Stephens v. Baker

Annotate this Case

Download PDF

[Cite as Stephens v. Baker, 2003-Ohio-1689.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY William Stephens, : : : : Case No. 02CA2849 : : DECISION AND JUDGMENT ENTRY : : RELEASED: 3-25-03 : Plaintiff-Appellant, vs. Peggy Baker, Defendant-Appellee. APPEARANCES Joseph L. Hale, Portsmouth, Ohio, for appellant. Edward G. Hubbard, Columbus, Ohio, for appellee. Kline, J.: {¶1} William Court s Stephens dismissal of appeals his the complaint, Portsmouth with prejudice, failure to prosecute pursuant to Civ.R. 41(B). contends that the dismissal constitutes Municipal an for Stephens abuse of discretion because there were less severe actions the trial court could have taken. Under the circumstances in this case, because Stephens had an objectively reasonable amount of time to prepare for trial, we find that the trial court did not err in dismissing his complaint with prejudice. Accordingly, we affirm the judgment of the trial court. Scioto App. No. 02CA2849 2 I. {¶2} Stephens and Baker were involved in an automobile accident in 1997. Stephens obtained treatment from a chiropractor, Dr. Ronald Hoover of Portsmouth Chiropractic, for his injuries. Stephens filed suit against Baker on September 21, 1998. He then dismissed the case on July 21, 1999. On January 27, 2000, Stephens re-filed his complaint against Baker. {¶3} The court set the case for trial on four dates that are relevant to this appeal: June 27, 2001, March 19, 2002, April 18, 2002, and July 23, 2002. {¶4} On June 26, 2001, the day before the first scheduled trial date, Stephens filed a motion to continue due to the fact that his expert, Dr. Hoover, was unable to testify. Specifically, Stephens explained that Dr. Hoover was no longer affiliated with Portsmouth Chiropractic and had no access to Stephens s client file. Stephens did not offer the court any explanation as to why he waited until the day before trial to discover or share this information. {¶5} On scheduled March trial 18, 2002, date, the Stephens day before requested a the second continuance. Stephens based his request upon his counsel s illness. The trial court granted its entry that the the court continuance, would not but stated entertain any in further Scioto App. No. 02CA2849 3 motions for continuance from Stephens. The court stated that it would dismiss the case if it did not proceed to trial on April 18, 2002. On April 12, 2002, Baker requested a continuance due {¶6} to the fact that one of her witnesses, Officer Timberlake of the Portsmouth Police Department, would be in Florida on vacation on April 18, 2002. The trial court granted Baker s motion for a continuance and rescheduled the trial for July 23, 2002. On {¶7} scheduled July trial 22, 2002, date, the day Stephens prior filed a to the motion fourth for a continuance based upon his inability to produce Dr. Hoover to testify on the following day. In the motion, Stephens stated that he would be unable to prove his injuries and damages without the testimony of Dr. Hoover. Before the trial court ruled on Stephen s request {¶8} for a failure continuance, to Baker prosecute. filed The a motion to dismiss trial court granted for Baker s motion, and dismissed the case with prejudice pursuant to Civ.R. 41(B). Stephens appeals, asserting the following assignment of error: The trial court committed reversible error and abused its discretion by entering a dismissal pursuant to Civil Rule 41(B) on defendant-appellee s motion to dismiss for failure to prosecute, and implicit therein, Scioto App. No. 02CA2849 4 overruling the plaintiff-appellant s motion to continue the jury trial. II. Civ.R. {¶9} 41(B)(1) provides that, upon motion of a defendant or upon its own motion, the court may dismiss an action when action. the plaintiff has failed to prosecute an The decision to dismiss a complaint for failure to prosecute under Civ.R. 41(B)(1) is a matter within the trial court s discretion, and we will not reverse absent an abuse of St.3d 368, implies that discretion. 371, an Jones 1997-Ohio-203. unreasonable, v. An arbitrary attitude on the part of the court. Leis (1982), 1 Ohio St.3d 89, 91. Hartranft, abuse or of 78 Ohio discretion unconscionable Id., citing Pembaur v. A trial court does not abuse its discretion in dismissing a claim with prejudice under Civ.R. 41(B)(1) when a plaintiff, who has had an objectively reasonable amount of time for discovery, fails to proceed upon a scheduled trial date for want of evidence of defendant s liability. In {¶10} Jones, the Jones at syllabus. trial court dismissed the complaint, noting that the original action was pending for over a year before the plaintiff dismissed it, that plaintiff had ample time to secure expert testimony prior to the trial date in the second action, and that the Scioto App. No. 02CA2849 5 plaintiff waited until the day prior to trial to request a continuance. continuance The dismissal, but the Supreme the to needed trial Court of arrange a The reversed unable he testimony of his necessary expert witnesses at trial. appeals was that the of he stated for court because plaintiff court s Ohio order reversed appellate court and reinstated the dismissal. of the The Court found that the trial court did not abuse its discretion in dismissing when the plaintiff was unable to present the expert testimony necessary to prove his case. As {¶11} pending for prejudice. in over Jones, a Stephens s year before original he complaint dismissed it was without From the filing of his second complaint to the last scheduled trial date, Stephens had over two years to secure the testimony of an expert witness to prove that he sustained injuries in the automobile accident. Like the plaintiff in Jones, Stephens waited until the day before the trial to seek a continuance. Additionally, Stephens waited until the day prior to trial to seek continuances on two previous occasions. {¶12} Stephens s justification for seeking a continuance on two of three instances was his inability to produce necessary expert testimony. an adequate explanation for his Stephens did not offer delay in seeking a Scioto App. No. 02CA2849 continuance until the 6 eve of trial in either instance. Moreover, when the trial court granted Stephens s second continuance, it gave him notice that it would not grant a third. Stephens s repeated last-minute delays caused inconveniences and preparation costs to the court and to Baker. Upon {¶13} Stephens s review, complaint particularly after we cannot constituted the trial say that an abuse court had dismissing of discretion, given Stephens notice of its intent to dismiss in the event of a third request for a continuance. Accordingly, we overrule Stephens s sole assignment of error and affirm the judgment of the trial court. JUDGMENT AFFIRMED. Scioto App. No. 02CA2849 7 JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that Appellee recover of Appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Portsmouth Municipal Court to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions. Abele, J. and Harsha, J.: Concur in Judgment and Opinion. For the Court BY: Roger L. Kline, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.