[Cite as McGrath v. Bassett, 196 Ohio App.3d 561, 2011-Ohio-5666.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96360


                                          MCGRATH,
                                                         APPELLANT,

                                                    v.


                                            BASSETT,
                                                         APPELLEE.



                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-720945

        BEFORE: Jones, J., Boyle, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: November 3, 2011
ATTORNEYS:

Joseph McGrath, pro se.

Malone Law, L.L.C., and Andrew R. Malone; and James F. Shannon, for appellee.
      LARRY A. JONES, Judge.

      {¶ 1} Plaintiff-appellant, Joseph McGrath, pro se, appeals the trial court’s

judgment dismissing his case with prejudice. We affirm.

                                  I.   Procedural History

      {¶ 2} In November 2009, McGrath, pro se, filed a complaint against

defendant-appellee, Michele Bassett, for “fraud, deceit, unjust enrichment, breach of

contract, and future damages.”    The complaint was filed in the Ashtabula County Court

of Common Pleas.     The Ashtabula County docket indicates that in early December 2009,

McGrath filed a “notification [that] plaintiff’s first set of requests for admissions were

served upon the defendant Michele I. Bassett, with service.”         Later in December,

McGrath filed a motion to deem his admissions admitted.

      {¶ 3} A January 2010 docket entry demonstrates that service of the summons and

complaint was not had on Bassett. Service was reissued, and on February 2, 2010,

Bassett filed a motion to transfer the case.   On February 4, McGrath filed a motion for

default judgment. On February 12, the court granted Bassett’s motion, and the case was

ordered to be transferred to the Cuyahoga County Court of Common Pleas.

      {¶ 4} In March 2010, the case was filed in the Cuyahoga County Court of

Common Pleas. On April 14, 2010, McGrath filed a renewal of his demand for judgment

by default. On April 19, Bassett filed a motion for leave to file an answer. Bassett’s
motion was granted, and her answer was filed on April 28. Also on April 28, McGrath

filed an opposition to Bassett’s motion for leave, and/or a motion for judgment, for

summary judgment, and to deem his requests for admissions admitted.

       {¶ 5} In May 2010, the court denied McGrath’s motion for default judgment.             In

August 2010, McGrath renewed his motions to have his admissions deemed admitted, for

summary judgment, and for judgment on the pleadings. On September 8, the trial court

denied McGrath’s motion to have his admissions deemed admitted. On September 17,

McGrath filed an “amended notification that [his] first set of requests for admissions were

served upon [Bassett] on 11-20-2009, both written and on floppy disk and [his]

notification [that] [his] first set of requests for admissions are admitted by default.”

       {¶ 6} In September 2010, the trial court denied McGrath’s motions to deem his

request for admissions admitted, for summary judgment, and for judgment on the

pleadings.

       {¶ 7} In October 2010, McGrath failed to appear at the final pretrial hearing;

Bassett and her counsel were present.           In early November 2010, McGrath filed motions to

continue the November 10, 2010 trial, for conveyance,1 for leave to file a motion for

summary judgment, for reconsideration, and for relief from judgment.           On November 9,

the court denied McGrath’s motions, with the exception of the motion to continue the trial.

       {¶ 8} A telephone conference was set for December 3, 2010.                A December 8

docket entry reads:

       1
        McGrath was incarcerated during the pendency of this case.
               The court attempted to complete the telephonic pretrial with plaintiff on
       12/03/2010 as laid out in its correspondence dated November 30, 2010 to * * * Ms.
       Katrenia Webb, unit supervisor, Lake Erie Correctional Institute [sic]. The court
       attempted to contact both Ms. Webb and Ms. Hively of Lake Erie Correctional
       Facility. Despite the Court[’s] efforts to conduct the hearing both Ms. Hively and
       Ms. Webb were unavailable. The court was therefore unable to speak with
       plaintiff Joseph McGrath. The court hereby resets the trial date for Thursday,
       January 3, 2011 at 9 a.m. There shall be no further continuances. Plaintiff is
       furthermore admonished that all pleading[s] and/or motions submitted to this court
       shall be served upon defendant’s counsel of record * * *. Failure to comply with
       these instructions shall result in plaintiff’s motions being stricken from the record.

