[Cite as Simmons v. Narine, 2014-Ohio-2771.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 100545




                                MICHAEL SIMMONS
                                                     PLAINTIFF-APPELLANT

                                               vs.

                                     LAURA NARINE
                                                     DEFENDANT-APPELLEE




                                          JUDGMENT:
                                           AFFIRMED


                                       Civil Appeal from the
                                    Cleveland Municipal Court
                                         Housing Division
                                    Case No. 2012 CVH 020673

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

        RELEASED AND JOURNALIZED:                    June 26, 2014
ATTORNEY FOR APPELLANT

Christopher R. Fortunato
13363 Madison Ave.
Lakewood, Ohio 44107

ATTORNEYS FOR APPELLEE

Adam Doxsey
Frank P. Giaimo
Neil W. Siegel
24400 Chagrin Blvd., #300
Beachwood, Ohio 44122
KENNETH A. ROCCO, J.:

       {¶1} This appeal is before the court on the accelerated calendar pursuant to App.R.

11.1 and Loc.App.R. 11.1. Plaintiff-appellant Michael Simmons appeals the trial court’s

dismissal of his complaint with prejudice pursuant to Civ.R. 41(B)(1) after he failed to

attend a court-ordered settlement conference. We find no merit to the appeal and affirm

the trial court’s judgment.

       {¶2}    On March 29, 2012, Simmons and Agnes Campbell entered into a one-year

lease agreement with defendant-appellee Laura Narine relating to property Narine owned

on 2222 West 105th St. in Cleveland, Ohio. On

December 14, 2012, Simmons filed a complaint against Narine with the Cleveland

Municipal Court, Housing Division. Simmons alleged that Narine had engaged in a “self

help eviction,” in violation of R.C. 5321.15(C), by locking Simmons out of the property

and “preventing him from retrieving his chattels” after Narine had issued notices to

Simmons and Campbell to leave the premises for nonpayment of rent. On January 18,

2013, Narine filed her answer, denying the allegations of the complaint and asserting

various affirmative defenses.

       {¶3} On April 1, 2013, the trial court held a pretrial conference. Both of the

parties and their counsel attended the pretrial conference, but the parties were unable to

reach a settlement. Accordingly, the trial court scheduled a settlement conference for

July 10, 2013. In its June 4, 2013 judgment entry setting the settlement conference, the
trial court ordered both parties and their counsel to attend the settlement conference. The

judgment entry further provided, in relevant part:

       Failure of a party or counsel to attend may result in dismissal of the
       failing party’s claim(s), immediate hearing of the opposing party’s
       claims or other appropriate sanctions.

       {¶4} Although counsel appeared, neither of the parties appeared at the July 10,

2013 settlement conference. Accordingly, the trial court rescheduled the settlement

conference for September 9, 2013, once again ordering both parties and their counsel to

attend the settlement conference.      The July 16, 2013 judgment entry resetting the

settlement conference stated, in relevant part:

             This case came for settlement conference July 10, 2013 * * *.
       Counsel for the respective parties appeared. The parties, themselves, did
       not appear notwithstanding an order of the court directing them to attend.
       The absence of the parties and the inability of Plaintiff’s counsel to
       speak with specificity about the claimed damages precluded
       substantive settlement discussions.

              Accordingly, this case is reset for another Settlement Conference
       with respect to all pending claims * * *.

             Both parties and counsel are required to attend. * * * Failure of
       a party or counsel to attend may result in dismissal of a party’s claims
       or immediate hearing of the opposing party’s claims. * * *

Simmons’s counsel was also directed to bring to the conference “an itemized list and

valuation of [the] personal property claimed to have been lost” and to share the list with

Narine’s counsel at least one week prior to the settlement conference.

