ROGER W. CARTER v. UNIVERSITY PARK DEVELOPMENT CORPORATOIN, et al.
C.A. No. 28356
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Dated: July 12, 2017
2017-Ohio-5795
SCHAFER, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2015-11-5429
SCHAFER, Judge.
{¶1} Plaintiff-Appellant, Roger W. Carter, appeals the judgment of the Summit County Court of Common Pleas dismissing his claims with prejudice against the following Defendants-Appellees: Ann Lane Gates, Andrea Mathewson, Thomas J. Strauss, Donald L. Plusquellic, Russell M. Pry, Ethel Chambers, Patrice S. Lange, David James, William H. Considine, Jennifer Thomas, and Daniel C. Colantone (collectively, “the 11 individual defendants“). For the reasons set forth below, we affirm.
I.
{¶2} On November 25, 2015, Carter refiled1 his complaint against 18 defendants in the Summit County Court of Common Pleas. The named defendants included the following two
{¶3} The individual defendants all moved to dismiss Carter‘s complaint pursuant to
{¶4} On March 7, 2016, Carter filed a voluntary dismissal of Defendant Prоenza from this lawsuit. Thereafter, on March 31, 2016, Carter filed a motion for leave to amend his refiled complaint in order to “eliminate several individual party defendants (Ethel Chambers, Daniel C. Colantone, William H. Considine, Ann Lane Gates, David James, Patrice S. Lange, Andrea
{¶5} Contrary to the trial court‘s order, on June 6, 2016, Carter filed a motion to dismiss the 11 individual defendants without prejudice pursuant to
{¶6} On July 5, 2016, Carter filed a motion to dismiss the 11 individual defendants from the lawsuit without prejudice pursuant to
{¶7} On July 26, 2016, Carter filed a motion asking the trial court to reconsider its denial of his motion to dismiss pursuant to
{¶8} Carter filed this timely appeal and presents two assignments of error for our review. The trial court has stayed all proceedings involving the remaining defendants (UPA, University Park Village, LLC, Johnson, Treier, Falatok, and O‘Leary) pending this appeal.
II.
Assignment of Error I
The trial cоurt erred by denying Roger Carter leave to file an Amended Complaint and again erred when it denied Appellant Carter‘s Renewed Motion for Leave to File an Amended Complaint after the trial court explicitly directed Carter that he could file such a pleading.
{¶9} In his first assignment of error, Carter argues that the trial court erred by denying his motion for leave to file an amended complaint as well as his renewed motion for leave to file an amended complaint. We disagree.
{¶10} This Court reviews the denial of a motion for leave to amend a pleading for an abuse of discretion. Jacobson-Kirsch v. Kaforey, 9th Dist. Summit No. 26708, 2013-Ohio-5114, ¶ 12, citing Wilmington Steel Products, Inc. v. Cleveland Elec. Illuminating Co., 60 Ohio St.3d 120, 122 (1991). An abuse of discretion denotes that the trial court‘s determination was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, a reviewing court may not simply substitute its own judgment fоr that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶11}
A party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading or twenty-eight days after service of a motion under
Civ.R. 12(B) , (E), or (F), whichever is earlier. In all other cases, a party may amend its pleading only with the opposing party‘s written consent or the court‘s leave. The court shall freely give leave when justice so requires.
{¶12} Thus, “after the time has passed in which a responsive pleading may be served, a party may amend its pleading only by leave of court or written consent of the adverse party.” Morrissette v. DFS Servs., L.L.C., 10th Dist. Franklin No. 10AP-633, 2011-Ohio-2369, ¶ 30.
{¶13} Upon review of the record, we conсlude that the trial court did not abuse its discretion in denying Carter‘s motion and renewed motion for leave to file an amended complaint. A review of the May 19, 2016 and August 17, 2016 judgment entries indicate that the trial court did make findings of bad faith, undue delay, or undue prejudice when it denied Carter‘s respective motions for leave. Specifically, the trial court noted in its May 19, 2016 entry that the undue prejudice facing the defendants by forcing them to spend significant time and resources updating their motions to dismiss greatly outweighed Carter‘s reasons for seeking to amend his complaint. In making this determination, the trial court placed great weight on the fact that this was a refiled case and that the defendants had pending
{¶14} Lastly, the trial court‘s August 17, 2016 judgmеnt entry highlighted the fact that UPA and the individual defendants’ respective
{¶15} Carter argues that he did essentially comply with the trial court‘s May 19, 2016 order when he filed his renewed motion for leave to file an amended complaint wherein he sought to remove the 11 individual defendants from thе lawsuit. We reject this argument. The amended complaint that Carter attached to his renewed motion for leave was identical to the amended complaint that Carter initially sought leave to file on March 31, 2016. Specifically, in addition to removing the 11 individual defendants from the case, the amended complaint also added causes of action against the remaining defendants, which the trial court explicitly
{¶16} Based on the foregoing, we cannot conclude that the trial court abused its discretion in denying Carter‘s motion and renewed motion for leave to file an amended complaint under
{¶17} Carter‘s first assignment of error is overruled.
