COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78473 EDWARD STANEK : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION PEGGY SOMERVILLE : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JULY 5, 2001 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-356664. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Clifford O. Arnebeck, Jr. 1351 King Avenue, First Floor Columbus, OH 43212 For Defendant-Appellee: John D. Sutula, Esq. Libert Pinto, Esq. 920 Terminal Tower 50 Public Square Cleveland, OH 44113 Walter H. Krohngold, Esq. Keller & Curtin Co., L.P.A. 330 Hanna Building 1422 Euclid Avenue Cleveland, OH 44115-1901 TIMOTHY E. McMONAGLE, P.J.: Plaintiff-appellant, Edward Stanek ( Stanek ), appeals the decision of the Cuyahoga County Common Pleas Court that granted a motion for sanctions filed by defendant-appellee, Peggy Somerville -2- ( Somerville ) and dismissed with prejudice his claim for malicious prosecution. For the reasons that follow, we reverse and remand. A review of the record reveals that Somerville filed a complaint in the Bedford Municipal Court on October 15, 1994 alleging that Stanek committed acts of domestic violence and assault on that date. Stanek was eventually acquitted of the charges stemming from this incident. Thereafter, on June 1, 1998, Stanek filed a two-count complaint against Somerville seeking damages for malicious prosecution and the return of property held allegedly in constructive trust. Somerville counterclaimed for assault and battery, false imprisonment and intentional infliction of emotional distress. Somerville eventually moved for and was granted partial summary judgment on Stanek's claim for constructive trust. Somerville made several attempts to depose Stanek but was unsuccessful in doing so. In particular, the record supports that Stanek was notified of depositions scheduled for June 17, 1999,1 November 11, 1999 and January 5, 2000. After several scheduling changes, trial was ultimately scheduled to go forward on January 18, 2000. On November 23, 1999, Somerville filed a motion in limine/motion for sanctions seeking to prevent Stanek from testifying at the upcoming trial. On January 18, 2000, just prior to the commencement of trial, Somerville filed a motion supplementing her previously filed motion 1Stanek was in between attorneys at the time of this scheduled deposition and responded to Somerville as to his unavailability on this date. Shortly thereafter, Stanek obtained new counsel. -3- for sanctions specifically requesting, in the alternative, that Stanek's remaining claim be dismissed pursuant to Civ.R. 37(D). A hearing was held on these motions on the morning of trial wherein one of Stanek's two attorneys2, Bartley Troy, testified as to his attempts to attain Stanek's cooperation in scheduling and appearing for his deposition. Succinctly, Attorney Troy testified that he had forwarded a copy of the initial motion for sanctions to Stanek and that he had encouraged Stanek to appear at the two most recently scheduled depositions.3 It was Attorney Troy's testimony that Stanek flatly refused to attend either scheduled deposition. In his defense, Stanek testified that he had no notice as to the scheduled depositions until shortly before they were to take place. While he testified that he saw no need to be deposed as he had been deposed already twice in this case, the record before this court does not support that statement. The court granted Somerville's motions, stating: Based on the record before me, I find that Mr. Stanek had proper notice of depositions and has refused to cooperate in providing depositions in this matter. While not all the discussions that have taken place regarding the preparation and handling of this case are on record, Mr. Stanek was ordered by this Court to submit to deposition. Instructions 2The record supports that Stanek had previously discharged two other attorneys and had retained both Attorney Troy and attorney William Saks to prosecute the instant case. From the comments made by the trial judge at the hearing, it appears that Stanek hired Attorney Saks to monitor the performance of Attorney Troy. A motion to withdraw filed by Attorney Troy was pending at the time of the hearing, which was granted within the course of the hearing. 3Attorney Troy was not representing Stanek when the June 17th deposition was scheduled. -4- were given to counsel and to Mr. Stanek to submit to deposition, and he had failed to do so. Whatever problems in communication have occurred, if they have occurred, are of Mr. Stanek's own making. I do not find his claims credible that he did not have proper notice and that he was not appropriately prepared for deposition. This case is a case replete with procedural difficulties that have interfered with the proper hearing of this trial. The matters relating to the difficulties by and large have arisen because of Mr. Stanek's difficulty in cooperating with his counsel. Mr. Stanek filed this action. He has a right to have his case heard. He has a responsibility, however, to cooperate in the preparation of the case for trial. He has the responsibility of giving deposition testimony for purposes of preparing this case for an appropriate hearing. He cannot dictate the terms upon which his deposition can be taken. I find that Mr. Stanek has failed to cooperate in the giving of a deposition, and on that basis that his claims should be dismissed with prejudice. That is a severe sanction but I think it is justified by the behavior of this litigant in this case and by the record of this case. The court thereafter journalized an entry to that