[Cite as St. Vincent Charity v. Paluscsak, 2020-Ohio-1501.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
ST. VINCENT CHARITY, :
Plaintiff-Appellee, : No. 108641 v. :
MICHAEL PALUSCSAK, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: April 16, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-898214
Appearances:
Law Office of Boyd W. Gentry, Boyd W. Gentry, and Zachary P. Elliott, for appellees George Gusses Co., L.P.A., George Gusses, Robin A. Worline, and Joseph T. Szyperski.
Davis & Young, Matthew P. Baringer, and Thomas W. Wright, for appellee St. Vincent Charity Medical Center and St. Vincent Charity.
Porter Wright Morris & Arthur, L.L.P., Brodie M. Butland, and Tracey L. Turnbull, for appellee United Collection Bureau, Inc.
The Misra Law Firm, L.L.C., and Anand N. Misra; Robert S. Belovich, for appellant. FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant, Michael Paluscsak (“appellant”), brings the
instant appeal challenging the trial court’s dismissal of his counterclaim for failure
to prosecute. Specifically, appellant argues that a Civ.R. 41(B)(1) dismissal was not
warranted, the trial court failed to provide sufficient notice prior to dismissal, and
the trial court erred in denying appellant’s motion for relief from judgment. After a
thorough review of the record and law, this court reverses the trial court’s judgment
and remands the matter for further proceedings consistent with this opinion.
I. Factual and Procedural History
The instant appeal has an extremely protracted and lengthy procedural
history. We therefore limit our factual and procedural review to facts pertinent to
the instant appeal.
The instant case originated in the Cleveland Municipal Court as a debt
collection action against appellant for unpaid medical expenses in the amount of
$1,175.40. On July 11, 2017, plaintiff-appellee, St. Vincent Charity (“St. Vincent”),
filed a complaint against appellant in Cleveland M.C. No. 2017CVF009866, in an
attempt to recover these unpaid medical expenses. St. Vincent contracted with
plaintiff-appellee, United Collection Bureau, Inc. (“UCBI”), to perform debt
collection procedures for the hospital. UCBI then hired plaintiff-appellee, George
Gusses Co., L.P.A. (“Gusses”) to file the debt collection action in municipal court.
Throughout this opinion, these three parties will be referred to collectively as
“appellees.” On August 14, 2017, appellant filed an answer and counterclaims on
behalf of a putative class. Specifically, appellant asserted claims based on the Fair
Debt Collection Practices Act (“FDCPA”) and the Ohio Consumer Sales Practices Act
(“OCSPA”). Appellant also asserted claims of fraud and abuse of process.
Appellant’s counterclaims were based upon the assertion that the debt collection
action was filed by “St. Vincent Charity,” and not filed by the correct legal entity “St.
Vincent Charity Medical Center.” Appellant asserted in his counterclaim that “the
letter [from UCBI] falsely stated that [appellant] owed money to ‘St. Vincent Charity’
when there is no such entity in existence.”
Thereafter, a pretrial hearing was scheduled for September 25, 2017.
However, appellant’s counsel failed to appear at this pretrial hearing. As a result, on
October 30, 2017, the municipal court issued a judgment entry that dismissed
appellant’s counterclaims for want of prosecution. On November 22, 2017,
appellant appealed to this court. See St. Vincent Charity v. Paluscak, 8th Dist.
Cuyahoga No. 106549.
During the pendency of the appeal, appellant filed a motion for relief
from judgment pursuant to Civ.R. 60(B) on December 18, 2017. On that same day,
appellant filed a motion in this court requesting a limited remand to the municipal
court for consideration of appellant’s motion for relief from judgment. Appellant’s
motion for relief from judgment argued that he did not receive a notice of the
September 25 pretrial hearing. The scheduling of the pretrial hearing was noted on the court’s docket on August 23, 2017; however, due to a clerical error, the clerk did
not issue a notice of the pretrial hearing to the parties.
On January 8, 2018, this court granted appellant’s request and
remanded the matter to the municipal court “for the sole purpose of ruling on
[appellant’s] motion for relief from judgment.” Motion no. 513044.
On January 31, 2018, the municipal court issued a judgment entry
granting appellant’s motion for relief from judgment noting that “[d]ue to a clerical
error, the court failed to inform counsel of the [September 25, 2017] pretrial
hearing.”
On February 2, 2018, appellant filed a motion in this court to dismiss
his appeal as moot as a result of the municipal court granting his motion for relief
from judgment. On February 5, 2018, this court dismissed appellant’s appeal. See
motion no. 514485.
