COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 72769 and 73138 SUSAN S. SAZIMA : : Plaintiff-Appellant : : -vs- : JOURNAL ENTRY : AND PAUL CHALKO : OPINION : Defendant-Appellee : DATE OF ANNOUNCEMENT : JUNE 4, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeals from Court of Common Pleas Case No. CV-315358 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Anne L. Kilbane, Esq. Nurenberg, Plevin, Heller & McCarthy 1370 Ontario Street - 1st Floor Cleveland, Ohio 44113-1792 For defendant-appellee: Timothy T. Brick, Esq. Gallagher, Sharp, Fulton & Norman 1501 Euclid Avenue - 7th floor Cleveland, Ohio 44115 MICHAEL J. CORRIGAN, J.: This is a consolidated appeal arising from the judgment of the Cuyahoga County Court of Common Pleas, General Division, Case No. -2- 315358, in which the trial court dismissed Susan Sazima's, plaintiff-appellant's, complaint for legal malpractice for failure to file a more definite statement in a timely manner as previously ordered by the court. Plaintiff-appellant assigns three errors for this court's review. Plaintiff-appellant's appeal is not well taken. Plaintiff-appellant's complaint alleged that Paul Chalko, defendant-appellee, breached the appropriate standard of care while representing her in guardianship proceedings. Plaintiff-appellant was attempting to establish a guardianship over her uncle, Dr. John Masters, whom she believed had fallen under the undue influence of John Nix, a financial advisor. Plaintiff-appellant's complaint had originally been filed on April 3, 1995 and assigned Case No. 287262. This case was voluntarily dismissed on September 20, 1995, without prejudice, by plaintiff-appellant pursuant to Civ.R. 41(A). Plaintiff-appellant re-filed the present case on September 17, 1996. On October 28, 1996, defendant-appellee filed a motion for a more definite statement pursuant to Civ.R. 12(E). On February 28, 1997, the trial court granted defendant-appellee's motion for a more definite statement ordering plaintiff-appellant to comply by March 14, 1997. On April 25, 1997, defendant-appellee filed two motions. The first was a motion to compel answers to outstanding discovery requests. The trial court granted this motion on May 9, 1997, through the following order: -3- Defendant's motion to compel, filed 4/25/97, is granted. Sanctions, including dismissal, may be imposed for failure to comply within two weeks of the date of this order. Vol. 2084 PG 396 NOTICE ISSUED. The second was a motion to dismiss plaintiff-appellant's complaint as a sanction for failing to comply with the trial court's prior order to file a more definite statement by March 14, 1997. This motion was based upon plaintiff-appellant's unexplained failure to file a more definite statement. On May 27, 1997, plaintiff-appellant filed a brief in opposition to defendant-appellee's motion to compel, a brief in opposition to defendant-appellee's motion to dismiss and a more definite statement pursuant to Civ.R. 12(E). On May 30, 1997, the trial court entered the following order: Defendant Paul Chalko's motion to dismiss, filed 4/25/97, is granted, pursuant to court's order filed in Vol. 2055 PG 0659 page. Plaintiff to file more definite statement by 3/14/97, and sanctions here to be imposed for failure to comply. Plaintiff has not offered an explanation for failure to timely comply. Vol. 2091 PG 127. NOTICE ISSUED. On June 13, 1997, the trial court noted further that the entry of May 30, 1997, was a dismissal with prejudice and a final order. On June 26, 1997, plaintiff-appellant filed a timely notice of appeal from the trial court's dismissal of her case with prejudice for failure to file a more definite statement in a timely manner. This appeal was designated as Appeal No. 72769. On July 7, 1997, plaintiff-appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B). Plaintiff-appellant's motion was denied by the trial court on August 12, 1997. On September 9, 1997, plaintiff-appellant filed a notice of appeal -4- from the trial court's denial of her motion for relief from judgment. This appeal was designated as Appeal No. 73138. On November 13, 1997, this court granted defendant-appellee's motion to consolidate Appeal Nos. 73138 and 72769 for purposes of appeal. The instant appeal follows. Plaintiff-appellant's first assignment of error states: I. