[Cite as Garcia v. Newark Builders Supply, Inc., 2013-Ohio-4230.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



EZEQUIEL CELAYA GARCIA, et al.                             JUDGES:
                                                           Hon. William B. Hoffman, P. J.
        Plaintiffs-Appellants                              Hon. John W. Wise, J.
                                                           Hon. Patricia A. Delaney, J.
-vs-
                                                           Case No. 13 CA 27
NEWARK BUILDERS SUPPLY, INC.,
dba NBS SYSTEMS, et al.

        Defendants-Appellees                               OPINION




CHARACTER OF PROCEEDING:                               Civil Appeal from the Court of Common
                                                       Pleas, Case Nos. 2005 CV 01461 and 2005
                                                       CV 01460

JUDGMENT:                                              Reversed and Remanded


DATE OF JUDGMENT ENTRY:                                September 25, 2013


APPEARANCES:

For Plaintiff-Appellant Garcia                         For Defendant-Appellee Newark

JAMES MALEK                                            DAVID A. HERD
DOUG MALEK                                             JOHN NEMETH
ED MALEK                                               21 East Frankfort Street
1227 South High Street                                 Columbus, Ohio 43206-1069
Columbus, Ohio 43206-3445
                                                       For Defendant-Appellee Jefferson

                                                       RICHARD BROWN
                                                       10 West Broad Street, Suite 1300
                                                       Columbus, Ohio 43215-3419
Licking County, Case No. 2013 CA 00027                                                   2

Wise, J.

      {¶1}   Plaintiff-Appellant Ezequiel Celaya Garcia appeals the judgment of the

Licking County Court of Common Pleas granting the motion to dismiss filed by

Defendant-Appellee, Newark Builders Supply, Inc.

                       STATEMENT OF THE CASE AND FACTS

      {¶2}   The facts, as set forth in the prior appeal in this case, are as follows:

      {¶3}   The Court first notes the majority of the testimony about the relevant

activities that occurred on November 29-30, 2003, comes from Ezequiel Celaya Garcia,

the sole survivor of the incident described below.

      {¶4}   Edgar Noe Romero (“Romero”), Luciana Balderas (“Balderas”) and

Ezequiel Celaya Garcia (“Garcia”) were citizens of Mexico who together came to work in

the United States. The three men came to Columbus, Ohio and found jobs in the

construction field. Garcia and Romero worked as independent contractors in the roofing

industry, while Balderas had performed drywall work.

      {¶5}   In the evening of Saturday, November 29, 2003, Romero dropped Garcia

and Balderas off at the International Ballroom, a drinking establishment. While at the

International Ballroom, Garcia and Balderas met Jorge Luis Quintero AKA Jesse Perez

(“Perez”). The men began consuming alcohol; Perez and Garcia did some cocaine

together. Balderas and Perez discussed their similar work with drywalling.

      {¶6}   At 2:00 a.m. on Sunday, November 30, 2003, the three men left the

International Ballroom. Balderas called Romero from a cell phone and asked Romero

to come and give Balderas and Garcia a ride home. Perez asked Romero to give him a

ride to his truck parked at a residential construction site located at 186 Applewood
Licking County, Case No. 13 CA 27                                                          3


Drive, Pataskala, Licking County, Ohio. Romero agreed to drive Perez to his truck. On

route to the site, the men stopped at a gas station where Perez purchased a 12-pack of

beer.

        {¶7}   The property located at 186 Applewood Drive, also known as Lot 24, is the

site of a residence being constructed by Jefferson Homes, a building company. As part

of the construction process, Jefferson Homes hired Newark Building Supply, Inc.

(“NBS”) as an independent contractor to complete the dry walling. In order to do some

of the dry walling, the workers require electricity to use their tools. Donald J. Wilson, Jr.

(“Wilson”), the supervisor for NBS, testified through deposition that a NBS employee

dropped off a gasoline-powered generator at 186 Applewood Drive because electricity

had not yet been connected to the work site. Wilson stated that the generator was to be

placed in the house so that the generator could not be stolen, but he did not tell the

workers exactly where in the house to place the generator.

        {¶8}   Wilson testified that NBS hired Perez as a subcontractor to sand the

drywall at 186 Applewood Drive. Wilson assigned the job to Perez on November 28,

2003, and estimated that the sanding work would only take four to five hours to

complete. Wilson stated that Perez told him that he would do the sanding on Saturday,

November 29, 2003, and Wilson expected Perez to complete the sanding that

afternoon. Wilson was to inspect the sanding on December 1, 2003. Wilson further

stated that Perez would not require any electricity to complete the sanding aspect of the

dry walling.

