THOMAS COMBS v. REO ALLEGIANCE, INC.
Case No. CT2011-0005
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
August 31, 2011
2011-Ohio-4437
Hon. W. Scott Gwin, P.J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil appeal from the Muskingum County Court of Common Pleas, Case No. CH2009-0843; JUDGMENT: Affirmed
For Plaintiff-Appellant
MILES D. FRIES
Gottlieb, Johnston, Beam and Dal Ponte
320 Main Street, Box 190
Zanesville, OH 43702-0190
For Defendant-Appellee
ELIZABETH M. NORTON
BONNIE L. WOLFE
10 W. Broad St., Ste. 2300
Columbus, OH 43215
DOUGLAS R. DENNIS
FROST BROWN TODD LLC
2200 PNC Center
201 East Fifth Street
Cincinnati, OH 45202
{¶1} Plaintiff-appellant Thomas Combs appeals a judgment of the Court of Common Pleas, Muskingum County, Ohio, which dismissed his complaint against defendant-appellee REO Allegiance, Inc. with prejudice. Appellant raises a single proposition of law:
{¶2} “I. A TRIAL COURT ABUSES ITS DISCRETION WHEN IT DISMISSES A COMPLAINT, WITH PREJUDICE, FOR NON-COMPLIANCE WITH A DISCOVERY ORDER AFTER THE ORDER HAS BEEN COMPLIED WITH.”
{¶3} It appears from the record a bank foreclosing on appellant‘s property hired appellee to remove appellant‘s personal property from the structure. Appellant alleged appellee‘s employees could not complete the job in one day. Appellee‘s employees informed appellant they would return the following day and either set appellant‘s remaining property in front of the house or move it to a storage unit and advise appellant of its whereabouts. Appellant alleged appellee‘s employees removed his remaining property but appellee has failed to return the property or inform appellant where it stored the property. Appellant‘s complaint sounded in conversion and unjust enrichment, and in the alternative, asserts that if his property cannot be located, then appellee was negligent.
{¶5} On June 17, appellee filed its motion to dismiss the complaint, citing
{¶6}
{¶7} “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.”
{¶8} Our standard of reviewing a trial court‘s decision to dismiss a complaint for failure to comply with a court order is the abuse of discretion standard. Jones v. Hartranft (1997), 78 Ohio St. 3d 368, 371, 678 N.E. 2d 530. Thus, our review of the dismissal is limited to determining whether the trial court abused its discretion. Id. Abuse of discretion implies a court‘s attitude is unreasonable, arbitrary, or
{¶9} In Quonset Hut v. Ford Motor Company (1997), 80 Ohio St. 3d 46, 684 N.E. 2d 319, the Ohio Supreme Court held: “For purposes of
{¶10} Subsequently, the Ohio Supreme Court reviewed the case of Sazima v. Chalko, 86 Ohio St. 3d 151, 1999-Ohio-92, 712 N.E. 2d 729. In Sazima, a plaintiff filed a complaint for legal malpractice, and the defendant moved for a more definite statement pursuant to
{¶11} On March 5, 1997, the trial court directed plaintiff to file a more definite statement by March 14. On April 25, 1997, defendant filed a motion to dismiss the complaint for failing to comply with the court‘s order, and also filed a motion to compel discovery. On May 9, 1997, the court sustained the motion to compel discovery and
{¶12} The Supreme Court held that for purposes of
{¶13} However, the Supreme Court noted it appeared from the record the court‘s order compelling discovery was not mailed until May 19, and was not received by the plaintiff‘s counsel before May 20, 1997. The defendant did not cite the Rule or move for dismissal in his motion. On May 27, 1997, plaintiff responded to the defendant‘s discovery requests and also filed a more definite statement. Nevertheless, on May 30, 1997, the court journalized an order dated May 28, 1997, finding plaintiff had neither complied with the order nor offered an explanation for her failure to timely comply.
{¶14} The Supreme Court found the trial court abused its discretion in dismissing the matter for failure to comply, because the plaintiff had complied, apparently within a few days of receiving the actual notice of the order.
{¶15} We find in Sazima, the plaintiff had an explanation for her untimely responses to discovery and the order for a more definite statement, and filed her answers within a few days of actually receiving the order. In the case at bar, appellant was directed to respond by June 9, but he did not submit his responses until November 5th. The responses submitted appear incomplete. Appellant had no documentation other than his handwritten lists, gave incomplete and vague information about potential
{¶16} We find the case at bar is distinguishable from Sazima, supra.
{¶17} We find the trial court did not abuse its discretion in dismissing the matter with prejudice. Appellant‘s contention the trial court abused its discretion is overruled.
{¶18} For the foregoing reasons, the judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur
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HON. W. SCOTT GWIN
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HON. JOHN W. WISE
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HON. PATRICIA A. DELANEY
WSG:clw 0811
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
THOMAS COMBS v. REO ALLEGIANCE, INC.
CASE NO. CT2011-0005
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.
Costs to appellant.
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HON. W. SCOTT GWIN
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HON. JOHN W. WISE
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HON. PATRICIA A. DELANEY