       {¶5} Plaintiff’s counsel, Narine’s counsel, and Narine (who had traveled
       from Virginia to attend the conference) appeared at the September 9, 2013
       settlement conference.      Once again, Simmons, without notice or
       explanation, failed to appear for the settlement conference. On September
      19, 2013, the trial court dismissed Simmons’s complaint with prejudice. In
      its September 19, 2013 judgment entry, the trial court explained its reasons
      for dismissing Simmons’s complaint as follows:

             Defendant came to the settlement conference from Virginia, but no
      substantive discussion could be held due to plaintiff’s failure to appear.
      Plaintiff’s counsel did not offer an explanation as to why plaintiff was not
      present, had not heard from plaintiff in nearly two months, and did not have
      settlement authority. The Court notes that plaintiff also failed to appear at
      the July 10, 2013 settlement conference. Finally, plaintiff and counsel
      failed to produce a list of lost property and valuation pursuant to the
      Judgment Entry of
      July 16, 2013.

              Plaintiff having failed to appear at the settlement conference, and for
      the reasons stated above, pursuant to the July 16, 2013 Judgment Entry,
      (which indicated that failure to appear at hearing may result in dismissal of
      the failing party’s claims), plaintiff’s monetary claims are hereby dismissed,
      with prejudice. * * *

      {¶6} Simmons appealed the trial court’s judgment, presenting the following

assignment of error for review:

      The trial court abused its discretion when it dismissed plaintiff’s complaint
      with prejudice when it should have considered lesser sanctions.

      {¶7} Because it is such a harsh sanction, “forever deny[ing] a plaintiff a review

of a claim’s merits,” we review a trial court’s decision to dismiss a case with prejudice

pursuant to Civ.R. 41(B)(1) under a “heightened” abuse-of-discretion standard. See, e.g.,

Ocran v. Richlak, 8th Dist. Cuyahoga No. 99856, 2013-Ohio-4603, ¶ 12, citing Tarquinio

v. Estate of Zadnik, 8th Dist. Cuyahoga Nos. 95767 and 96246, 2011-Ohio-3980, ¶ 20,

and Autovest, L.L.C. v. Swanson, 8th Dist. Cuyahoga No. 88803, 2007-Ohio-3921, ¶ 18.

An abuse of discretion is more than an error of law or judgment, “it implies that the
court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,

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

      {¶8} Civ.R. 41(B)(1) provides:

      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.

      {¶9} Our review of the trial court’s dismissal of Simmons’s complaint involves

two steps. First, we must determine whether the trial court provided sufficient notice

prior to the dismissal. Second, we must determine whether the dismissal constituted an

abuse of the trial court’s discretion under the circumstances. Walker v. Cleveland Clinic

Found., 8th Dist. Cuyahoga No. 91648, 2009-Ohio-2261, ¶ 8, citing Asres v. Dalton, 10th

Dist. Franklin No. 05AP-632, 2006-Ohio-507, ¶ 14.

      {¶10} Simmons argues that the trial court’s July 16, 2013 journal entry, listing

“potential sanctions” the court might impose if a party failed to appear for the September

9, 2013 settlement conference, did not satisfy Civ.R. 41(B)(1)’s notice requirement.

Rather, Simmons contends that, to comply with Civ.R. 41(B)(1), the trial court was

required to give him notice, after the settlement conference, of its intent to dismiss his

complaint with prejudice “for failure to explain his non-attendance.”

      {¶11} Before a trial court can properly dismiss a party’s claim for failure to

prosecute under Civ.R. 41(B)(1), the record must show that the party had notice of the

possibility of dismissal. Mokrytzky v. Capstar Capital Corp., 8th Dist. Cuyahoga No.
91287, 2009-Ohio-238, ¶ 12, citing Logsdon v. Nichols, 72 Ohio St.3d 124, 647 N.E.2d

1361 (1995). The purpose of the notice requirement is to provide a party who is in

default of a court order an opportunity to correct or explain the circumstances of the

party’s default and to provide reasons why the case should not be dismissed with

prejudice. Id.; see also Youngblood v. Kindred Healthcare, 8th Dist. Cuyahoga No.

