         [Cite as Evergreen S.W. Behavioral Health Servs., L.L.C. v. Clark, 2014-Ohio-2843.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



EVERGREEN SOUTHWEST                               :          APPEAL NO. C-130149
BEHAVIORAL HEALTH SERVICES,                                  TRIAL NOS. A-1204235
LLC,                                              :                     A-1204237

        Plaintiff-Appellant,                      :
                                                                 O P I N I O N.
                                                  :
  vs.
                                                  :
MICHAEL R. CLARK,
                                                  :
  and
                                                  :
DIRECTOR, OHIO DEPARTMENT OF
JOB AND FAMILY SERVICES,     :

        Defendants-Appellees.                     :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 30, 2014


Webster & Associates, Co., LPA, Geoffrey E. Webster and Bryan M. Pritikin, for
Plaintiff-Appellant,

Jacobs, Kleinman, Seibel & McNally and Mark J. Byrne, for Defendant-Appellee
Michael R. Clark,

Michael DeWine, Ohio Attorney General, and Robin A. Jarvis, Assistant Attorney
General, for Defendant-Appellee Ohio Department of Job and Family Services.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

       {¶1}   Evergreen Southwest Behavioral Health Services, LLC (“Evergreen”),

appeals from the trial court’s judgment that adopted a magistrate’s decision that

effectively dismissed with prejudice Evergreen’s administrative appeal for failure to

prosecute. In its sole assignment of error, Evergreen argues that the trial court erred

by adopting the magistrate’s decision because the dismissal with prejudice was not

warranted and because the trial court failed to independently review the matters in

the magistrate’s decision that it had objected to.

       {¶2}    Because the trial court failed to independently review the objected to

matters in the magistrate’s decision as required by Civ.R. 53(D)(4)(d), we sustain the

assignment of error without addressing the merits of whether the dismissal was

warranted. Accordingly, we reverse the trial court’s judgment and remand the cause

for the trial court to independently review the matters.

                     I. Background Facts and Procedure

       {¶3}   Evergreen employed Michael R. Clark as an R.N. and shift supervisor.

The employment relationship eventually ended, and Clark filed a claim for

unemployment benefits. The Ohio Department of Job and Family Services (“JFS”)

allowed Clark’s application for the benefits. Evergreen unsuccessfully appealed that

decision administratively, and eventually filed an appeal in the Hamilton County

Court of Common Pleas on May 25, 2012.1

       {¶4}   The case was assigned to a magistrate. Evergreen moved for summary

judgment on August 22, 2012.        On November 5, 2012, the magistrate issued a

decision dismissing the case under Civ.R. 41(B)(1) “without prejudice” due to


1 Evergreen filed two appeals from the same decision of the Unemployment Compensation
Review Commission. Those two appeals were consolidated in the case numbered A-1204235.


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Evergreen’s failure to prosecute, because he found that counsel for Evergreen had

failed to appear in court for a case-management conference scheduled on October 11,

2012, and for an appearance or dismissal hearing scheduled on November 1, 2012.

       {¶5}    Evergreen filed timely objections to the magistrate’s decision.        It

challenged the magistrate’s determination that it had failed to prosecute, contending

that it had not received notice of the October 11 conference and that it had missed the

court’s calling of the case on November 1 because it had believed, apparently

erroneously, that the case would be called in the order listed on the court’s daily

docket.

       {¶6}    Evergreen further contended that the magistrate’s dismissal of the case

under the circumstances was erroneous as a matter of law. Evergreen noted that the

dismissal without prejudice of the administrative appeal effectively served as a

dismissal with prejudice.     See Campbell v. Valley Homes Mut., 1st Dist. Hamilton

No. C-060424, 2007-Ohio-1490; Schmieg v. Ohio State Dept. of Human Serv., 10th

Dist. Franklin No. 00AP-561, 2000 Ohio App. LEXIS 5949 (Dec. 19, 2000). It

argued that the case law did not support the imposition of that harsh sanction under

the facts of the case.

