to prosecute unless a party has no evidence to present when the duty to present evidence arises. .