[Cite as Geico Cas. Ins. Co. v. Durant-Baker, 2014-Ohio-1530.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Geico Casualty Insurance Co.,                       :

                Plaintiff-Appellant,                :                  No. 13AP-573
                                                                   (C.P.C. No. 13CV-01-432)
v.                                                  :
                                                                 (REGULAR CALENDAR)
Maria Durant-Baker et al.,                          :

                Defendants-Appellees.               :


                                           D E C I S I O N

                                      Rendered on April 10, 2014


                Kreiner & Peters Co., LPA, and Daran P. Kiefer, for appellant.

                Jurca & Lashuk, LLC, Jeffrey J. Jurca and Jason P. Grable,
                for appellees.

                  APPEAL from the Franklin County Court of Common Pleas

McCORMAC, J.

        {¶ 1} Plaintiff-appellant, Geico Casualty Insurance Co., appeals from the June 3,
2013 judgment of the Franklin County Court of Common Pleas dismissing plaintiff's
complaint upon the motion of defendants-appellees, Maria Durant-Baker and University
Corp. For the reasons that follow, we reverse and remand the judgment of the trial court.
I. Facts and Procedural History
        {¶ 2} On January 11, 2013, plaintiff filed a complaint seeking monetary judgment
against defendants. Plaintiff asserted it was the insurer and subrogee of Natosha M. Mills,
whose vehicle was damaged by Maria Durant-Baker while she was acting as an agent of
University Corp. On February 20, 2013, defendants filed an answer, denying the
allegations of the complaint.
No. 13AP-573                                                                               2


       {¶ 3} On May 3, 2013, defendants filed a motion to compel discovery, alleging
that plaintiff failed to respond to defendants' interrogatories and request for production of
documents, which were served on February 26, 2013. On May 23, 2013, the trial court
granted defendants' motion to compel, ordering plaintiff to respond within ten days of the
order. The trial court stated in its judgment entry that "[f]ailure to abide by this Court's
Order shall result in sanctions." (R. 38.)
       {¶ 4} On June 3, 2013, defendants filed a motion pursuant to Civ.R. 37(B) and
41(B)(1) to dismiss with prejudice plaintiff's complaint "for its failure to prosecute this
matter and, most recently, Plaintiff's failure to comply with this Court's Order of May 23,
2013 requiring Plaintiff to provide full and complete responses to Defendants'
Interrogatories and Requests for Production of Documents within ten (10) days of said
Order." (R. 40.) Defendants also requested monetary sanctions, including attorney fees
and costs. On June 3, 2013 at 1:33 p.m., the record reflects that the trial court granted
defendants' motion to dismiss with prejudice and awarded to defendants reasonable
expenses and attorney fees in the amount of $2,500 incurred by the preparation of the
motions to compel and dismiss.
II. Assignments of Error
       {¶ 5} Plaintiff timely appeals, assigning the following three errors:
               I. The trial court abused its discretion by "Dismissing With
               Prejudice" under Rule 37 discovery sanctions before the time
               granted by the Court and Civil Rules to Plaintiff to answer
               discovery had actually expired.

               II. The trial court abused its discretion by dismissing
               Plaintiff's case with prejudice without giving any notice to
               Plaintiff and violating the due process rights of the Plaintiff.

               III. The trial Court abused its discretion by awarding
               $2,500.00 in sanctions as no evidence of expenses or attorney
               fees were submitted by Defendant's counsel with their motion.
No. 13AP-573                                                                                  3