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT WITHOUT THE REQUISITE NOTICE TO PLAINTIFF. Plaintiff-appellant argues, through her first assignment of error, that the trial court improperly dismissed her re-filed complaint with prejudice pursuant to Civ.R. 41(B)(1) without first providing adequate notice of its intention to dismiss as required by Civ.R. 41(B)(1) and this court's prior holding in Colvin v. Potts (April 18, 1996), Cuyahoga App. No. 69247, unreported. It is plaintiff-appellant's contention that the notice requirement of Civ.R. 41(B)(1) applies to all dismissals with prejudice and to involuntarily dismiss an action without notice constitutes an abuse of discretion by the trial court. Ohio Furniture Co. v. Mindala (1986), 22 Ohio St. 3d 99, 100, 488 N. E. 2d 881, 882. In Quonset Hut v. Ford Motor Co. (1997), 80 Ohio St. 3d 46, the Ohio Supreme Court recently discussed the standard to be applied to cases involving Civ.R. 41(B)(1) dismissals. The Supreme Court specifically held: We turn now to the primary issue in this case, whether Quonset's counsel received notice due under Civ.R. 41(B)(1). In Mindala, this court held that the notice requirement of Civ.R. 41(B)(1) applies to all dismissals with prejudice, including those entered pursuant to Civ.R. 37(B)(2)(c) for failure to comply with discovery -5- orders. Mindala, 22 Ohio St. 3d at 101, 22 OBR at 135, 48 N. E. 2d at 883. This Court has recently stated that the purpose of notice is to provide the party in default an opportunity to explain the default or to correct it, or to explain why the case should not be dismissed with prejudice. Logsdon v. Nickles, (1995) 72 Ohio St.3d 124, 128, 647 N. E. 2d 1361, 1365, quoting McCormac, Ohio Civil Rules Practice (2 Ed. 1992) 357, Section 1307. The record indicates that Quonset's counsel was on notice that the action could be dismissed. Quonset's counsel was aware that Ford had filed a motion requesting the court to dismiss Quonset's claim with prejudice. In fact, Quonset filed a responsive motion urging that dismissal not be granted. It is apparent that Quonset's counsel was on notice of the possibility of dismissal with prejudice. Nevertheless, the record does not indicate that Quonset or its counsel took any action to comply with the outstanding discovery order. Five days after Quonset's responsive motion, the trial court found Quonset in contempt for failing to comply with the discovery order. A full month after the trial court found Quonset in contempt, Quonset had not complied, even in part, with the discovery order. At that time, the trial court granted Ford's motion to dismiss with prejudice. We hold that for purposes of Civ.R. 41(B)(1), counsel has notice of an impending dismissal with prejudice for failure to comply with the discovery order when counsel has been informed that dismissal is a possibility and has had a reasonable opportunity to defend against dismissal. See Logsdon, 72 Ohio St. 3d at 129, 647 N. E. 2d at 1365- 1366 (Cook, J., concurring in part and dissenting in part)(the notice required by Civ.R. 41(B)(1) need not be actual but may be implied when reasonable under the circumstances). Id. at 48-49. In the case herein, a review of the record demonstrates that plaintiff-appellant clearly had implied notice that her case was subject to dismissal with prejudice for failure to timely comply with the order of the trial court that a more definite statement be filed by March 14, 1997. Not only had the trial court previously announced its intention to dismiss plaintiff-appellant's case for -6- failure to comply with outstanding discovery requests, but there was an outstanding motion to dismiss the action filed by defendant- appellee for failure to file a more definite statement as previously ordered by the trial court. In the motion to dismiss, defendant-appellee specifically requests dismissal as a sanction for plaintiff-appellant'sfailure. Under the standard set forth by the Supreme Court in Quonset Hut, supra, it is apparent that notice of dismissal with prejudice could reasonably be implied under the circumstances present here. Plaintiff-appellant repeatedly ignored orders of the trial court with little or no justification presented, including the order to file a more definite statement by March 14, 1997. The trial court was left with little alternative at that point but to dismiss the action based on plaintiff-appellant's unexplained failure to comply with the court's order in a timely manner. In addition, Civ.R. 12(E), which deals with motions for a more definite statement, provides: If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within fourteen days after notice of the order or within such time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. In this case, plaintiff-appellant failed to file a more definite statement within fourteen days of the granting of defendant-appellee's motion as ordered by the trial court. In fact, -7- plaintiff-appellant failed to file a more definite statement for approximately ten weeks after expiration of the trial court's imposed deadline of March 14, 