94442, 2010-Ohio-4358, ¶ 13 (“The purpose of such notice is to allow a party to explain

the circumstances causing his or her nonappearance and why the case should not be

dismissed with prejudice.”). Civ.R. 41(B)(1)’s notice requirement is satisfied “when

counsel has been informed that dismissal is a possibility and has had a reasonable

opportunity to defend against dismissal.” Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio

St.3d 46, 49, 684 N.E.2d 319 (1997). What constitutes notice and an opportunity to be

heard regarding a proposed dismissal is examined on a case-by-case basis.            Hill v.

Marshall, 10th Dist. Franklin No. 12AP-805, 2013-Ohio-5538, ¶ 8.             “‘[T]he notice

required by Civ.R. 41(B)(1) need not be actual but may be implied when reasonable under

the circumstances.’” Sazima v. Chalko, 86 Ohio St.3d 151, 155, 712 N.E.2d 729 (1999),

quoting Quonset at 49; see also Walker at ¶ 7. “[O]nce notice is given that a dismissal

with prejudice is a possibility,” the party need not be given “a second chance to comply

with the court’s order.” Mokrytzky at ¶ 13, citing Shoreway Circle v. Gerald Skoch Co.,

L.P.A., 92 Ohio App.3d 823, 637 N.E.2d 355 (8th Dist.1994).

      {¶12} In this case, the record reflects that the trial court provided sufficient notice

to Simmons and his counsel of the possibility that the trial court would dismiss his
complaint if he did not appear at the September 9, 2013 settlement conference.

Simmons’s absence from the September 9, 2013 settlement conference was not his first

“no show” in the case. He also failed to attend the July 10, 2013 settlement conference.

The trial court clearly and unambiguously stated in its June 4, 2013 judgment entry setting

the July 10, 2013 settlement conference that “[f]ailure of a party or counsel to attend [the

settlement conference] may result in dismissal of a party’s claims.” After Simmons and

Narine both failed to attend the July 10, 2013 settlement conference — despite being

explicitly ordered by the court to do so — the trial court gave them each an opportunity to

correct their “prior default” and rescheduled the settlement conference for September 9,

2013. In its July 16, 2013 judgment entry resetting the settlement conference, the trial

court, once again, notified counsel and the parties that “[f]ailure of a party or counsel to

attend [the settlement conference] may result in dismissal of a party’s claims.” Although

the judgment entry did not specifically state that the trial court would dismiss his

complaint “with prejudice” if Simmons failed to appear, it is well established that a

Civ.R. 41(B)(1) dismissal “operates as an adjudication upon the merits unless the court, in

its order for dismissal, otherwise specifies.”    Civ.R. 41(B)(3); see also McGrath v.

Bassett, 196 Ohio App.3d 561, 2011-Ohio-5666, 964 N.E.2d 485, ¶ 24-26 (8th Dist.)

(where court put plaintiff on notice that “failure to appear as ordered may result in

sanctions including dismissal and/or judgment,” and plaintiff thereafter failed to appear

both at the final pretrial conference and a subsequent conference arranged by court at
plaintiff’s request, trial court did not abuse its discretion in dismissing plaintiff’s case

with prejudice).

       {¶13} Further, although there is no transcript of the September 9, 2013 settlement

conference in the record, the trial court’s September 19, 2013 journal entry reporting on

the settlement conference suggests that plaintiff’s counsel, at that time, had both an

opportunity to explain Simmons’s failure to appear and an opportunity to be heard as to

whether plaintiffs’ complaint should be dismissed. See Ham v. Park, 110 Ohio App.3d

803, 809, 675 N.E.2d 505 (8th Dist.1996) (where referee’s report indicated that plaintiff’s

counsel was present at hearing, since no transcript was provided of the hearing, it was

presumed that plaintiff’s counsel had an opportunity to respond at that time to notice of

intended dismissal, such that notice required under Civ.R. 41(B)(1) was provided).