        {¶9}   Romero, Balderas, Garcia, and Perez arrived at 186 Applewood Drive

between 3:30 a.m. and 4:00 a.m. on that Sunday morning.              When they arrived at
Licking County, Case No. 13 CA 27                                                         4


Perez’s truck parked at the site, Perez invited the men into the house to see the work

Perez had been doing on the house. Garcia testified that he did not go into the house

to perform any work.

       {¶10} Perez went to the back of the house and opened the front door for the

other three men to come in. Garcia saw that Perez turned on a light in the house and

also plugged in a kerosene heater on the main floor. Garcia testified that he heard the

sound of a generator, but it sounded far from him.

       {¶11} After Perez turned the light on in the house, Romero, Perez and Balderas

began talking. Perez picked up a dry walling instrument and tried to polish a wall.

Garcia saw Perez hand the tool to Romero and Romero began to use the tool. Perez

also gave his phone number to Balderas.

       {¶12} Garcia wanted to leave shortly after arriving at the house because he was

tired and wanted to sleep. He asked his friends to leave, but they continued talking. At

approximately 4:00 a.m., Garcia went to a different part of the house and went to sleep.

       {¶13} Around 8:00 a.m. or 9:00 a.m. that same Sunday morning, Marco Bravo

(“Bravo”) testified during deposition that he arrived at the construction site to complete a

dry walling job on Lot 25, the house next door to 186 Applewood Drive. Bravo required

electricity to complete his dry walling task, but the house he was working on did not

have electricity connected to it nor was there a generator on the premises. Bravo knew

there was a generator at 186 Applewood Drive located in the basement. Bravo crawled

through a basement window and found the running generator in the basement, chained

to a pole. Bravo added more gasoline to the running generator. He unplugged a cord

from the generator and plugged his extension cord in.           Bravo came up from the
Licking County, Case No. 13 CA 27                                                      5


basement to the first floor of 186 Applewood Drive. He saw men sleeping there and

heard them loudly snoring.

       {¶14} After running the extension cord from 186 Applewood Drive to the house

he was working on, Bravo worked with a helper he had hired himself to help him hang

drywall. Wilson testified during deposition that it was common practice for the

contractors to hire helpers to aid them in finishing a job. The contractor would pay the

helper out of his own funds. When Bravo and his helper finished their work later that

afternoon, the helper went to 186 Applewood Drive to turn off the generator. The helper

told Bravo that when he came into the house, one of the men in the house told him to

leave the generator on, so the helper did not turn it off.

       {¶15} Sometime on Sunday night, Garcia believed that he woke up and was

unable to move his right arm or walk. He crawled to the front door and opened it. The

next thing he remembered was being awakened by the ringing of Romero’s cell phone.

It was Monday morning, December 1, 2003. Garcia crawled to Romero, got the cell

phone and answered it. He told the caller that he could not stand up and he couldn’t get

his friends to answer.

       {¶16} Garcia called out for help and a worker outside installing gutters heard his

voice. At the same time, Wilson arrived at the site. The worker motioned Wilson into

the house. Wilson testified that when he came into the home, he did not immediately

see the men; he began walking through the house to look for Perez because Wilson

saw his truck parked at the house. He then walked down into the basement because he

saw electrical cords running down to the basement. While in the basement, he checked

the gas in the generator because the house was very cold.         When he came back
Licking County, Case No. 13 CA 27                                                      6


upstairs, he saw the men lying in the great room of the home and called 911. Wilson

saw empty beer bottles on the floor and disposed of the bottles in a dumpster. While

walking through the house, Wilson testified that he saw that none of the sanding had

been completed.

      {¶17} When the emergency personnel arrived at the home site, Balderas,

Romero and Perez were dead from carbon monoxide poisoning. Garcia survived but

suffered serious injuries. An investigation determined that the men had perished from

carbon monoxide produced by the gasoline-powered generator in the basement.

      {¶18} On November 28, 2005, Plaintiffs Maria Hernandez (Administrator of the

Estate of Luciana Balderas), Ana Garcia (Administrator of the Estate of Edgar Noe

Romero), and Ezequiel Celaya Garcia re-filed two complaints against NBS and

Jefferson Builders, Inc.1   The trial court consolidated the cases for discovery and

summary judgment purposes. NBS and Jefferson Builders, Inc. filed motions for

summary judgment which the trial court granted in a joint entry on October 9, 2006.

      {¶19} On November 6, 2006, Plaintiffs appealed from the decision granting

summary judgment in favor of NBS. By Judgment Entry and Opinion filed August 17,

2007, this Court found summary judgment was inappropriate in this matter, reversed the

trial court’s decision and remanded the matter back to the trial court for further

proceedings consistent with this Court’s decision.

      {¶20} On September 10, 2007, Defendants appealed this Court’s decision to the

Ohio Supreme Court and the trial court stayed the case.