       {¶ 9} The case was called for trial on January 3, 2011; McGrath was not present.

The trial court dismissed the case with prejudice.           McGrath appeals, raising six

assignments of error, which are set forth in the appendix.

                                    II.   Law and Analysis

       {¶ 10} McGrath contends in his assignments of error that the trial court abused its

discretion.    Two of the assignments, the third and fourth, are not reviewed for an abuse of

discretion, however.      The remaining assignments of error are reviewed under the

abuse-of-discretion standard. An abuse of discretion connotes that the court’s attitude is

arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 219, 450 N.E.2d 1140.

       A.     Claims Reviewed for an Abuse of Discretion

       {¶ 11} In his first assigned error, McGrath challenges the trial court’s denial of his

motion for default judgment.

       {¶ 12} This case was originally filed in November 2009 in the Ashtabula County

Court of Common Pleas. After service was had on Bassett in early 2010, she moved the
court to have the case transferred to the Cuyahoga County Court of Common Pleas. Her

motion was granted, and the case was filed in Cuyahoga County on March 11, 2010. On

April 19, 2010, Bassett sought leave to file her answer. At that time, McGrath’s renewed

motion for default judgment was pending.

      {¶ 13} Civ.R. 6(B) provides as follows:

             When by these rules * * * an act is required or allowed to be done at or
      within a specified time, the court for cause shown may at any time in its discretion *
      * * upon motion made after the expiration of the specified period permit the act to
      be done where the failure to act was the result of excusable neglect * * *.

      {¶ 14} Thus, “[i]f a defendant moves for leave to answer after the date the answer is

due, Civ.R. 6(B)(2) permits the trial court to grant the defendant’s motion upon a showing

of excusable neglect.”   Brooks v. Progressive Specialty Ins. Co. (July 20, 1994), Summit

App. No. C.A. 16639, 1994 WL 376768.            A trial court’s determination of whether

neglect is excusable or inexcusable “must take into consideration all the surrounding facts

and circumstances, and courts must be mindful of the admonition that cases should be

decided on their merits, where possible, rather than [on] procedural grounds.” Fowler v.

Coleman (Dec. 28, 1999), Franklin App. No. 99AP-319, 1999 WL 1262052. Ohio courts

have held that “[w]here a party pleads before a default is entered, though out of time and

without leave, if the answer is good in form and substance, a default should not be entered

as long as the answer stands as part of the record.” Suki v. Blume (1983), 9 Ohio App.3d

289, 290, 459 N.E.2d 1311; see also Fowler; Speaks v. Anderson (Jan. 21, 1988), Franklin

App. No. 87AP-780, 1988 WL 4648; Evans v. Chapman (1986), 28 Ohio St.3d 132, 135,

502 N.E.2d 1012.
       {¶ 15} The trial court did not abuse its discretion by allowing Bassett to file her

answer or by denying McGrath’s motion for default judgment. Bassett sought leave to

file her answer shortly after the case was filed in Cuyahoga County.               It was not

unreasonable to allow her to do so and attempt to proceed to the merits of the case.

       {¶ 16} In light of the above, the first assignment of error is overruled.

       {¶ 17} For his second assigned error, McGrath contends that the trial court abused

its discretion by denying his motion to deem his admissions admitted.

       {¶ 18} Civ.R. 36(A), governing requests for admissions, provides that the party

requesting the admissions “shall provide the party served with both a printed and an

electronic copy of the request for admission.      The electronic copy shall be reasonably

useable for word processing and provided on computer disk, by electronic mail, or by

other means agreed to by the parties.   A party who is unable to provide an electronic copy

of a request for admission may seek leave of court to be relieved of this requirement.”

       {¶ 19} In opposition to McGrath’s second motion to deem his requests for

admissions admitted, Bassett contended that McGrath neither provided her with an

electronic copy of his requests nor sought leave of court to be relieved of the requirement.

