Alam v. GalloglyAlam v. Gallogly
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-659361
RELEASED AND JOURNALIZED: November 24, 2010
Kenneth D. Myers
6100 Oak Tree Boulevard
Suite 200
Independence, Ohio 44131
ATTORNEY FOR APPELLEE
Jean A. Showalter
Law Office of Michael F. Farrell
55 Public Square
Suite 775
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶ 1} Plaintiff-appellant, Saamia Alam, appeals from a judgment dismissing hеr personal injury case against defendant-appellee, Nicholas Gallogly, for failure to prosecute. Finding no merit to her appeal, we affirm.
Procedural History and Factual Background
{¶ 2} Alаm and Gallogly were involved in a motor vehicle accident on January 8, 2005. Alam originally filed suit against Gallogly on January 8, 2007, but voluntarily dismissed it on May 18, 2007, pursuant to
{¶ 3} On May 13, 2008, she refiled her case against Gallogly. After the trial court held a case management conference on September 4, 2008, it ordered that Alam submit her expert medical report by January 2, 2009, and
{¶ 4} On March 31, 2009, Gallogly moved the court tо preclude Alam from presenting any medical evidence at trial because she never submitted her expert report.
{¶ 5} On April 2, 2009, Alam‘s counsel moved to withdraw frоm the case. The court held a hearing on the motion on April 29, 2009, after which it granted the motion. The trial court then granted Alam‘s oral motion to continue the trial date, but only to August 27, 2009. The court further cautioned Alam and any counsel that “she may retain” that it would not continue the trial date again.
{¶ 6} The trial court held a final pretrial on August 25, 2009, where it made clear that the trial would still take place on August 27, 2009. On August 26, Alam moved the court for “one last continuance.” She informed the judge that she needed more time because she had a death in her family and had some medical issues. She also told the judge that she had talked to three doctors who had all agrеed to provide expert medical testimony, but that they needed more time “to go through medical records.” She requested 90 more days to gather her medicаl evidence.
{¶ 7} On August 27, 2009, the trial court denied Alam‘s motion for continuance and dismissed her case pursuant to
{¶ 8} “The trial court erred by overruling appellant‘s motion for continuance and by dismissing the case with prejudice for failure tо prosecute.”
Failure to Prosecute
{¶ 9}
{¶ 10} The decision to dismiss an action pursuant to
{¶ 11} On the day of the scheduled trial, Alam informed the trial court that shе was not ready for trial. She again informed the court that she needed more time “for the doctors to go through all the medical records to make a detailed medical report.” She told the court that she had brought a letter with her from a new doctor that she had seen in late June 2009 that said, “it is
{¶ 12} The trial court stated:
{¶ 13} “This lawsuit was filed on May 13, 2008, which was almost a year and a half ago. On April 29, we had a hearing where your lawyer withdrew, for the reason that you were not — this is as I recall, the reason, you were not assisting him in procuring medical reports. *** You cannot show up on the day of trial with some medical information that the other side has never seen and hope to get it into evidence at trial.”
{¶ 14} The trial court then asked Alam what she had done between the end of April, when her counsel withdrew, and the day of trial to prepare. Alam informed the court that she had recently been diagnosed with “bipolar two disorder.” She further stated that she had talked to a lawyer who she thought was going to help her, but then he developed medical problems. Shе further informed the court that she had talked to several other doctors, but that she needed more time to gather information.
{¶ 15} The trial court then said, “[a]s of April 29, yоu were on notice that the trial date will not be continued again. And I haven‘t heard, this morning, evidence that some meaningful attempt has been made to marshal your evidence and prepare for trial.
{¶ 17} “I have to bе fair to the defendant. He was in a car accident four-and-a-half years ago. And he hasn‘t been able to put this behind him, one way or another.”
{¶ 18} The trial court rеcessed the hearing to give Alam an opportunity to settle the case with Gallogly. But the two parties could not agree to settlement terms.
{¶ 19} The trial court then denied Alam‘s motion to continue, but permitted her to call the new doctor as a witness, even though she had not submitted an expert report or told Gallogly‘s counsel about this new doctor. But Alam said that she had not asked the doctor to come to court that day. The trial court then asked her if she was prepared tо go to trial without the doctor. Rather than answer the question, the court permitted Alam to read a letter from a different doctor, explaining why Alam was not prеpared to go to trial. This doctor explained that Alam had mental health issues that were preventing her from adequately preparing her case. The trial court judge asked her if that was due to her 2005 car accident, and she replied no. The trial court then dismissed the case for lack of prosecution.
{¶ 20} Alam mаintains that the trial court failed to give her proper notice that it would dismiss the action and that it abused its discretion in dismissing the
{¶ 21} In Wallace, this court reversed a trial court‘s dismissal of a case for lаck of prosecution. Id. at ¶6. We explained that:
{¶ 22} “A
{¶ 23} “Lesser sanctions than dismissal with prejudice available to a court when a party fails to appear at a hearing include: (1) a reprimand by the court; (2) a finding of contempt; (3) an order prohibiting the party or attorney from appearing in that сourt without different counsel in the future; and (4) a dismissal without prejudice. Willis v. RCA Corp. (1983), 12 Ohio App.3d 1, 465 N.E.2d 924, paragraph two of the syllabus.” Wallace at ¶4-5.
{¶ 24} We find the facts in Wallace are distinguishable from the present case. The plaintiff in Wallace had filed her case for the first time against Euclid Meridia Hospital in February 2002. The trial court dismissed it in Octobеr of that same year. We reversed the dismissal because there was nothing in the
{¶ 25} But under the fаcts of the present case, we conclude that the trial court did not abuse its discretion in dismissing it for lack of prosecution. The trial court stated that Alam‘s first trial сounsel had withdrawn from the case because Alam did not cooperate with him in procuring medical records. The trial court had already continued the triаl date one time to give Alam more time to obtain new counsel and submit her expert medical report — for an injury that was allegedly caused by an accident occurring over four years prior. The trial court further gave Alam notice that it would not continue the trial a second time. And although Alam was not “intentionally dilatory” in maintaining her claim, the record indicates that she was irresponsible in doing so. See Wallace, supra. Thus, under these facts, we cannot say the trial court abused its discretion.
{¶ 26} Alam‘s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and COLLEEN CONWAY COONEY, J., CONCUR