1
 Both cases were initially filed in early 2005, dismissed and re-filed later in the year.
(March 7, 2013, Judgment Entry)
Licking County, Case No. 13 CA 27                                                      7


       {¶21} On January 23, 2008, the Supreme refused to hear Defendants’ appeal

and dismissed the appeal.

       {¶22} The trial court was never notified of the Supreme Court’s decision, the

stay was never lifted and the case was never placed back on the trial court’s active

docket.

       {¶23} On January 16, 2013, Defendants-Appellees filed a Motion to Dismiss with

Prejudice for Failure to Prosecute with the trial court.

       {¶24} By Order docketed January 17, 2013, the trial court set an oral hearing on

Defendants-Appellees’ Motion to Dismiss for February 14, 2013.

       {¶25} On February 1, 2013, Plaintiff-Appellant filed a Motion to Reset the Trial

Date and Issue a New Case Schedule.

       {¶26} On February 11, 2013, Defendants-Appellees filed a Memorandum Contra

Plaintiff’s Motion to Reset Trial Date.

       {¶27} On February 14, 2013, Plaintiff-Appellant filed its Reply to Defendants’

Motion to Dismiss. Defendants-Appellees also filed a Reply to Plaintiff’s Response

(entitled “Reply”).

       {¶28} By Judgment Entry filed March 7, 2013, the trial court granted Defendants-

Appellees’ motion to dismiss, finding that “lack of any contact with the Court or request

for status conference or any type of inquiry whatsoever for a period exceeding five

years constitutes failure to prosecute for which the sanctions set out in Rule 41 is

dismissal”.

       {¶29} Plaintiff-Appellant Ezequiel Celaya Garcia now appeals, assigning the

following errors for review:
Licking County, Case No. 13 CA 27                                                         8


                             ASSIGNMENTS OF ERROR

      {¶30} “I. THE TRIAL COURT ERRONEOUSLY GRANTED DEFENDANT-

APPELLEE'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE BECAUSE A

DISMISSAL WAS TOO HARSH OF A SANCTION WHEN THE TRIAL COURT ITSELF

DID NOT FOLLOW THE MANDATE OF THIS COURT AND INITIATE FURTHER

PROCEEDINGS.

      {¶31} “II. THE TRIAL COURT ERRONEOUSLY GRANTED DEFENDANT-

APPELLEE'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE WHEN THE

DOCTRINE OF LATCHES DOES NOT APPLY BECAUSE DEFENDANT NEVER

INDICATED THAT IT WAS PREJUDICED UNDER THE CIRCUMSTANCES.

      {¶32} “III. THE TRIAL COURT ERRONEOUSLY GRANTED DEFENDANT-

APPELLEE'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE BECAUSE

PLAINTIFFS CONDUCT HAS NOT BEEN SO NEGLIGENT, IRRESPONSIBLE,

CONTUMACIOUS OR DILATORY AS TO PROVIDE SUBSTANTIAL GROUNDS FOR

DISMISSAL WITH PREJUDICE.

      {¶33} “IV.   THE    TRIAL    COURT        ERRONEOUSLY      DENIED     PLAINTIFF-

APPELLANT'S MOTION TO RESET THE TRIAL DATE.”

                                        I., II., III.

      {¶34} As Appellant’s first three Assignments of Error challenge the trial court’s

decision granting Appellees’ motion to dismiss, we shall address them together.

      {¶35} Civil Rule 41 addresses Dismissal of Actions, and states, in relevant part:

      {¶36} “(B) Involuntary dismissal: effect thereof
Licking County, Case No. 13 CA 27                                                        9

       {¶37} “(1) Failure to prosecute. Where 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.”

       {¶38} 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 reversed absent an abuse of discretion.

Jones v. Hartranft (1997), 78 Ohio St.3d 368, 371, 678 N.E.2d 530.

       {¶39} An abuse of discretion is more than an error of law of judgment; it implies

that the action of the trial court was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶40} Nonetheless, as this Court noted in Palacios v. Gruen (Dec. 26, 1989),

Knox App. No. 89-CA-29, whenever possible, claims and defenses should be

addressed on their merits. Id., citing Maritime Manufacturers, Inc. v. Hi-Skipper Marina

(1982), 70 Ohio St.2d 257, 436 N.E.2d 1034. Thus, “[t]he extremely harsh sanction of

dismissal should be reserved for cases when an attorney's conduct falls substantially

below what is reasonable under the circumstances evidencing a complete disregard for

the judicial system or the rights of the opposing party.” Id., citing Moore v. Emmanuel

Family Training Center, Inc. (1985), 18 Ohio St.3d 64, 70. The trial court should

consider whether or not a party's conduct is “so negligent, irresponsible, contumacious

or dilatory as to provide substantial grounds for a dismissal with prejudice * * *.”

Quonset Hut at 48, 684 N.E.2d 319.

