Heard v. Sharp , 50 Ohio App. 3d 34 ( 1988 )

I agree with the majority that the trial court properly denied the requested continuance and properly dismissed the plaintiff's case. However, I believe that the court exceeded its authority by dismissing the case with prejudice.

The record fails to show that the plaintiff's absence was so negligent, irresponsible, contumacious or dilatory as to justify a dismissal with prejudice. Cf. Schreiner v. karson (1977),52 Ohio App.2d 219, 223, 6 O.O. 3d 237, 239, 369 N.E.2d 800, 803. The court abused its discretion when the record does not show that the failure to appear was willful or in bad faith. Cf.American Housing Corp. v. Rhoades (1981), 1 Ohio App.3d 130,131, 1 OBR 437, 438, 439 N.E.2d 946, 947; Dukes v. Cole (1985),23 Ohio App.3d 65, 66, 23 OBR 110, 111, 491 N.E.2d 374, 376;Toney v. Berkemer (1983), 6 Ohio St.3d 455, 6 OBR 496,453 N.E.2d 700, syllabus (default for failure to comply with discovery order).

This court has repeatedly ruled that a dismissal with prejudice exceeds the court's authority where the record does not show deliberate misconduct by the absent plaintiff. Willis v. RCACorp. (1983), 12 Ohio App.3d 1, 2-3, 12 OBR 57, 59,465 N.E.2d 924, 926; Advanced Electronic Technologies, Inc. v. Summers,Potts, Kampinski Brucato (Oct. 30, 1986), Cuyahoga App. No. 50841, unreported; Moorer v. Euclid, Inc. (Sept. 18, 1986), Cuyahoga App. No. 51140, unreported; Gissentaner v. Davis (Dec. 30, 1982), Cuyahoga App. No. 44644, unreported; Graham v. Spera (Feb. 9, 1978), Cuyahoga App. No. 36864, unreported.

Therefore, I would modify the judgment as a dismissal without prejudice, as this court did in Willis and Moorer.