III. First and Second Assignments of Error
       {¶ 6} Because plaintiff's first and second assignments of error are interrelated, we
will consider them together. Plaintiff contends that the trial court abused its discretion by
dismissing plaintiff's complaint with prejudice without giving notice of the possibility of
dismissal and before the expiration of the period the trial court set for complying with the
May 23, 2013 judgment. Defendant responds that plaintiff was on notice regarding the
possibility of dismissal because the trial court's May 23, 2013 order contained an
admonition that failing to comply could result in sanctions.
       {¶ 7} Dismissal of a case pursuant to Civ.R. 41(B)(1) is within the sound
discretion of the trial court. Harris v. Harris, 10th Dist. No. 98AP-1077 (June 24, 1999),
citing Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 47 (1997). An abuse of
discretion connotes more than an error of law or of judgment; it implies an unreasonable,
arbitrary or unconscionable attitude on the part of the court. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983). " 'While a heightened scrutiny is utilized when reviewing a
dismissal with prejudice, the action of the trial court will be affirmed when "the conduct of
a party is 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." ' "
Harris, quoting Quonset at 48.
       {¶ 8} 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." Prior
to dismissing a case for failure to prosecute, "a court must notify the plaintiff of the court's
intent to dismiss so as to afford the plaintiff an opportunity to correct the default or
explain why the case should not be dismissed with prejudice." Williams v. RPA Dev.
Corp., 10th Dist. No. 07AP-881, 2008-Ohio-2695, ¶ 7, citing Logsdon v. Nichols, 72 Ohio
St.3d 124, 128 (1995). "A trial court errs in dismissing a plaintiff's case for failure to
prosecute when notice has not been given." Williams at ¶ 7, citing Asres v. Dalton, 10th
Dist. No. 05AP-632, 2006-Ohio-507, ¶ 12. Thus, appellate review of a dismissal for failure
to prosecute involves two assessments: first, whether the plaintiff was provided with
No. 13AP-573                                                                                              4


sufficient notice prior to the dismissal; and second, whether the dismissal constituted an
abuse of discretion. Williams at ¶ 8.
           {¶ 9} Here, defendants concede the trial court granted dismissal prior to the
expiration of time afforded to plaintiff to respond to the May 23, 2013 judgment. 1
Regardless of whether the trial court's admonition regarding sanctions in the May 23,
2013 order impliedly alerted plaintiff that the complaint was subject to dismissal, the trial
court dismissed the action before the expiration of the time allotted to plaintiff to respond.
As the trial court fixed the period of time for plaintiff to be afforded a meaningful
opportunity to respond at ten days, it could not preemptively terminate such period
without destroying the presumption of notice. Quonset at syllabus ("For purposes of
Civ.R. 41(B)(1), counsel has notice of an impending dismissal with prejudice for failure to
comply with a discovery order when counsel has been informed that dismissal is a
possibility and has had a reasonable opportunity to defend against dismissal."). Thus,
despite plaintiff's arguably dilatory conduct prior to the granting of the motion to dismiss,
the trial court committed reversible error by failing to afford plaintiff notice of the
possibility of dismissal. Hill v. Marshall, 10th Dist. No. 12AP-805, 2013-Ohio-5538, ¶ 9,
Carr v. Green, 78 Ohio App.3d 487, 491 (10th Dist.1992) ("Civ.R. 41(B) requires the prior
issuance by the trial court of a separate and additional notice to the plaintiff or his counsel
of the pendency of a motion to dismiss for failure to prosecute, whether the dismissal is
with or without prejudice, so that the plaintiff has an opportunity to either comply with
the court order or explain the circumstances of his non-appearance.").
           {¶ 10} Accordingly, we sustain defendant's first and second assignments of error.




1   Civ.R. 6(A) controls the calculation of time for compliance with court order, providing as follows:
                   In computing any period of time prescribed or allowed by these rules, by
                   the local rules of any court, by order of court, or by any applicable statute,
                   the day of the act, event, or default from which the designated period of
                   time begins to run shall not be included. The last day of the period so
                   computed shall be included, unless it is a Saturday, a Sunday, or a legal
                   holiday, in which event the period runs until the end of the next day which
                   is not a Saturday, a Sunday, or a legal holiday.
No. 13AP-573                                                                                                 5


IV. Third Assignment of Error
        {¶ 11} Plaintiff's third assignment of error asserts the trial court erred by ordering
plaintiff to pay defendants' attorney fees and expenses because plaintiff did not supply
evidence of the cost. Having found that the trial court erred by granting defendants'
motion to dismiss, the trial court's award of attorney fees and costs is rendered moot.
V. Disposition
        {¶ 12} Having sustained plaintiff's first and second assignments of error and
having found the third assignment of error moot, we reverse the judgment of the Franklin
County Court of Common Pleas and remand to that court for proceedings consistent with
this decision.
                                                               Judgment reversed; cause remanded.

                             SADLER, P.J., and DORRIAN, J., concur.

                 McCORMAC, J., retired, of the Tenth Appellate District,
                 assigned to active duty under authority of the Ohio
                 Constitution, Article IV, Section 6(C).




Thus, under Civ.R. 6(A), since the trial court's order was filed on Thursday, May 23, 2013, and the last day of
the period was Sunday, June 2, 2013, plaintiff had until the end of Monday, June 3, 2013, to respond to the
motion to compel.