Thereafter, on May 14, 2018, the municipal court certified the matter
to the Cuyahoga County Court of Common Pleas, and the matter proceeded through
the pretrial process.
Notably, on January 26, 2019, the trial court entered an order
scheduling the case for mediation in the trial court’s alternative dispute resolution
department. On March 4, 2019, the parties filed a joint motion to vacate the trial
court’s order because the parties had retained a private mediator. The trial court
granted the parties’ joint motion on that same day. On March 20, 2019, the parties attended a full-day mediation session.
The mediation session did not result in a settlement, but the parties agreed to
continue to utilize the mediation process.
Then on March 27, 2019, the parties filed a joint motion to excuse the
parties’ representatives at a pretrial scheduled for April 2, 2019, but acknowledged
that the parties’ counsel would attend the pretrial. On April 1, 2019, the trial court
granted the joint motion. A pretrial was then had on April 2, 2019, with the parties’
counsel, and as a result of the pretrial hearing, the trial court issued a journal entry
that stated in full
Pretrial held on 04/02/2019. All parties were present through counsel. The parties are attempting to settle this matter. * * * The court set the following case schedule: Pretrial set for 05/07/2019 at 01:30 PM. Pretrial to be conducted by telephone to act as a status conference in this matter. * * * Failure to appear at any court scheduled event in the future may result in dismissal of plaintiff’s claims for want of prosecution or judgment rendered against defendant.
Thereafter, appellant’s counsel failed to appear for the May 7, 2019
pretrial. The trial court issued a journal entry on May 7, 2019, dismissing appellant’s
counterclaims for want of prosecution. The trial court’s journal entry stated that
appellees appeared at the pretrial through counsel and counsel for appellant failed
to appear. The trial court further stated that “pursuant to this court’s prior order
dated 04/03/2019, [appellant’s] counterclaims are hereby dismissed without
prejudice for want of prosecution.” On the following day, May 8, 2019, appellant filed a motion to
reconsider or in the alternative a motion for relief from judgment. On May 24, 2019,
the trial court issued a journal entry denying appellant’s motion.
On June 4, 2019, appellant filed his notice of appeal. This court, on
June 12, 2019, issued a sua sponte order dismissing appellant’s appeal for lack of a
final appealable order. Motion no. 529305. In that order, this court noted that “[a]n
action dismissed without prejudice for failure to prosecute is a dismissal otherwise
than on the merits, and as such, is not a final appealable order.” This court also
noted that “appellant’s appeal of the trial court’s denial of his motion to vacate the
dismissal is not a final appealable order.”
Appellant then filed a motion for reconsideration pursuant to App.R.
26(A). This court granted appellant’s motion for reconsideration based upon the fact
that appellant’s federal claims could not be refiled because the Ohio savings statute
does not pertain to the federal claims. Wells Fargo Bank, N.A. v. Wick, 8th Dist.
Cuyahoga Nos. 99373 and 99840, 2013-Ohio-5422, ¶ 6. The instant appeal was then
reinstated.
In the instant appeal, appellant assigns two errors for our review.
I. The trial court committed prejudicial error in dismissing the counterclaim for lack of prosecution.
II. The trial court committed prejudicial error in denying the motion for relief from judgment pursuant to [Civ.R. 60(B)(1)]. II. Law and Analysis
A. Final Appealable Order
As an initial matter, appellees in their briefs contest this court’s
previous order granting appellant’s motion for reconsideration. Appellees argue
that the trial court’s dismissal in its May 7, 2019 journal entry dismissed appellant’s
counterclaims “without prejudice.” As a result, appellees argue that the instant
appeal should be dismissed for lack of a final appealable order.
In his counterclaim, appellant asserted FDCPA and OCSPA claims.
Appellant also asserted claims of fraud and abuse of process. The trial court’s May 7,
2019 journal entry dismissing appellant’s counterclaims stated that the claims were
dismissed “without prejudice.” However, because appellant’s FDCPA claim cannot
be refiled due to the expiration of the statute of limitations, the trial court’s dismissal
is with prejudice. Wick, 8th Dist. Cuyahoga Nos. 99373 and 99840, 2013-Ohio-
5422, at ¶ 6. As such, the trial court’s dismissal of appellant’s counterclaims
constituted a final appealable order.
B. Dismissal of Appellant’s Counterclaims
In his first assignment of error, appellant argues that the trial court
committed prejudicial error when it dismissed his counterclaim for lack of
prosecution.
Pursuant to Civ.R. 41(B)(1), “[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.” Civ.R. 41(B)(3) provides that a dismissal for failure to prosecute “operates
as an adjudication upon the merits unless the court, in its order for dismissal,
otherwise specifies.”