Assignment of Error II
Appellant Roger Carter was deprived of his day in court, as guaranteed under Article I, Section 16 of the Ohio Constitution, and to due process of law under thе Fourteenth Amendment to the U.S. Constitution, by a judgment dismissing his claims against individual defendants, with prejudice, for violating orders that impermissibly restricted the actions of his attorneys.
{¶18} In his second assignment of error, Carter contends that the trial court erred by dismissing his claims against the 11 individual defendant with prejudice pursuant to
{¶19}
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. In other words, dismissal is reserved for those cases in which the conduct of a party is so negligent, irresponsible, contumacious, or dilatory as tо provide substantial grounds for a dismissal with prejudice for failure to prosecute or obey a court order. Absent such extreme circumstances, a court should first consider lesser sanctions before dismissing a case with prejudice.
(Internal quotations and citations omitted) Sazima v. Chalko, 86 Ohio St.3d 151, 158 (1999). “Proper factors for consideration in a
{¶20} In this case, there is no dispute that the trial court provided Carter with notice prior to dismissing his claims against the 11 individual defendants with prejudice. Rather, Carter argues that the trial court‘s various orders “directing [him] as to how he was to frame his [dismissal] motions impermissibly limited his options as provided under procedures established by the Ohio Supreme Court pursuant to the Ohio [Rules of Civil Procedure].” Moreover, Carter contends that the triаl court erred by dismissing his claims against the 11 individual defendants with prejudice pursuant to
{¶21} We do not agree with Carter‘s assertion that the trial court‘s May 19, 2016 order and subsequent enforcement orders impermissibly limited his options as provided under the Ohio Rules of Civil Procedure. This is because the trial court‘s May 19, 2016 order was directly responsive to Carter‘s own stated objective, which was to dismiss the 11 individual defendants from the lawsuit. In denying Carter leave to amend his complaint, the trial court prohibited Carter from restructuring his refiled complaint against the remaining defendants due to the undue prejudice that would befall them from such action. However, the trial court did provide Carter with the following options: he could remove the 11 individual defendants by way of either a
{¶22} However, as noted above, the trial court properly exercised its discretion in denying Carter‘s renewed
{¶23} Lastly, based on the record before us, we cannot conclude that the trial court erred by denying Carter‘s motion to dismiss pursuant to
‘It is the prejudice to the defendant, rather than the convenience of the court, that is to be considered in deciding a motion for dismissal under Rule [41(A)(2)]. If the motion is made at an early stage of the case, before much has happened and only limited resources have been invested, it is more likely to be granted. Dismissal still may be allowed at later stages, although аn especially strong showing is required to warrant voluntary dismissal without prejudice after the plaintiff has concluded its evidence, the defendant has moved for judgment as a matter of law, or the court has granted judgment for the defendant as a matter of law.‘”
Morris v. Reed, 9th Dist. Wayne No. CIV. A. 96CA0090, 1997 WL 379663, *2 (June 25, 1997), citing 9 C. Wright & A. Miller, Federal Practice and Procedure, § 2364, 290-292 (3d Ed.1995).
{¶24} Here, the trial court summarily denied Carter‘s
{¶25} Accordingly, we conclude that the trial court did not err in denying Carter‘s
{¶26} Carter‘s second assignment of error is overruled.
III.
{¶27} With both of Carter‘s assignments of error having been overruled, the judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
TEODOSIO, J.
CONCURS.
HENSAL, P. J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
BRADLEY S. LE BOEUF, Attorney at Law, for Appellant.
SIDNEY N. FREEMAN, Attorney at Law, for Appellant.
OWEN J. RARRIC and KAREN SOEHNLEN MCQUEEN, Attorneys at Law, for Appellees.