[Cite as Czyz v. Best Choice Moving, Inc., 2015-Ohio-3562.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


CATHERINE E. CZYZ                                  :          JUDGES:
                                                   :          Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellant                      :          Hon. Sheila G. Farmer, J.
                                                   :          Hon. Craig R. Baldwin, J.
-vs-                                               :
                                                   :
BEST CHOICE MOVING, INC., et al.                   :          Case No. 14 CA 23
                                                   :
        Defendant - Appellees                      :          OPINION



CHARACTER OF PROCEEDING:                                      Appeal from the Guernsey County
                                                              Court of Common Pleas, Case No.
                                                              13 CV 000558




JUDGMENT:                                                     Affirmed in part; Reversed and
                                                              Remanded in part




DATE OF JUDGMENT:                                             August 28, 2015




APPEARANCES:

For Plaintiff-Appellant                                       For Defendants-Appellees

CATHERINE E. CZYZ                                             DANIEL G. PADDEN
16 Van Keuren Avenue                                          Tribbie, Scott, Plummer & Padden
Bound Brook, NJ 08805                                         P.O. Box 640
                                                              Cambridge, OH 43725-0640
Guernsey County, Case No. 14 CA 23                                                      2

Baldwin, J.

      {¶1}    Plaintiff-appellant Catherine Czyz appeals from the November 6, 2014

Entry of the Guernsey County Court of Common Pleas denying her Motion to Reinstate

Case and Motion to Re-Set Pretrial Mediation and her Motion for Default Judgment.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On December 11, 2013, appellant Catherine Czyz filed a Complaint of

Possession against appellee Best Choice Moving, Inc.          In her complaint, appellant

alleged that appellee had picked up property of hers in New Jersey and was to deliver

the same to a home located in St. Clairsville, Ohio. Appellant alleged that appellee had

not done so and that her belongings were taken to a storage facility in Old Washington,

Ohio named “A Village Storage Lock-Up.”.           The complaint sought the return of her

property.

      {¶3}    Appellee Best Choice Moving, Inc. was served with a copy of the

complaint via certified mail on January 2, 2013.

      {¶4}    On March 19, 2014, appellant filed a Motion for Default Judgment and Writ

of Possession against appellee Best Choice Moving, Inc. The trial court, pursuant to an

Entry filed on March 19, 2014, denied the motion, finding that “A Village Lock Up

Storage” should have been named as an additional party and was not joined in this

case. The trial court granted appellant leave to join the additional party within fourteen

(14) days.

      {¶5}    Thereafter, on April 1, 2014, appellant filed an Amended Complaint adding

A Village Storage Lock-Up as a defendant. On April 3, 2014, A Village Storage Lock-Up

filed a Motion to Dismiss the Amended Complaint, alleging that appellant had incorrectly
Guernsey County, Case No. 14 CA 23                                                    3


named the entity and that the correct entity was Rick Casterline and Sheila Casterline

dba A Village Storage Lock-Up. Pursuant to Magistrate’s Orders filed on April 14, 2014,

the trial court granted appellant thirty (30) days within which to file a Second Amended

Complaint to reflect the legal name of Rick Casterline and Sheila Casterline, dba The

Village Lock-Up and to add Roman Sakhorov, an alleged employee of appellee Best

Choice Moving, as a defendant. The trial court stated that appellant could renew her

Motion for Default Judgment, if appropriate, after filing and serving the Second

Amended Complaint.

      {¶6}   On May 7, 2014, appellant filed a Motion for Default Judgment on

Amended Complaint and Writ of Possession against appellee A Village Storage Lock-

Up and a Motion for Default Judgment on Complaint and Amended Complaint and Writ

of Possession against appellee Best Choice Moving, Inc. The Magistrate, pursuant to

Orders filed on May 7, 2014,   denied both motions, stating that appellant had failed to

comply with the April 14, 2014 Orders. The Magistrate stated that no further pleadings

would be accepted from appellant until appellant had filed a Second Amended

Complaint on or before May 14, 2014 and served the same as instructed. The

Magistrate’s Orders stated that “should appropriate pleadings not be filed on or before

May 14, 2014, this case may be administratively dismissed by the court.”

