Svoboda v. City of Brunswick

453 N.E.2d 648, 6 Ohio St. 3d 348, 6 Ohio B. 403, 1983 Ohio LEXIS 835

• Court: Ohio Supreme Court
• Decided: August 31, 1983
• Docket: No. 82-915
• Status: Published

Opinions

Per Curiam.

The question in this appeal is whether the trial court erred in holding that the plaintiff was not entitled to relief from judgment under Civ. R. 60 (B). Whether plaintiff is entitled to relief from judgment depends upon whether the particular difficulties he faced in obtaining an attorney may be considered “excusable neglect” under Civ. R. 60 (B)(1).

The extent to which certain actions may be regarded as constituting “excusable neglect” was examined by this court in Colley v. Bazell (1980), 64 Ohio St. 2d 243, 248 [18 O.O.3d 442], wherein we stated:

“* * * [T]he concept of ‘excusable neglect’ must be construed in keeping with the proposition that Civ. R. 60 (B)(1) is a remedial rule to be liberally construed, while bearing in mind that Civ. R. 60 (B) constitutes an attempt to ‘strike a proper balance between the conflicting principles that litigation must be brought to an end and justice should be done.’ 11 Wright & Miller, Federal Practice & Procedure 140, Section 2851, quoted in Doddridge v. Fitzpatrick (1978), 53 Ohio St. 2d 9, 12 [7 O.O.3d 5].”

The trial court had no authority to dismiss the action. There is no Civil Rule, statute or legal precedent empowering a trial court five months after an action is filed and preceding even the setting of a date for pretrial conference, as in this case, to dismiss an action for want of prosecution for failure of plaintiff to obtain legal counsel within ten days after the court’s request of plaintiff to obtain such counsel. Nor does diligent research reveal any precedent giving a trial court inherent judicial power to dismiss an action for want of prosecution because one of the parties fails to have legal counsel as requested by the trial court. Moreover, common sense as well as the law compels a conclusion that a trial judge has no authority to order a party to retain legal counsel. The prohibition against the practice of law by a layman does not prevent a layman from representing himself. 6 Ohio Jurisprudence 3d 611, Attorneys at Law, Section 88; Code of Professional Responsibility, Canon 3, EC 3-7.

The action of the trial court on the facts in this case does not fit within his power to order an involuntary dismissal for failure to prosecute as provided in Civ. R. 41 (B)(1) as follows:

“(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.”

The Staff Note to the July 1, 1972 amendment of Civ. R. 41 (B)(1) states:

“Rule 41 (B)(1), governing dismissal of an action for failure of the plaintiff to prosecute, has been reworded by amendment to enhance procedural clarity. As amended, the rule makes clear that a motion, either by the defendant or by the court, is the proper procedural device for implementing the dismissal of an action when plaintiff fails to prosecute or comply with ‘these rules’ or a court order.”

In the case at bar there was no “motion” by the defendant or by the court pertaining to dismissal under Civ. R. 41 (B)(1), or any “court order” within the meaning of such rule with which the plaintiff failed to comply. Furthermore, when the 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. No such notice was given by the trial court. In re Appeal of Little Printing Co. (1980), 70 Ohio App. 2d 182 [24 O.O.3d 284]; Metcalf v. Ohio State Univ. Hosp. (1981), 2 Ohio App. 3d 166. It was an abuse of discretion by the trial court to dismiss this action for want of prosecution where notice was not given to the plaintiff, or to plaintiff’s counsel, prior to dismissal that the action would be dismissed. See Pembaur v. Leis (1982), 1 Ohio St. 3d 89; Allstate Ins. Co. v. Rule (1980), 64 Ohio St. 2d 67, 69 [18 O.O.3d 299]; Curtis v. Chiaramonte (1978), 53 Ohio St. 2d 15 [7 O.O.3d 61].

Furthermore, since the trial court had no right to order plaintiff to obtain legal counsel, it had no right or power to make a valid “court order” within the meaning of Civ. R. 41 (B)(1) to that effect, and then to dismiss the action for failure to comply with such void court order.

That in the instant case the trial judge had no lawful authority, under Civ. R. 41 (B)(1) or otherwise, to dismiss this action for want of prosecution distinguishes it from the cases of Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St. 3d 64, and Blasco v. Mislik (1982), 69 Ohio St. 2d 684 [23 O.O.3d 684]. Both Caruso-Ciresi and Blasco, supra, are distinguishable because in those cases the underlying judgments sought to be vacated under Civ. R. 60 (B) were default judgments that were obtained lawfully pursuant to the Civil Rules. By contrast, in the case at bar, there was an unlawful dismissal of the action because it was predicated upon noncompliance with a void court order.

In Blasco, supra, the majority recognized at page 685 that “Civ. R. 60 (B) is a remedial rule and should be liberally construed,” citing Colley v. Bazell, supra. This standard of liberality is consistent with the oft-stated general principle that Civ. R. 60 (B)(5) is a provision whereby a court may relieve a party from judgment for any other reason than set forth in Civ. R. 60 (B)(1) to (4) justifying relief from judgment. Our conclusion that the requirements for a motion to vacate have been satisfied herein is buttressed by the purposes of the rule of permitting relief in the interests of justice. Any doubt should be resolved in favor of the movant so that cases may be decided on the merits. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St. 2d 146 [1 O.O.3d 86]; Caruso-Ciresi, Inc. v. Lohman, supra, dissent at page 67.

In view of these considerations and applying the principle that doubt, if any, should be resolved in favor of the motion to vacate, GTE Automatic Electric, supra, at page 151; Samson Sales v. Honeywell, Inc. (1981), 66 Ohio St. 2d 290 [20 O.O.3d 277], at page 294; 7 Moore’s Federal Practice (2 Ed.) 232-233, Paragraph 60.19, we find that the trial court erred in refusing to vacate its judgment dismissing the negligence action.

In order to prevail on a motion brought under Civ. R. 60 (B), a movant must show (1) the existence of a meritorious defense or claim, (2) entitlement to relief under one of the grounds set forth in the rule, and (3) that the motion is made within a reasonable time. GTE Automatic Electric, supra, paragraph two of the syllabus. Here the plaintiff met all three prongs of the test:

First, plaintiff’s complaint set forth sufficient facts to support the existence of a meritorious claim sounding in negligence; second, under the circumstances herein presented, plaintiff’s inability to obtain legal counsel constituted “excusable neglect” under Civ. R. 60 (B)(1); and third, plaintiff’s Civ. R. 60 (B) motion was made within a “reasonable time” within the meaning of the rule.

The primary objective and function of our courts is to adjudicate cases on the merits by applying the substantive law whenever possible, and not to adjudicate cases with finality upon a strained construction of procedural law yielding unjust results.

Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the common pleas court for further proceedings consistent with this opinion.

Judgment reversed.

Celebrezze, C.J., Sweeney, Locher, C. Brown and J. P. Celebrezze, JJ., concur. W. Brown and Holmes, JJ., dissent.