       {¶14} The record reflects that Simmons and his counsel were given ample prior

notice that dismissal of Simmons’s complaint was a possibility if Simmons failed to

appear at the September 9, 2013 settlement conference as well as an opportunity (1) to

correct or explain Simmons’s nonappearance and (2) to argue why the case should not be

dismissed for Simmons’s failure to comply with the court’s trial orders. Having given

this notice, the trial court was not again required, after the September 9, 2013 settlement

conference, to give Simmons yet another chance to avoid dismissal and “explain his

nonappearance” in order to comply with Civ.R. 41(B)(1). Mokrytzky, 2009-Ohio-238 at

¶ 13 (where plaintiff’s counsel did not appear at hearing, did not provide the court with

notice or a reason why he would be unable to attend the hearing, and the trial court in a
journal entry advising parties of hearing date clearly stated that “[i]f plaintiff’s counsel

fails to appear, case will be dismissed with prejudice for failure to prosecute,” plaintiff’s

counsel was precluded from arguing that he should be provided an opportunity to assert

why he was not present at the hearing because that “would be allowing him ‘a second bite

at the apple’”), citing Shoreway Circle, 92 Ohio App.3d 823, 637 N.E.2d 355.

       {¶15} Simmons also argues that dismissal of his complaint with prejudice was “too

punitive a measure to impose on him” for failure to attend a settlement conference and

that the trial court abused its discretion in dismissing his complaint with prejudice

“without considering less drastic alternatives” such as a dismissal without prejudice. We

disagree.

       {¶16} Dismissal with prejudice is an extremely harsh sanction. Willis v. RCA

Corp., 12 Ohio App.3d 1, 465 N.E.2d 924 (8th Dist.1983), paragraph one of the syllabus

(“Dismissal with prejudice for nonappearance is a drastic remedy which should be used

sparingly and in extreme situations”). It is reserved for cases in which a party’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,’” Sazima,

86 Ohio St.3d at 158, 712 N.E.2d 729, quoting Moore v. Emmanuel Family Training Ctr.,

Inc., 18 Ohio St.3d 64, 70, 479 N.E.2d 879 (1985) — in other words, conduct “‘so

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

dismissal with prejudice.’” Quonset, 80 Ohio St.3d at 48, 684 N.E.2d 319, quoting

Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 632, 605 N.E.2d 936
(1992).   Absent such extreme circumstances, a court must consider lesser sanctions

before dismissing a case with prejudice. Sazima at 158, citing Jones v. Hartranft, 78

Ohio St.3d 368, 371-372, 678 N.E.2d 530 (1997); Autovest, 2007-Ohio-3921 at ¶ 25.

Lesser sanctions that are available to the trial court when a party fails to appear at a

conference or hearing include: (1) a reprimand by the court; (2) a finding of contempt; (3)

an order prohibiting the party or attorney from appearing in that court without different

counsel in the future; (4) an order to pay the opposing party’s expenses or attorney fees;

and (5) a dismissal without prejudice. See, e.g., Willis at paragraph two of the syllabus;

Youngblood, 2010-Ohio-4358 at ¶ 15.

       {¶17}    In considering whether dismissal is warranted for a party’s lack of

prosecution, a trial court may take into account the entire history of the litigation,

including a party’s prior dilatory conduct. Jones at 372. A trial court’s orders are not to

be taken lightly. Shoreway Circle, 92 Ohio App.3d at 832, 637 N.E.2d 355. The harsh

remedy of dismissal with prejudice is warranted where the record shows that a party has

repeatedly, deliberately and without explanation, failed to comply with the trial court’s

orders. In Pembaur v. Leis, 1 Ohio St.3d 89, 437 N.E.2d 1199 (1982), syllabus, the Ohio

Supreme Court held that “it is not an abuse of discretion for the trial court to dismiss an

action, with prejudice, for lack of prosecution” where “a plaintiff voluntarily fails to

appear at a hearing, without explanation, [after] the court has directed him to be present

and his location is unknown” even to his counsel. In Pembaur, the plaintiff failed to

attend a status conference, leading the defendants to file a motion to dismiss for failure to
prosecute. When the plaintiff failed to attend the hearing on the motion, after the trial

court notified him he was required to attend the hearing, the court dismissed his action

with prejudice. The court of appeals reversed, holding that the trial court should have

dismissed the action without prejudice. However, the Ohio Supreme Court upheld the

trial court’s decision, holding that, under the circumstances, the trial court did not abuse

its discretion in dismissing the case with prejudice. “‘Where a plaintiff fails to totally

appear, * * * a dismissal with prejudice may be proper for such a failure indicates a lack

of interest in pursuing the case.’” Id. at 91, quoting Schreiner, supra.