      {¶7}   On May 15, 2014, appellant filed a Second Amended Complaint against

appellees Best Choice Moving, Inc. Rick Casterline and Sheila Casterline dba A Village

Storage Lock-Up and Roman Sakhorov. Rick Casterline and Sheila Casterline dba A

Village Storage Lock-Up filed an answer to the Second Amended Complaint on May 23,
Guernsey County, Case No. 14 CA 23                                                     4


2014.    Appellees Best Choice Moving, Inc. and Roman Sakhorov were served via

certified mail on May 22, 2014.

        {¶8}   On July 18, 2014, the Magistrate filed Scheduling Orders setting forth

various dates. The Magistrate scheduled a final pretrial conference for November 3,

2014. On October 27, 2014, appellant filed a motion seeking an extension of time

within which to file a Motion for Summary Judgment and to conduct discovery and a

Motion for Default against appellees Best Choice Moving, Inc. and Roman Sakhorov.

The Magistrate, in an Order filed on October 29, 2014, denied the same.

        {¶9}   A final settlement pretrial was held on November 3, 2014 before a

Magistrate. Appellant did not appear for the same. The Magistrate, in a Decision filed on

November 4, 2014, recommended that appellant’s case be dismissed for failure to

prosecute. The Magistrate noted that while there had been some confusion as to

appellant’s address, appellant “did acknowledge in her pleading filed on October 27,

2014 that she had received a copy of the Scheduling Order. Plaintiff has had no further

contact with the Court and failed to appear.” A Final and Appealable Order adopting the

Magistrate’s Decision was filed on the same day.

        {¶10} Appellant, on November 4, 2014, filed a Motion to Reinstate Case and

Motion to Re-Set Pre-Trial Mediation. Appellant, in her motion, alleged that she had

been in other states and did not receive a copy of the Court’s July 18, 2014 Order

setting the November 3, 2014 pretrial until she received it by e-mail on October 9, 2014.

Appellant further stated that she had advised the court by letter “last month” that she

was back in Florida and that she could not reschedule her calendar in time to make the

pretrial mediation scheduled for November 3, 2013 and make the trip from Florida to
Guernsey County, Case No. 14 CA 23                                                      5


Ohio. Appellant, on the same date, also filed a Motion for Default Judgment against

appellees Roman Sakhorov and Best Choice Moving, Inc.                The trial court, as

memorialized in an Entry filed on November 6, 2014, denied all of the motions. The trial

court denied appellant’s November 4, 2014 Motion for Default Judgment as moot.

      {¶11} Appellant now raises the following assignments of error on appeal:

      {¶12} 1.     WHETHER THE TRIAL COURT ERRED IN NOT DEFAULTING

DEFENDANT, BEST CHOICE MOVING, INC. ON THE COMPLAINT, AND BY NOT

DEFAULTING       DEFENDANTS,       BEST    CHOICE     MOVING,      INC.,   DEFENDANT,

SAKHOLOV (SIC), AND DEFENDANT, A VILLAGE STORAGE LOCK-UP, ON THE

AMENDED COMPLAINT, AND BY NOT DEFAULTING DEFENDANTS, SAKHOLOV

(SIC) AND BEST CHOICE MOVING, INC. ON THE PLAINTIFF’S SECOND AMENDED

COMPLAINT?

      {¶13} II. WHETHER THE TRIAL COURT ERRED BY DISMISSING THE CASE

WHEN THERE WAS EXCUSABLE NEGLECT?

      {¶14} II. WHETHER THE TRIAL COURT ERRED IN RENDERING JUDGMENT

IN   FAVOR    OF    DEFENDANTS,       CASTERLINES,        WITHIN    THE    ORDER      OF

DISMISSAL?