As noted above, the trial court dismissed appellant’s counterclaim,
pursuant to Civ.R. 41(B)(1), for failure to prosecute. The trial court specified in its
May 7, 2019 order that the dismissal was “without prejudice.”
“The decision to dismiss a complaint for failure to prosecute is within
the sound discretion of the trial court, and an appellate court’s review of such a
dismissal is confined solely to the question of whether the trial court abused its
discretion.” Jones v. Hartranft, 78 Ohio St.3d 368, 371, 678 N.E.2d 530 (1997),
citing Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437 N.E.2d 1199 (1982). A trial court
abuses its discretion when its judgment is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
During oral arguments, appellees collectively disputed whether
appellant’s FDCPA claim is, in fact, barred based on the trial court’s dismissal.
Appellees appeared to suggest that appellant can refile his FDCPA claim and, when
appellees raise the statute-of-limitations issue, appellant can present an equitable
tolling argument.
We decline to depart from this court’s holding in Wick. The effect of
the trial court’s dismissal of appellant’s FDCPA claim was a dismissal with prejudice. The statute of limitations has expired, and as a result, appellant is barred from
refiling his FDCPA claim.
Although the abuse of discretion standard of review is typically
applied to dismissals for failure to prosecute or dismissals with prejudice, “that
standard is actually heightened when reviewing decisions that forever deny a
plaintiff a review of a claim’s merits.” Jones, 78 Ohio St.3d at 372, 678 N.E.2d 530.
This court has previously explained, “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.” Simmons v. Narine, 2014-Ohio-2771, 15 N.E.3d 1206, ¶ 7 (8th
Dist.), quoting Ocran v. Richlak, 8th Dist. Cuyahoga No. 99856, 2013-Ohio-4603,
¶ 12, citing Autovest, L.L.C. v. Swanson, 8th Dist. Cuyahoga No. 88803, 2007-Ohio-
3921, ¶ 18.
Our review of the trial court’s dismissal of appellant’s counterclaims
involves two steps. First, we must determine whether the trial court provided
sufficient notice to the parties 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. 1. Factors Warranting Dismissal
Appellant contends that his counsel’s failure to attend the May 7, 2019
pretrial was due to inadvertent miscommunications between appellant’s two
attorneys, Anand Misra and Robert Belovich. In appellant’s motion for relief from
judgment,1 appellant detailed the “unusual circumstances” that led to the
miscommunication between Misra and Belovich, and ultimately the failure to
participate in the May 7, 2019 phone conference:
One of [appellant’s] counsel, [Misra], has been overseas since before the April 2, 2019 pretrial. As a result, there were failures of communication regarding the May 7, 2019 telephone pretrial, resulting in the date not being calendared on either of [appellant’s] counsel[’s] calendars. Moreover, [Belovich] who attended the in person pretrial on April 2nd mistakenly understood May 7th to be date for a status report.
In this appeal, appellant contends that the factors warranting a
dismissal — willfulness, bad faith, or a disregard for the judicial system or appellees
— were not present. We agree.
The proper factors to consider in reviewing a Civ.R. 41(B)(1) dismissal
with prejudice include
the drawn-out history of the litigation, including a plaintiff’s failure to respond to interrogatories until threatened with dismissal, and other evidence that a plaintiff is deliberately proceeding in dilatory fashion or has done so in a previously filed, and voluntarily dismissed, action. See Link v. Wabash RR. Co.[, 370 U.S. 626, 633-635, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)]; Indus. Risk Insurers v. Lorenz Equip. Co.[, 69 Ohio St.3d 576, 635 N.E.2d 14 (1994), syllabus].
1 Appellant’s attorneys submitted affidavits in support of the motion for reconsideration or relief from judgment. Jones, 78 Ohio St.3d at 372, 678 N.E.2d 530. In Toney v. Berkemer, 6 Ohio St.3d
455, 453 N.E.2d 700 (1983), the Ohio Supreme Court adopted the United States
Supreme Court’s holding in Societe Internationale v. Rogers, 357 U.S. 197, 212, 78
S.Ct. 1087, 2 L.Ed.2d 1255 (1958), that “the harsh remedies of dismissal and default
should only be used when the ‘* * * failure to comply has been due to * * * willfulness,
bad faith, or any fault [of a party].’” (Emphasis added.) Toney at 458, quoting
Societe Internationale at 212.