This court has stated that the remedy for a party who has not been properly served with a

request for admissions is to “petition the court to order compliance, not to ignore the

requirements of Civ.R. 36.” Lecso v. Heaton, Cuyahoga App. No. 94121,

2010-Ohio-3880, ¶ 30, fn. 1.       Moreover, McGrath filed an “amended notification,”

wherein he contended that he did provide Bassett with both a written and electronic
version of his request.

        {¶ 20} Notwithstanding the above, we find that the trial court did not abuse its

discretion by denying McGrath’s motion to have the admissions deemed admitted.

Specifically, the record indicates that service by McGrath was problematic.2 Further,

McGrath’s notification of service of his request for admissions was filed when the case

was before the Ashtabula County Court of Common Pleas and before service was had on

Bassett.     The “amended notification” McGrath filed when the case was before the

Cuyahoga County Court of Common Pleas was filed on September 17, 2010, six months

after the case had been pending, and after the court had denied his motion.

        {¶ 21} On this record, the trial court did not abuse its discretion by denying

McGrath’s motion to have his admissions deemed admitted. The second assignment of

error is therefore overruled.

        {¶ 22} For his fifth and sixth assigned errors, McGrath contends that the trial court

abused its discretion by denying his requests to be conveyed from prison for court

proceedings and then dismissing his complaint with prejudice for his nonappearance at

trial, respectively.    The two assignments are best considered in tandem.

        {¶ 23} An incarcerated party to a civil lawsuit has no absolute right to be present at

court proceedings: “There is no support in the Constitution or in judicial precedent for

the proposition that a prisoner has an absolute due process right to attend the trial of a civil



        2
         See the trial court’s December 8, 2010 entry admonishing McGrath to serve Bassett’s attorney with all
pleadings and motions.
action to which he is a party.” Mancino v. Lakewood (1987), 36 Ohio App.3d 219, 221,

523 N.E.2d 332.

        {¶ 24} McGrath had a history in this case of not appearing.   First, in an entry dated

October 29, 2010, the court noted that he “failed to appear at the final pretrial despite

representing to this court during the initial telephonic case management conference that he

would appear at the final pretrial.”   After McGrath’s nonappearance at the final pretrial,

the court, upon McGrath’s motion, set the case for another conference, to be done

telephonically.   The court followed McGrath’s instructions as to how he could be

reached, but the efforts were not fruitful and McGrath was therefore again not present for

the conference.

        {¶ 25} Civ.R. 41(B)(1) provides that “[w]here 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.”

“Before a trial court can dismiss a plaintiff’s case for failure to prosecute, the record must

reflect that the plaintiff had notice of the possibility of dismissal under Civ.R. 41(B)(1).

The purpose of the 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.”   Mokrytzky v. Capstar Capital Corp., Cuyahoga App. No. 91287,

2009-Ohio-238, ¶ 12, citing Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 647 N.E.2d

1361.

        {¶ 26} Here, the court put McGrath on notice in June 2010 that “failure to appear as
ordered may result in sanctions including dismissal and/or judgment.”3 McGrath then

failed to appear at both the final pretrial and a subsequent conference arranged by the court

upon McGrath’s request. On this record, the trial court did not abuse its discretion in

either denying his motion for conveyance or dismissing his case with prejudice.    The fifth

and sixth assignments of error are overruled.

       B. Claims Reviewed De Novo

       {¶ 27} In his third assignment of error, McGrath challenges the trial court’s denial

of his summary-judgment motion. In his fourth assignment of error, he challenges the

denial of his motion for judgment on the pleadings. We review both of those challenges

de novo.    See Coleman v. Beachwood, Cuyahoga App. No. 92399, 2009-Ohio-5560, ¶ 15,

33 (“We review the granting of summary judgment under a de novo standard”; “Appellate

review of the grant of a Civ.R. 12(C) motion for judgment on the pleadings is de novo”).

In a de novo review, we must independently review all legal issues without deference to

the determination of the trial court.         Id.

       1. Summary Judgment

       {¶ 28} Summary judgment is appropriate when looking at the evidence as a whole,

(1) no genuine issue of material fact remains to be litigated, (2) the moving party is

entitled to judgment as a matter of law, and (3) construing the evidence most strongly in

favor of the nonmoving party, it appears that reasonable minds could only conclude in

favor of the moving party. Civ.R. 56(C); Horton v. Harwick Chem. Corp. (1995), 73

       3
        Trial court’s June 6, 2010 judgment entry.
Ohio St.3d 679, 686-687, 653 N.E.2d 1196.

       {¶ 29} The party moving for summary judgment carries an initial burden of setting

forth specific facts that demonstrate his entitlement to summary judgment. Dresher v.