       {¶7}    In support of this argument, Evergreen quoted from Sazima v. Chalko,

86 Ohio St.3d 151, 712 N.E.2d 729 (1999), in which the Supreme Court set forth

guidelines for the trial court’s dismissal of a case with prejudice under Civ.R.

41(B)(1).   The Sazima court stated that “in considering dismissal under Civ.R.

41(B)(1), a court may properly take into account the entire history of the litigation,

including plaintiff’s dilatory conduct in a previously filed, and voluntarily dismissed,

action.” Id. at 158. The court emphasized, however, that “ ‘the extremely harsh

sanction of dismissal should be reserved for cases when an attorney’s conduct falls



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                     OHIO FIRST DISTRICT COURT OF APPEALS



substantially below what is reasonable under the circumstances evidencing a

complete disregard for the judicial system or the rights of the opposing party.’ ” Id.,

quoting Moore v. Emmanuel Family Training Ctr., Inc., 18 Ohio St.3d 64, 69, 479

N.E.2d 879 (1985). Thus, the court indicated that dismissal with prejudice should be

reserved for those cases in which the conduct of the party can be characterized as “so

negligent, irresponsible, contumacious or dilatory as to provide substantial grounds

for a dismissal with prejudice for a failure to prosecute or obey a court order.”

(Internal citations omitted).   Id.    The Sazima court warned that “absent such

extreme circumstances, a court should first consider lesser sanctions before

dismissing a case with prejudice,” noting the basic tenet of Ohio law “that cases

should be decided on their merits.” Id.

       {¶8}    In ruling on Evergreen’s objections, the trial court conducted a review

of some of the challenged facts, but then mischaracterized the objections as

concerning only “an administrative, discretionary decision of the Magistrate to

dismiss the case without prejudice for counsel’s failure to appeal,” and further stated

that the objections did not relate “to a finding of fact or a conclusion of law.”

According to the trial court, “[g]ranting the Objections under such circumstances

would effectively interfere in the Magistrate’s management and administration of his

own docket,” an act that the court “[wa]s not inclined to do absent an abuse of

discretion.”

                                      II. Analysis

       {¶9}    Our resolution of this appeal turns on the application of Civ.R.

53(D)(4)(d). This rule provides, in relevant part, that “[i]f one or more objections to

a magistrate’s decision are timely filed, the court shall rule on those objections. In

ruling on those objections, the court shall undertake an independent review as to the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



objected matters to ascertain that the magistrate has properly determined the factual

issues and appropriately applied the law.” (Emphasis added.)

       {¶10} Thus, the trial court was required to independently review the facts

related to Evergreen’s failure to appear and then determine, taking into account the

entire history of the litigation, whether the sanction of dismissal was warranted, or

whether a lesser sanction should be imposed, in accordance with the guidelines set

forth in Sazima.

       {¶11} In this case, the trial court misconstrued Evergreen’s objections and

applied an abuse of discretion standard of review to the magistrate’s decision. The

court also failed to correct the magistrate’s erroneous understanding of the effect of

the dismissal. Thus, the court overruled the objections and adopted the magistrate’s

decision without conducting the proper independent review required by Civ.R.

53(D)(4)(d).

                                  III. Conclusion

       {¶12} Based on the record, we can only conclude that the trial court did not

independently review the matters in the magistrate’s decision that Evergreen had

objected to in order to ascertain that the magistrate had properly determined the

factual issues and had appropriately applied the law. Therefore, the trial court failed

to conduct the independent review required by Civ.R. 53(D)(4)(d). Accordingly, we

reverse the trial court’s decision and remand the cause for proceedings consistent

with the law and this opinion.

                                               Judgment reversed and cause remanded.


FISCHER and DEWINE, JJ., concur.
Please note:

       The court has recorded its own entry on the date of the release of this opinion.


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