effect on January 20, 2000. Because the court contemporaneously granted Attorney Troy's motion to withdraw and Stanek intimated to the court his intention not to proceed with co-counsel but rather that he would seek new counsel altogether, the court reset the trial on Somerville's counterclaim for a later date. Prior to trial and with the court's approval, however, Somerville and Stanek entered into an agreement whereby Somerville agreed to dismiss her counterclaim pursuant to Civ.R. 41(A)(2). Stanek thereafter pursued the instant appeal, assigning four errors for our review. -5- I. In his first assignment of error, Stanek challenges the trial court's decision dismissing with prejudice his claim for malicious prosecution as a sanction for his failure to submit to a deposition when he received no notice of the court's intention to issue such a harsh sanction. Civ.R. 37(D) permits the trial court to enter an order pursuant to Civ.R. 37(B)(2)(c) that would dismiss the action or any part thereof for a party's failure to attend its own deposition. Civ.R. 41(B)(1) provides for the dismissal of an action or claim for failure to comply with these rules or any court order, but only after notice to plaintiff's counsel. [T]he 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) *** . Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99, 101; see, also, Sazima v. Chalko (1999), 86 Ohio St.3d 151, 155. The decision to dismiss a case pursuant to Civ.R. 41(B)(1) is within the sound discretion of the trial court and will not be disturbed by a reviewing court absent an abuse of that discretion. Quonset Hut, Inc. v. Ford Motor Co. (1997), 80 Ohio St.3d 46, 47. A dismissal on the merits is a harsh remedy requiring the due process guarantee of prior notice. 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 -6- dismissed with prejudice.' Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 128, quoting McCormac, Ohio Civil Rules Practice (2 Ed. 1992) 357, Section 13.07. Notice, however, can be actual or implied. Quonset, 80 Ohio St.3d at 49; see, also, Sazima, 86 Ohio St.3d at 351; cf. Logsdon v. Nichols, 72 Ohio St.3d 124 (actual notice is required before a court can dismiss an action with prejudice for failure to prosecute when plaintiff and his counsel fail to appear for trial on the assigned date). As long as the party has been informed that dismissal of the action or claim is a possibility and has a reasonable opportunity to defend against the dismissal, then a court does not abuse its discretion in dismissing the action. Quonset, 80 Ohio St.3d at 49. The Quonset court reasoned that plaintiff's counsel in that case was on implied notice of the possibility of dismissal with prejudice when it was served with a motion to dismiss to that effect and plaintiff duly opposed the motion. Somerville argues that the November 1999 motion in limine or for sanctions impliedly put Stanek on notice that his claims were subject to dismissal. We disagree. This motion sought only to preclude Stanek from testifying in the upcoming trial but did request, in summary, that the court consider any other sanction this Court deems appropriate under Civil Rule 37. This statement, however, is insufficient to constitute implied notice. While the term `any other sanction' may imply dismissal, we will not allow an implication to be piled on top of another implication for purposes of implied notice under Civ.R. 41(B)(1). Sazima, 86 Ohio St.3d at -7- 156, fn. 7. Consequently, it cannot be said that Stanek received even implied notice that his claim was subject to dismissal. It was not until Somerville filed her supplemental motion on the morning scheduled for trial, January 18, 2000, that she sought dismissal with prejudice as a sanction for Stanek's repeated failure to submit to a deposition and, thus, notice could be implied at that point. As pertains to this latter motion, Stanek had no reasonable opportunity to defend against the requested dismissal since the motion was filed on the morning of trial and granted that day. See Hillabrand v. Drypers Corp. (2000), 87 Ohio St.3d 517, 519-520. We acknowledge the trial court's frustration when confronted with a litigant whose conduct is both dilatory and contumacious. Nonetheless, the procedural due process guarantee of notice protects not only the parties involved but upholds the integrity of the court as well. The trial court certainly has at its disposal the tools within which it can control a contentious and recalcitrant litigant and on remand may wish to employ them as the need arises. Stanek's first assignment of error is well taken and is sustained. II. Stanek's remaining assignments of error challenge the trial court's dismissal of his claim for malicious prosecution on the basis that the court (1) did not balance the severity of the sanction with the degree of noncompliance; (2) did not issue an order from which he did not comply; and (3) could have compelled him to report on a date certain for his deposition. Due to our -8- disposition of Stanek's first assignment of error, however, we need not address these assignments of error. See App.R. 12(A)(1)(c). The judgment of the trial court is reversed and the cause remanded. -9- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee 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. TIMOTHY E. McMONAGLE PRESIDING JUDGE MICHAEL J. CORRIGAN, J. and *JOSEPH J. NAHRA, J., CONCUR. *SITTING BY ASSIGNMENT: Judge Nahra, retired Judge of the Eighth Appellate District of Ohio. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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). .