Burt (1996), 75 Ohio St.3d 280, 288, 662 N.E.2d 264.              The only evidence to be

considered in deciding summary judgment is that found in the “pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and

written stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C).

       {¶ 30} McGrath’s summary-judgment motion was based on the proposed

admissions that he sought to have deemed admitted. But the trial court did not deem

McGrath’s proposed admissions admitted, and we uphold that decision. Thus, McGrath

failed to establish that he was entitled to summary judgment. The third assignment of

error is therefore overruled.

       2. Motion for Judgment on the Pleadings

       {¶ 31} In support of his motion for judgment on the pleadings, McGrath contended

that “[i]n this case the defendant is in default across the board and the complaint with

attached photographs and requests for admissions are all admitted, thereby establishing the

plaintiff’s claims in toto.”

       {¶ 32} Unlike a motion for summary judgment, when the parties are permitted to

submit certain evidentiary materials for the court’s review, the determination of a motion

for judgment on the pleadings is restricted solely to the allegations in the pleadings and

any writings attached to the complaint.    See Peterson v. Teodosio (1973), 34 Ohio St.2d
161, 297 N.E.2d 113. Civ.R. 12(C) requires a determination that no material factual

issues exist and that the movant is entitled to judgment as a matter of law. Burnside v.

Leimbach (1991), 71 Ohio App.3d 399, 403, 594 N.E.2d 60.

       {¶ 33} Bassett was not in default.     In his complaint, McGrath alleged the existence

of a contract and breaches of the contract.     Bassett answered and denied the existence of

a contract.   Restricting review to the complaint, its attached photographs, and the answer,

the evidence was not sufficient to determine as a matter of law that there had been a

contract and breaches thereof.      Accordingly, the trial court did not err by denying

McGrath’s motion for judgment on the pleadings, and the fourth assignment of error is

therefore overruled.

                                      III. Conclusion

       {¶ 34} In sum, default judgment was not appropriate in this case because Bassett

filed an answer and the trial court’s grant of leave for her to do so was not an abuse of

discretion. Further, the trial court did not abuse its discretion by denying McGrath’s

motion to have his proposed admissions deemed admitted.

       {¶ 35} The trial court also did not abuse its discretion by denying McGrath’s motion

to convey and dismissing the complaint with prejudice. McGrath was not absolutely

entitled to be present. McGrath was advised that his case could be dismissed for his

failure to appear.   The trial court attempted to accommodate McGrath in prosecuting his

case, to no avail.

       {¶ 36} Finally, the trial court did not err by denying McGrath’s motions for
judgment on the pleadings and summary judgment.

                                                                         Judgment affirmed.

BOYLE, P.J., and ROCCO, J., concur.

                                  ___________________


                                        APPENDIX

“[I.]   The trial court abused its discretion denying the plaintiff-appellant’s motion for a
        default judgment when the defendant-appell[ee] only filed for leave to answer after
        the 2nd default judgment motion was pending and within her motion for leave the
        defendant-appellee made no showing or mention of excusable neglect or even a
        civil rule.

“[II.] The trial court abused its discretion denying the plaintiff-appellant’s motion to
       formally deem the plaintiff’s first set of requests for admissions admitted that were
       never answered by the defendant-appellee.

“[III.] The trial court abused its discretion denying the plaintiff-appellant’s motion for
        summary judgment.

“[IV.] The trial court abused its discretion denying the plaintiff-appellant’s motion for
       judgment on the pleadings.

“[V.] The trial court abused its discretion in not conveying the plaintiff-appellant to court
      for trial when a timely motion for conveyance was made.

“[VI.] The trial court abused its discretion dismissing the plaintiff-appellant’s complaint
       with prejudice when he diligently prosecuted the lawsuit and had filed a motion to
       convey.”
                                _____________________