In considering dismissal under Civ.R. 41(B)(1), a trial court may properly take into account the entire history of the litigation, including plaintiff’s dilatory conduct in a previously filed, and voluntarily dismissed, action. See [Jones at 372]; Indus. Risk Insurers [at the syllabus]. However, “the 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.” [Moore v. Emmanuel Family Training Ctr., Inc., 18 Ohio St.3d 64, 70, 479 N.E.2d 879 (1985)]. In other words, dismissal is reserved for those cases in which “‘‘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.’’” [Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 48, 684 N.E.2d 319 (1997), 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 should first consider lesser sanctions before dismissing a case with prejudice. Jones [at 371-372]. See also 9 Wright & Miller, Federal Practice and Procedure (1995) 340, Section 2369; 5A Wright & Miller (1990), supra, at 640-641, Section 1379. It is “a basic tenet of Ohio jurisprudence that cases should be decided on their merits.” Perotti v. Ferguson[, 7 Ohio St.3d 1, 3, 454 N.E.2d 951 (1983)].
Sazima v. Chalko, 86 Ohio St. 3d 151, 158, 71 N.E.2d 729 (1999).
In the instant matter, after reviewing the record, we find no basis upon
which to conclude that the conduct of appellant or appellant’s counsel warranted a dismissal of the counterclaim based on counsel’s failure to participate in the May 7,
2019 phone conference. First, the record reflects that appellant vigorously
prosecuted his counterclaim for nearly two years, between August 2017 and May
2019.
Second, the record reflects that appellant’s counsel’s failure to
participate in the May 7, 2019 phone conference was a result of an inadvertent lapse
in communication between appellant’s attorneys, and did not rise to the level of
negligent, irresponsible, or dilatory conduct warranting the dismissal, much less a
complete disregard for the judicial system, the trial court, or appellees’ rights.
Appellant’s co-counsel, Anand Misra, submitted an affidavit in
support of appellant’s motion for reconsideration or for relief from the trial court’s
May 7, 2019 dismissal of the counterclaim. Therein, Misra averred that he typically
takes the initiative to calendar litigation events when he is co-counsel on a case with
Belovich. He was unable to attend the April 2, 2019 pretrial conference because he
was traveling overseas. During his travel — including on April 3, 2019, when the
trial court issued the journal entry and scheduled the May 7, 2019 phone conference
— he had limited access to the internet. Based on these internet and technical issues,
Misra only communicated with Belovich sporadically. Under these circumstances,
Misra assumed that Belovich would take over the duty of calendaring litigation
events. Belovich averred in his affidavit that he was under the impression that Misra
would calendar the litigation events, as was typically the case when the handled a
case together. Third, in addition to vigorously prosecuting his counterclaim, the
record reflects that appellant participated in mediation. After the trial court referred
the matter to mediation in January 26, 2019, appellant participated in the mediation
session on March 20, 2019, and proposed a settlement that was taken under
consideration by appellees. The parties, including counsel for appellant, filed a
“joint motion to excuse attendance of party representatives at the April 2, 2019
conference” in which they provided an update to the trial court on the status of
mediation. The motion provided, in relevant part,
[o]n March 20, 2019, the Parties mediated the case[.] * * * The Parties did not settle the dispute at that mediation, but they were able to discuss a potential framework to resolve the matter at the end of mediation. That framework, however, is dependent on a variety of complex issues that the parties are still investigating (and will still be investigating at the time of the April 2 conference), and which will require additional time for discussions between themselves, the mediator, and third parties.
Appellant’s counsel participated in the April 2, 2019 pretrial
conference during which the May 7, 2019 phone conference was scheduled. The trial
court’s April 3, 2019 journal entry acknowledged the ongoing nature of mediation,
providing, “[t]he parties are attempting to settle this matter.”
In his affidavit, Belovich detailed the discussions that took place
during the April 2, 2019 conference. Appellant’s counsel asserted that mediation
had been continued “to allow [appellees] additional time to evaluate an aspect of a
settlement proposal made by [appellant],” and that “[c]ounsel for [St. Vincent]
stated that his client would likely require additional time to evaluate the type of class relief proposed by [appellant.]” Belovich asserted that he was under the impression
the parties were only required to provide a mediation status update to the trial court
on May 7, 2019, rather than participating in the previously scheduled phone
conference. He believed that appellees would provide the update to the trial court
because they were considering the settlement proposed by appellant. Finally,
Belovich averred that he made a suggestion to the trial court’s law clerk that the
parties provide a mediation status update to the court on May 7, 2019, rather than
having a phone conference, in the interests of judicial economy.