                                               I

      {¶15} Appellant, in her first assignment of error, argues that the trial court erred

in denying her Motion for Default against appellee Best Choice Moving on all of the

complaints, against appellee A Village Storage Lock-Up on the Amended Complaint and

against Roman Sakharov on the Second Amended Complaint.
Guernsey County, Case No. 14 CA 23                                                   6


       {¶16} A trial court's decision to grant or deny a motion for default judgment is

reviewed for an abuse of discretion. Queen v. Hanna, 2012–Ohio–6291, 985 N.E.2d

929, ¶ 20 (4th Dist.) citing Dye v. Smith, 189 Ohio App.3d 116, 2010–Ohio–3539, 937

N.E.2d 628, ¶ 7 (4th Dist.). 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).

       {¶17} Civ.R. 55(A) provides in pertinent part:

                     When a party against whom a judgment for affirmative

              relief is sought has failed to plead or otherwise defend as

              provided by these rules, the party entitled to a judgment by

              default shall apply in writing or orally to the court therefor * *

              *. If the party against whom judgment by default is sought

              has appeared in the action, he (or, if appearing by

              representative, his representative) shall be served with

              written notice of the application for judgment at least seven

              days prior to the hearing on such application.

       {¶18} We find that the trial court did not abuse its discretion in denying

appellant’s initial Motion for Default Judgment against appellee Best Choice Moving,

Inc. on the Complaint.      While such party had not filed an answer to appellant’s

complaint, as noted by the trial court in its March 19, 2014 Entry:

                     The court further finds that Plaintiff proposed “Order

              of Final Default Judgment And Writ of Possession”
Guernsey County, Case No. 14 CA 23                                                        7


                commands the “Guernsey County Sheriff” to deliver all of the

                Plaintiff’s Catherine Czyz’s, belongings stored at any and all

                of the storage units located at A Village Lock Up Storage in

                Old Washington, Guernsey County, Ohio to the Plaintiff

                forthwith”. The Court finds that “A Village Lock Up Storage”

                in Old Washington, Ohio is not a named party in this case

                and is not before the Court.

                       The Court therefore, finds that Plaintiff’s Motion for

                Default Judgment And Writ of Possession must be, and

                hereby is, DENIED at this time as the proper additional party

                (A Village Lock Up Storage) has not been joined in this case.

          {¶19} We find that the trial court’s decision was not arbitrary, unconscionable or

unreasonable based on the trial court’s finding that a necessary party had not been

joined.

          {¶20} Appellant further alleges that the trial court erred in denying her request

for default judgment against appellees Best Choice Moving, Inc., Roman Sakhorov and

A Village Storage Lock-Up on her Amended Complaint.

          {¶21} On April 1, 2014, appellant filed an Amended Complaint against appellees

Best Moving, Inc. and A Village Storage Lock-Up. Appellee Roman Sakhorov was not

named as a defendant. In response, appellee A Village Storage Lock-Up filed a Motion

to Dismiss, alleging that appellant had incorrectly named the wrong entity. The trial

court, in Magistrate’s Orders filed on April 14, 2014 and signed by the trial judge,

granted appellant thirty days within which to file a Second Amended Complaint “to
Guernsey County, Case No. 14 CA 23                                                      8


reflect the legal name of ‘Rick Casterline and Sheila Casterline, dba The Village Lock-

Up’ and add ‘Roman Sakhorov’ …as party defendant. The court, in the April 14, 2014

Orders, stated, in relevant part, as follows:

       {¶22} “3 (a). Defendants “Rick Casterline and Sheila Casterline, dba The Village

Lock-Up” shall be served with Amended Complaint by serving same on Attorney Daniel

G. Padden.

       {¶23} “3 (b). Plaintiff shall cause Defendant’s “Roman Sakhorov” and “Best

Choice Moving, Inc.” to be served with Ohio Rules of Civil Procedure.

       {¶24} “4. Upon filing (and service of) Second Amended Complaint and expiration

of response time in accord Ohio law, Plaintiff may renew her Motion for Default

Judgment if appropriate.”

       {¶25} However, in disregard of the trial court’s order, appellant, on May 7, 2014,

filed a Motion for Default Judgment on Amended Complaint and Writ of Possession

against appellee Best Choice Moving, Inc. and a Motion for Default Judgment on

Complaint and Amended Complaint and Writ of Possession against appellee Best

Choice Moving, Inc. The trial court denied both motions because appellant had failed to

comply with the April 14, 2014 Orders. We find that the trial court did not abuse its

discretion in denying such motions. The trial court’s decision was not arbitrary,

unconscionable or unreasonable.

       {¶26} Appellant finally argues that the trial court erred in denying her Motion for

Default Judgment against Roman Sakharov and Best Choice Moving on the Second

Amended Complaint. The Second Amended Complaint was filed on May 15, 2014.
Guernsey County, Case No. 14 CA 23                                                       9


       {¶27} We note that appellant did not file her motion until after the trial court had

dismissed her case. The trial court, therefore, properly denied the same as moot.

       {¶28} Appellant’s first assignment of error is, therefore, denied.

                                                 II

       {¶29} Appellant, in her second assignment of error, argues that the trial court

erred by dismissing her case for lack of prosecution “when there was excusable

neglect.”

       {¶30} Ohio Civil Rule 41(B)(1) governs dismissals for failure to prosecute:

       {¶31} “(B) Involuntary dismissal: effect thereof

       {¶32} “(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.”

       {¶33} The decision to dismiss a case pursuant to Civ.R. 41(B)(1) is within the

sound discretion of the trial court. Quonset Hut v. Ford Motor Company, 80 Ohio St.3d

46, 684 N.E.2d 319 (1997). Accordingly, our review of such a dismissal is limited to

determining whether the trial court abused its discretion. Id. An abuse of discretion

“connotes more than an error of law or judgment; it implies an unreasonable, arbitrary,

or unconscionable attitude on the part of the court.” Id; Pembaur v. Leis, 1 Ohio St.3d

89, 91, 437 N.E.2d 1199 (1982).

       {¶34} In Quonset Hut supra at 49, the Supreme Court held “for purposes of

Civ.R. 41(B)(1), counsel has notice of an impending dismissal with prejudice for failure

to comply with a … order when counsel has been informed that dismissal is a possibility

and has had a reasonable opportunity to defend against dismissal.” (Emphasis added).
Guernsey County, Case No. 14 CA 23                                                         10


The court noted that “the very purpose of notice is to provide a party with an opportunity

to explain its default and/or to correct it.” Id.

       {¶35} Accordingly, when a trial court proceeds under Civ.R. 41(B)(1) on its own

motion to dismiss, it can do so only after notice to the plaintiff's counsel” or to plaintiff.

Svoboda v. City of Brunswick, 6 Ohio St.3d 348, 453 N.E.2d 648 (1983). The notice

contemplated by Civ.R. 41(B)(1) includes notice prior to dismissal and an opportunity to

explain or correct a party's nonappearance. Geico Financial Serv., Inc. v. VRR, Inc. , 69

Ohio App.3d 556, 591 N.E.2d 294 (9th Dist. 1990).

       {¶36} As is stated above, the trial court dismissed appellant’s case for lack of

prosecution after appellant failed to appear for the final pretrial conference on

November 3, 2014. The Scheduling Orders setting the date, which was filed on July 18,

2014, stated that “Designated trial counsel and their clients SHALL attend said final

settlement pretrial conference.” However, the Orders did not advise appellant that

failure to appear could result in dismissal. We find, therefore, that the trial court erred in

dismissing appellant’s case.

       {¶37} Appellant’s second assignment of error is, therefore, sustained.

                                                    III

       {¶38} Appellant, in her third assignment of error, argues that the trial court did

not have authority to, in a November 6, 2014 Entry, grant judgment in favor of the

Casterlines.

       {¶39} Based on our disposition of appellant’s second assignment of error,

appellant’s third assignment of error is sustained.
Guernsey County, Case No. 14 CA 23                                               11


      {¶40} Accordingly, the judgment of the Guernsey County Court of Common

Pleas is sustained in part and reversed in part. This matter is remanded for further

proceedings consistent with this Opinion.

By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.