1997. Pursuant to Civ.R. 12(E), it was within the trial court's discretion to strike the complaint or make any order it deems just under the circumstances. Given plaintiff-appellant's unexplained failure to comply in a timely manner with an order of the trial court, this court cannot now say that the trial court abused its discretion by dismissing plaintiff- appellant's complaint with prejudice. See Kenimer v. Copiers Etc. Inc. (Feb. 25, 1997), Franklin App. No. 96APE07-892, unreported. Plaintiff-appellant's first assignment of error is not well taken. Plaintiff-appellant's second assignment of error states: II. THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF- APPELLANT'S COMPLAINT AS SHE DID COMPLY WITH ITS ORDER OF MAY 9, 1997. Plaintiff-appellant maintains, through her second assignment of error, that the trial court improperly dismissed her complaint in light of the fact that she complied with all outstanding court orders on May 27, 1997 when she filed a brief in opposition to defendant-appellee's motion to compel along with responses to all outstanding discovery, a brief in opposition to defendant- appellee's motion to dismiss and a more definite statement. A review of the record from the trial court fails to support plaintiff-appellant's assertion. While she did file the pleadings in question, each was clearly out of rule and therefore not in compliance with the orders of the trial court. Initially, it must -8- be noted that plaintiff-appellant filed her brief in opposition to defendant-appellee's motion to compel sixteen days after the trial court had already granted the motion. In addition, in responding to a motion to dismiss, the party opposing the motion must respond within ten days of the filing of that motion. See Loc.R. 11(C) of the Court of Common Pleas of Cuyahoga County, General Division, Civ.R. 4 and Civ.R. 5. In this instance, plaintiff-appellant did not respond to the motion to dismiss, which was filed on April 25, 1997, until May, 27, 1997, approximately seventeen days after the motion was filed. Finally, as previously stated, the more definite statement was filed approximately ten weeks after expiration of the trial court's stated deadline of March 14, 1997, with no explanation or justification for the untimely manner in which it was filed. Clearly, plaintiff-appellant's eleventh hour attempt at perfunctory compliance with the court's orders with no showing of good cause for the undue delay does not constitute actual compliance. See Willis v. Peoples (Feb. 6, 1997), Cuyahoga App. No. 70535, unreported. Accordingly, plaintiff-appellant's second assignment of error is not well taken. Plaintiff-appellant's third and final assignment of error states: III. THE TRIAL COURT ERRED IN DENYING PLAINTIFF- APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 60(B). Plaintiff-appellant argues, through her final assignment of error, that the trial court improperly denied her motion for relief -9- from judgment pursuant to Civ.R. 60(B). It is plaintiff-appellant's position that her failure to file the more definite statement by March 14, 1997, was the result of inadvertence, not deliberate inaction, and therefore, relief should have been granted pursuant to Civ.R. 60(B)(1) since the elements for such relief as set forth by the Ohio Supreme Court in GTE Automatic Electric, Inc. v. Arc Industries, Inc.(1976), 47 Ohio St. 2d 146, 351 N. E. 2d 113, were satisfied. This appellate district has long held that, in the absence of a limited remand from an appellate court, a trial court does not have jurisdiction to rule upon a Civ.R. 60(B) motion for relief from judgment during the pendency of an appeal. Vavrina v. Greczanik (1974), 40 Ohio App. 2d 129; Dempsey v. Chicago Title Insurance Co. (1985), 20 Ohio App. 3d 90, 484 N. E. 2d 1064. In the instant case, on June 26, 1997, plaintiff-appellant filed her initial notice of appeal from the trial court's dismissal of the case. On that date, the trial court no longer retained jurisdiction to rule upon and/or vacate its prior order of dismissal. On July 7, 1997, plaintiff-appellant filed her motion to vacate judgment pursuant to Civ.R. 60(B). Without a limited remand from this court for the express purpose of ruling upon that motion, which plaintiff-appellant failed to request, the notice of appeal filed on June 26, 1997, deprived the trial court of jurisdiction to act upon the motion. Plaintiff-appellant's third and final assignment of error is not well taken. -10- Judgment of the trial court is affirmed. -11- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. JOSEPH J. NAHRA, P.J AND JOHN T. PATTON, J., CONCUR. JUDGE MICHAEL J. CORRIGAN 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 .