       {¶41} The trial court, in its March 7, 2013, Judgment Entry, recognized the trial

court’s responsibility to manage the cases on its docket, and stated:
Licking County, Case No. 13 CA 27                                                           10


       {¶42} “The    Court    is   mindful   of   its   obligations   under   the   Rules   of

Superintendence to track its cases and set them for trial when they are ready. This

case was closed when a final appealable judgment was entered. The case should have

been reopened when remanded by the Court of Appeals, and the Court is at a loss to

explain why it was not reopened, which would have caused the case to remain on the

Court’s active calendar, and therefore subject to regular review. Since that time in this

Court, computer systems have changed, calendaring schemes have changed and

employees and magistrates have changed.”

       {¶43} However, the trial court then went on to find that regardless of such

obligation of the court, trial counsel’s failure to notify or contact the court for over five

years was inexcusable and dismissed the action.

       {¶44} Upon review, while this Court does not disagree with the trial court’s

finding that the lack of any action by Appellant’s counsel was inexcusable, we find that

the trial court’s action in granting the motion to dismiss in this matter was an abuse of

discretion.

       {¶45} As stated by the Tenth District Court of Appeals in Korodi v. Minot (1993),

89 Ohio App.3d 90, syllabus:

       {¶46} “Dismissal with prejudice was too harsh a sanction for plaintiff's inaction in

failing to make any inquiry of assignment commissioner as to why his case had not

been scheduled for trial, notwithstanding that plaintiff sat idly by for more than three and

one-half years after case was ready for trial assignment; primary neglect was that of the

court itself, which bore primary responsibility for scheduling cases for trial. Common

Pleas Superintendence Rule 6(A).”
Licking County, Case No. 13 CA 27                                                          11

       {¶47} In Korodi, the Tenth District Court of Appeals held:

       {¶48} “The trial court erred in finding the primary duty to cause the case to be

set for trial to be upon plaintiff. Under the rules, the primary duty is upon the plaintiff to

prosecute the case and see that all things are accomplished to make the case ready for

trial assignment in a timely fashion. However, once the case is ready for trial

assignment under the local rules of the trial court and under the Rules of

Superintendence, the primary responsibility is upon the trial court itself to see that the

case is scheduled for trial. By local rules, the trial court has placed the burden of

keeping track of cases and scheduling for trial those cases which are ready for trial

upon its assignment commissioner.

       {¶49} “ ***

       {¶50} “In other words, even though the primary responsibility for scheduling this

case for trial was upon the court, plaintiff must bear some burden of inquiry where there

is an undue prolonged delay in the scheduling of a case for trial. Thus, some sanctions

can be justified but not the harsh sanction of dismissal with prejudice where the primary

neglect was that of the court itself. Since the trial court found dismissal rather than

immediate trial appropriate, we find no abuse of discretion to that extent, so long as the

dismissal is without prejudice.”

       {¶51} In the case sub judice, we find that the sanction of dismissal was too

harsh of a sanction as the trial court’s dismissal operates as a dismissal with prejudice.

Accordingly, we hold it was an abuse of discretion to dismiss Appellant's action with

prejudice for failure to prosecute in this matter

       {¶52} Appellant’s First, Second and Third Assignments of Error are sustained.
Licking County, Case No. 13 CA 27                                                      12


                                             IV.

       {¶53} In Appellant’s Fourth Assignment of Error he argues that the trial court

erred in denying his motion to reset the trial date in this matter.

       {¶54} Based on our conclusion regarding Appellant's First Assignment of Error,

the present arguments as to the motion for relief from judgment are moot. We therefore

decline to address Appellant's Fourth Assignment of Error.

       {¶55} The decision of the Licking County Court of Common Pleas is reversed

and this matter is remanded to the trial court for further proceedings consistent with the

law and this opinion.


By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.


                                               /s/ John W. Wise_________________
                                               HON. JOHN W. WISE


                                               /s/ William B. Hoffman____________
                                               HON. WILLIAM B. HOFFMAN


                                               /s/ Patricia A. Delaney____________
                                               HON. PATRICIA A. DELANEY

JWW/d 0904
Licking County, Case No. 2013 CA 00027                                            13


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




EZEQUIEL CELAYA GARCIA, et al.              :
                                            :
       Plaintiffs-Appellants                :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
NEWARK BUILDERS SUPPLY, INC.,               :
dba NBS SYSTEMS, et al.                     :
                                            :
       Defendants-Appellees                 :         Case No. 13 CA 27




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is reversed and

remanded for further proceedings consistent with this opinion.

       Costs assessed to Appellees.




                                            /s/ John W. Wise________________
                                            HON. JOHN W. WISE


                                            /s/ William B. Hoffman____________
                                            HON. WILLIAM B. HOFFMAN


                                            /s/ Patricia A. Delaney____________
                                            HON. PATRICIA A. DELANEY