Accordingly, the record reflects that appellant’s failure to participate
in the May 7, 2019 phone conference was based, in part, on the status of the
mediation at the time of the phone conference — appellant had proposed a
settlement that was taken under advisement by appellees, and appellant was
awaiting a response regarding the proposal.
Finally, there is no evidence in the record before this court that the
trial court considered less severe sanctions. In the motion for reconsideration or for
relief from judgment, appellant’s attorneys acknowledged the “extraordinary
circumstances” that led to the failure to participate in the May 7, 2019 phone
conference. Appellant’s counsel suggested that a monetary sanction would be
appropriate for wasting the resources of the trial court and the other parties. There
is no indication that the trial court took this suggestion, or less severe sanctions, into
consideration before dismissing appellant’s counterclaim. Based on the foregoing analysis, we find that appellant’s failure to
participate in the May 7, 2019 phone conference was the result of an inadvertent
communication and scheduling error, and the status of settlement negotiations in
mediation. This error, that was acknowledged and detailed by both of appellant’s
attorneys, does not constitute extreme circumstances or substantial grounds
warranting dismissal of appellant’s counterclaim for failure to prosecute. As this
court has recognized,
Dismissal with prejudice for nonappearance at a pretrial hearing is a drastic remedy which should be used sparingly and in extreme situations. Unless a party’s conduct is so negligent, irresponsible, contumacious, or dilatory as to provide substantial grounds for dismissal with prejudice, a court should consider lesser sanctions when a party fails to appear at a hearing.
Willis v RCA Corp., 12 Ohio App.3d 1, 2, 465 N.E.2d 924 (8th Dist.1983).
For all of the foregoing reasons, we find that the trial court’s dismissal
of the counterclaim based on appellant’s counsel’s failure to participate in the May
7, 2019 phone conference was unreasonable, arbitrary, and unconscionable.
2. Notice
The record also reflects that the trial court did not provide sufficient
notice to appellant or his counsel before dismissing the counterclaim.
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. This court has previously noted that “[t]he 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.”
Youngblood v. Kindred Healthcare, 8th Dist. Cuyahoga No. 94442, 2010-Ohio-
4358, ¶ 13, citing Logsdon at 128.
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., 80 Ohio St.3d at 49, 684 N.E.2d
319. 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. This notice that is required by Civ.R. 41(B)(1)
need not be actual but may be implied when reasonable under the circumstances.
Sazima, 86 Ohio St.3d at 155, 712 N.E.2d 729, quoting Quonset Hut, Inc. at id.
“[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).
In the instant matter, the trial court’s April 3, 2019 journal entry, in
which the May 7, 2019 phone conference was scheduled, provides, in relevant part, “[f]ailure to appear at any court scheduled event in the future may result in dismissal
of plaintiff’s claims for want of prosecution or judgment rendered against
defendant.” However, the record reflects that the trial court incorporated this
language into all of its journal entries pertaining to pretrial hearings. We cannot
conclude that this language constitutes sufficient notice that failure to participate in
the May 7, 2019 phone conference may result in dismissal for failure to prosecute
based on the status of mediation and settlement negotiations set forth above.
The record is devoid of any evidence indicating that the court or
appellees attempted to contact appellant or appellant’s counsel before or during the
phone conference when appellant’s counsel did not participate. Nor is there any
indication in the record that the trial court contacted appellant or appellant’s
counsel after the phone conference before dismissing the case.
The phone conference was scheduled for 1:30 p.m. The trial court’s
journal entry dismissing the counterclaim for failure to prosecute was filed on
May 7, 2019, at 4:23 p.m. Under these circumstances, appellant did not receive
sufficient notice, much less an opportunity to defend against dismissal, before the
trial court dismissed the counterclaim for failure to prosecute.
Finally, the record reflects that the trial court may have been confused
about the effect of the dismissal or unaware that the dismissal barred appellant from
refiling his FDCPA claims. The language in the trial court’s May 7, 2019 journal
entry of dismissal — dismissing the case “without prejudice” and designating the
judgment as “partial” rather than “final” — suggests that the trial court did not intend to extinguish, or was unaware that the dismissal would extinguish,
appellant’s FDCPA claims.
For all of the foregoing reasons, appellant’s first assignment of error
is sustained. The trial court abused its discretion in dismissing appellant’s
counterclaim for failure to prosecute based on appellant’s failure to participate in
the May 7, 2019 phone conference. Our resolution of appellant’s first assignment of
error renders the second assignment of error moot.
The trial court’s judgment is reversed, and the matter is remanded for
further proceedings consistent with this opinion.
It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas 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.
______________________________ FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and MARY EILEEN KILBANE, J., CONCUR