       {¶18} This case is quite similar to Pembaur. In this case, the trial court ordered

Simmons to attend the July 10, 2013 settlement conference, advising him that if he failed

to appear, his case could be dismissed.       When Simmons did not appear, the court

rescheduled the settlement conference for September 9, 2013, once again advising

Simmons that if he failed to appear, the trial court could dismiss his case. Despite the

court’s warnings, Simmons once again failed to appear. Simmons did not file a motion

for continuance of the September 9, 2013 settlement conference; there is nothing in the

record indicating that he otherwise notified anyone that he would not be appearing for the

settlement conference; and he extended no settlement authority to his counsel in his

absence.   Simmons likewise failed to comply with the court’s order to produce an

itemized list and valuation of the property he claimed to have lost due to Narine’s alleged

“self help eviction.” As a result, although Narine traveled from Virginia to attend the

settlement conference, no substantive discussions could be had. Simmons has never
offered any explanation for his failure to appear at the court-ordered settlement

conference, and there is nothing in the record to suggest that his failure to appear at the

conference was anything other than a deliberate, voluntary act on his part.

       {¶19} In considering whether the trial court abused its discretion in dismissing

Simmons’s complaint with prejudice, we are mindful of this court’s prior decisions in

cases such as Willis v. RCA Corp., 12 Ohio App.3d 1, 465 N.E.2d 924 (8th Dist.1983),

Youngblood v. Kindred Healthcare, 8th Dist. Cuyahoga No. 94442, 2010-Ohio-4358, and

Ocran v. Richlak, 8th Dist. Cuyahoga No. 99856, 2013-Ohio-4603, in which this court

held that, under the circumstances in those cases, a party’s failure to appear at a hearing

or pretrial conference “did not justify an order that plaintiff should forever lose his day in

court.” In those cases, however, there was nothing in the record that suggested that the

plaintiff “was dilatory or irresponsible in pursuing his cause of action,” that the plaintiff’s

failure to appear was “deliberate or rebellious,” or that there was any other “egregious

conduct.” To the contrary, in each of those cases, the failure to appear was explained as

resulting from excusable neglect or other extenuating circumstances that the trial court

determined reasonably justified the failure to appear. See, e.g., Willis, supra (trial court

abused its discretion in dismissing plaintiff’s complaint with prejudice where, although he

had four months’ prior notice of hearing, plaintiff inadvertently forgot to note the hearing

in his calendar); Youngblood, supra (trial court abused its discretion in dismissing

plaintiff’s complaint with prejudice based on his counsel’s failure to appear at case

management conference where counsel had just replaced his assistant and nonappearance
was allegedly due to assistant’s inadvertent failure to include the conference on his

calendar); Ocran, supra (trial court abused its discretion in dismissing plaintiff’s

complaint with prejudice for failure to appear at settlement and pretrial conferences

where plaintiff presented a “valid explanation” for his inability to attend the conferences,

i.e., he resided out of state and was unable to return to Ohio due to his employment, his

counsel attended the settlement and pretrial conferences, and plaintiff was available by

telephone). No similar facts exist in this case.

       {¶20} Although disposition of cases on their merits is favored, and a dismissal

with prejudice is a harsh sanction, we cannot say, based on the particular facts in this

case, that the trial court abused its discretion in dismissing Simmons’s complaint with

prejudice. Nothing in the record suggests that the trial court acted in an unreasonable,

arbitrary, or unconscionable manner. Accordingly, Simmons’s sole assignment of error

is overruled.

       {¶21} Judgment affirmed.

       It is ordered that appellee recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       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.
__________________________________________
KENNETH A. ROCCO, JUDGE

LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR
