Harmon v. Walters

2025 Ohio 1037

• Court: Ohio Court of Appeals
• Decided: March 26, 2025
• Docket: C-240321
• Status: Published

Opinion

[Cite as Harmon v. Walters, 2025-Ohio-1037.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

JAMES HARMON, JR., : APPEAL NO. C-240321 TRIAL NO. A-2202354 Plaintiff-Appellant, :

vs. :

MELANEY WALTERS, : OPINION

and :

JAMES GRAY, :

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: March 26, 2025

Paul Croushore, for Plaintiff-Appellant,

Joseph P. Hoerig, for Defendants-Appellees. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Presiding Judge.

{¶1} Plaintiff-appellant James Harmon, Jr., appeals the judgment of the trial

court dismissing his case under Civ.R. 41(B)(1). For the reasons set forth below, we

reverse the trial court’s judgment and remand the matter to the trial court for further

proceedings.

I. Factual and Procedural History

{¶2} Harmon filed the instant personal-injury complaint against defendants-

appellees Melaney Walters and James Gray (“defendants”) on June 29, 2022, after an

automobile accident that occurred on April 9, 2017.

{¶3} In total, three attorneys took action on Harmon’s behalf below. One

attorney and a law firm filed the complaint on behalf of Harmon. A second attorney

filed the classification form with the complaint, while a third attorney, for whom the

law firm was named, paid the initial case deposit and was also listed as Harmon’s

attorney on the summonses issued to defendants.

{¶4} Defendants moved to continue the initial trial date, which the trial court

had set for August 23, 2023. The case scheduling order reflects that the third attorney

participated by phone on Harmon’s behalf at a hearing on defendants’ motion. At the

hearing, the trial court granted defendants’ motion and issued a revised case

scheduling order. Pursuant to the revised order, the trial court scheduled a pretrial

conference on May 28, 2024, with pretrial statements due two days prior, and a jury

trial on June 10, 2024.

{¶5} On March 1, 2024, the first attorney filed a notice of withdraw of co-

counsel. In the notice, the attorney stated that Harmon would continue to be

represented by the second and third attorneys.

{¶6} But on March 13, 2024, both of those lawyers filed a motion to withdraw OHIO FIRST DISTRICT COURT OF APPEALS

as Harmon’s counsel, advising the court that Harmon had terminated their

representation. The second attorney attached a certificate of service certifying that

she had served a copy of the motion on Harmon via email.

{¶7} On March 27, 2024, the trial court granted counsels’ motion to

withdraw. In its written entry, the trial court indicated that the case remained set for

pretrial conference on May 28, 2024, and for a jury trial on June 10, 2024. But the

entry altered the deadline for the submission of pretrial statements, despite the fact

that no party had sought to alter the existing schedule. Rather than requiring the

parties to submit pretrial statements two days before the May 28, 2024 pretrial

conference, as its earlier scheduling order had required, the March 27, 2024 entry

instead set a due date of May 10, 2024, for pretrial statements. The entry also required

the submission of exhibit and witness lists and damage calculations by that date. It

further indicated that “[f]ailure to file timely may result in in dismissal and/or

sanctions.”

{¶8} On April 10, 2024, Harmon filed a pro se motion requesting that the

trial court continue the June 10, 2024 trial date. As grounds for the motion, Harmon

represented that he had been unable to either obtain his case file from his previous

attorneys or to secure new counsel. Defendants opposed Harmon’s motion.

{¶9} On April 14, 2024, the trial court denied Harmon’s motion to continue

the trial. Its order stated that “[t]he [c]ourt was very clear with all parties last month

that no continuances would be granted. The [c]ourt reiterates all the dates from the

March 27, 2024 Order Granting Motion to Withdraw as Counsel and failure to timely

comply may result in dismissal and/or sanctions.”

{¶10} Harmon appealed the trial court’s April 14, 2024 entry denying his

motion for a continuance to this court. While Harmon’s appeal was pending before

3 OHIO FIRST DISTRICT COURT OF APPEALS

this court, the trial court’s May 10, 2024 deadline for the submission of pretrial

statements and other trial documents expired without action by Harmon.

{¶11} On May 22, 2024, we dismissed Harmon’s appeal for lack of a final,

appealable order. One day later, on May 23, 2024, the trial court issued an entry

dismissing Harmon’s case under Civ.R. 41(B)(1) for failure to file pretrial statements,

and witness, exhibits, and damages lists by May 10, 2024, as provided in the court’s

March 27, 2024 order. This appeal by Harmon ensued.

II. Analysis

A. Counsels’ Motion to Withdraw

{¶12} In Harmon’s first assignment of error, he argues that the trial court

erred in permitting his attorneys to withdraw.

{¶13} An appellate court reviews a trial court’s decision granting an attorney’s

motion to withdraw for an abuse of discretion. Ark Advanced Remediation, LLC v.

Watson, 2024-Ohio-2874, ¶ 21 (4th Dist.). A party in a civil action has no generalized

right to counsel. McConnell v. McConnell, 2013-Ohio-694, ¶ 17 (4th Dist.).

{¶14} Harmon appears to argue that when the first attorney filed his notice to

withdraw as counsel, Harmon was somehow left without counsel. However, the record

reflects that the second and third attorneys represented Harmon in the case, along

with the first attorney, from its inception. Although the first attorney filed the

complaint, the second attorney filed the initial classification form, and the third

attorney was listed as Harmon’s counsel on the summonses issued to defendants. The

third attorney also appeared via phone on Harmon’s behalf at the case-management

conference. We see no abuse of discretion in the trial court’s decision permitting the

withdrawal of the first attorney under these circumstances.

{¶15} Harmon also argues that he did not receive notice of the motion to

4 OHIO FIRST DISTRICT COURT OF APPEALS

withdraw filed by the second and third attorneys, but the record again belies Harmon’s

argument. According to the withdrawal motion, Harmon actually terminated his

lawyers. Harmon attended the trial court’s hearing on counsels’ motion to withdraw,

and Harmon told the trial court that he did not object to their withdrawal. Harmon

therefore waived any issue with regard to the withdrawal of his second and third

attorneys. See McDerment v. McDerment, 2019-Ohio-2609, ¶ 13 (9th Dist.) (holding

that civil litigant waived challenge to his attorney’s withdrawal by failing to object

before the trial court).

{¶16} Therefore, the trial court did not abuse its discretion in granting

counsels’ motion to withdraw, and we overrule Harmon’s first assignment of error.

B. Involuntary Dismissal

{¶17} Harmon’s second and third assignments of error both challenge the trial

court’s order dismissing Harmon’s case under Civ.R. 41(B)(1). The trial court issued

its decision one day after Harmon’s first appeal was dismissed on the grounds that

Harmon did not comply with the adjusted deadlines in the court’s March 27, 2024

order. Harmon’s second assignment of error contends that the trial court abused its

discretion in dismissing his case based on his failure to comply with pretrial deadlines

where the deadlines contradicted those in the initial case scheduling order and where

the defendants had similarly not complied with the revised deadlines. In Harmon’s

third assignment of error, he argues that the trial court erred in dismissing his case

without giving him notice and opportunity to “come into compliance.”

{¶18} 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.” This court reviews a trial court’s decision to dismiss an action under Civ.R.

5 OHIO FIRST DISTRICT COURT OF APPEALS

41(B)(1) for an abuse of discretion; however, whether the plaintiff had adequate notice

of the possible dismissal is a legal issue that this court reviews de novo. Vinebrook

Homes, LLC v. Perkins, 2023-Ohio-3721, ¶ 14 (1st Dist.).

{¶19} Civ.R. 41(B)(1)’s notice requirement is satisfied where plaintiff “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

(1997). As the Ohio Supreme Court has explained, “[t]he purpose of notice is to

‘provide the party in default an opportunity to explain the default or to correct it, or to

explain why the case should not be dismissed with prejudice.’” Logsdon v. Nichols, 72

Ohio St.3d 124, 128 (1995), quoting McCormac, Ohio Civil Rules Practice, §13.07, at

356-357 (2d Ed. 1992); see Sazima v. Chalko, 86 Ohio St.3d 151, 155 (1999) (“The

purpose of notice is to give the party who is in jeopardy of having his or her action or

claim dismissed one last chance to comply with the order or to explain the default.”).

Thus, both notice of the possibility of dismissal and a reasonable opportunity to

explain or correct the default or to explain why dismissal is not warranted are required

before a Civ.R. 41(B)(1) dismissal is proper.

{¶20} We observed as much in Vinebrook Homes, LLC, at ¶ 15, 18. There, we

held that the defendants lacked sufficient notice that their counterclaims would be

dismissed by the trial court when the defendants missed their scheduled trial date, and

the trial court contemporaneously dismissed their counterclaims. Id. Even though

the trial court had warned the defendants that no trial continuances would be granted,

we held that the trial court’s admonishment was not sufficient to inform the

defendants that their failure to appear at trial would result in dismissal of their

counterclaims. Id. at ¶ 11, 17. We accordingly concluded that the defendants should

have received an opportunity to explain their failure to appear prior to dismissal. Id.

6 OHIO FIRST DISTRICT COURT OF APPEALS

at ¶ 18.

{¶21} In this case, the trial court provided Harmon with notice that

noncompliance with pretrial filing deadlines may result in dismissal of his action

when, in its March 27, 2024 order, it noted that “[f]ailure to file timely may result in

dismissal and/or sanctions.” Although Harmon argues that he did not receive notice

of the trial court’s March 27, 2024 order, his motion to continue the trial date, which

he filed on April 10, 2024, specifically referenced the trial court’s March 27, 2024

order. Furthermore, the trial court’s entry denying Harmon’s motion for a

continuance from which Harmon appealed also specifically stated that “the dates from

the March 27, 2024 Order Granting Motion to Withdraw as Counsel and failure to

timely comply may result in dismissal and/or sanctions.” Thus, not only did the trial

court provide notice that dismissal was possible, but it appears that Harmon also

received that notice.

{¶22} However, the trial court did not give Harmon an opportunity to explain

his noncompliance with the May 10, 2024 pretrial filing deadline before dismissing his

case. Instead, the trial court simply dismissed his complaint on its own accord the day

after Harmon’s first appeal was dismissed. This constitutes an abuse of discretion

under Civ.R. 41(B)(1) and Vinebrook Homes, LLC, 2023-Ohio-3721, at ¶ 18 (1st Dist.).

{¶23} Harmon offers a number of explanations for his inattention to the May

10, 2024 pretrial filing deadline in his appellate briefing. These include (1) that the

matter was on appeal as of May 10, 2024, thus depriving the trial court of jurisdiction

to proceed with pretrial actions, (2) that he had not properly been served with the

March 27, 2024 order modifying the pretrial deadlines and therefore could not be

expected to comply with it, and (3) that defendants also did not comply with the

revised due dates, mitigating against dismissal as a sanction. Without passing

7 OHIO FIRST DISTRICT COURT OF APPEALS

judgment as to whether these arguments have merit, we note that a hearing permitting

Harmon to explain his position is not an exercise in futility, as Harmon raises at least

possibly plausible arguments that the trial court should resolve in the first instance

under Civ.R. 41(B)(1).

{¶24} We appreciate defendants’ frustration with what they perceive to be as

dilatory conduct on Harmon’s part. The accident which forms the basis of Harmon’s

lawsuit occurred in April 2017, seven years ago. Harmon filed his case once, and then

dismissed it, before filing the case again in 2022. The trial court agreed to move the

original trial date ahead almost a year—from August 2023 to June 2024, and then

Harmon terminated his lawyers with less than three months until trial. The trial court

set clear expectations that the trial date remained firm, but Harmon requested a

continuance anyway. When the trial court denied the continuance, Harmon appealed

that order, even though the order was not final and appealable. See Harmon v.

Walters, No. C-240271 (1st Dist. May 22, 2024).

{¶25} Nonetheless, the trial court’s sua sponte dismissal of Harmon’s case did

not give Harmon one last opportunity to explain his failure to meet the May 10, 2024

pretrial filing deadline. Therefore, we sustain Harmon’s second and third assignments

of error insofar as we determine that the trial court erred in dismissing Harmon’s case

with prejudice under Civ.R. 41(B)(1) without providing Harmon an opportunity to

explain his noncompliance.

III. Conclusion

{¶26} We reverse the trial court’s judgment dismissing Harmon’s case, and we

remand the matter to the trial court for further proceedings consistent with this

opinion and the law.

Judgment reversed and cause remanded.

8 OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS and BOCK, JJ., concur.

Please note:

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