Opinion
Nos. 99AP-810, 99AP-840 99AP-1153.
Rendered on August 1, 2000.
APPEALS from the Franklin County Court of Common Pleas.
Allen Schulman Assoc. Co., LPA, Allen Schulman, Jr., and Christopher J. Van Blargan, for appellant.
Reminger Reminger, LLP, and Warren M. Enders, for appellees Richard C. Brandes, M.D., and Deborah Venesy, M.D.
Reminger Reminger, LLP, and Brant E. Poling, for appellee Thomas H. Lee, M.D.
Lane, Alton Horst, Jeffrey M. Poth and Jeffrey W. Hutson, for appellee Michael A. McShane, M.D.
Porter, Wright, Morris Arthur, LLP, and Joyce D. Edelman, for appellee PruCare HMO.
OPINION
On October 16, 1995, Patrick J. Marion filed a medical malpractice action in the Franklin County Court of Common Pleas against Richard C. Brandes, M.D., Michael A. McShane, M.D., Deborah A. Venesy, M.D., Thomas H. Lee, M.D., and PruCare HMO ("PruCare"). Mr. Marion averred that he received inadequate medical care from the defendants in the treatment of his torn Achilles tendon. Several months following the filing of the complaint, Mr. Marion voluntarily dismissed the action.
Mr. Marion, represented by new counsel, re-filed a substantially similar complaint on April 11, 1997. Between June and September 1997, Drs. Brandes, Venesy and Lee moved for summary judgment. In September 1997, PruCare moved for judgment on the pleadings. In October 1997, Mr. Marion filed a memorandum contra the motions for summary judgment. Mr. Marion's memorandum was supported by the affidavit of an alleged expert witness, Michael Stanton-Hicks, M.D. On December 15, 1997, the action was stayed due to the insolvency of Dr. McShane's insurance carrier. During the stay, the trial court denied the motions for summary judgment. The stay was lifted on November 24, 1998, and the case was reactivated. Thereafter, the trial court set an amended case schedule order by agreement of all counsel. Of importance to this appeal are the following dates:
Plaintiff's Disclosure of Expert Witnesses January 4, 1999.
Discovery Cut-Off June 1, 1999
Trial Date June 28, 1999
In December 1998, the trial court denied PruCare's motion for judgment on the pleadings. In January 1999, PruCare moved for summary judgment. This motion was denied in April 1999.
In the meantime, counsel for Mr. Marion informed all defense counsel on January 4, 1999 that he intended to call Dr. Stanton-Hicks as an expert witness at trial. By letter dated January 5, 1999, counsel for Drs. Brandes and Venesy requested Mr. Marion's counsel provide dates on which Dr. Stanton-Hicks would be available for deposition. Mr. Marion's counsel did not respond. On January 27, 1999, counsel for Drs. Brandes and Venesy again requested deposition dates from Mr. Marion's counsel. By letter dated February 3, 1999, counsel for Dr. McShane also requested that Mr. Marion's counsel provide deposition dates for Dr. Stanton-Hicks.
No deposition dates were provided and on February 12, 1999, Drs. Brandes and Venesy moved the court pursuant to Civ.R. 37(A) for an order directing Mr. Marion's counsel to provide several alternative dates on which Dr. Stanton-Hicks would be available for deposition. Mr. Marion did not oppose the motion. On April 29, 1999, the trial court issued an order directing Mr. Marion to provide three alternative dates for deposing Dr. Stanton-Hicks. The trial court further ordered that the deposition was to be completed on or before May 21, 1999, unless all the defendants stipulated otherwise. In addition, the trial court cautioned Mr. Marion that failure to comply with the order would result in exclusion of the witness.
On May 7, 1999, Mr. Marion filed a "Stipulated Motion for Continuance," requesting that the court continue the trial scheduled for June 28, 1999 on the grounds his expert was out of the country and would be unavailable for deposition until June 12, 1999. The motion was signed by counsel for all defendants "per telephone approval." The trial court scheduled a hearing for May 26, 1999. At such hearing, the trial court denied the motion.
In an affidavit filed June 29, 1999, Warren M. Enders, counsel for Drs. Brandes and Venesy, attested that he did not "stipulate" to a continuance of the trial scheduled for June 28, 1999 and did not file written opposition to Mr. Marion's motion because he had never received a copy of the motion.
The record does not contain a transcript of the May 26, 1999 hearing. The only evidence of that proceeding exists in the form of Mr. Enders's June 29, 1999 affidavit in which he attested that the trial court denied Mr. Marion's motion based upon the "tortured history" of the case and the fact that the action was originally filed in 1995. Furthermore, no written disposition of cthe motion appears in the record. We must assume, therefore, that the trial court denied the motion, as when a trial court fails to rule upon a pretrial motion, it is presumed the trial court denied the motion. State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469.
In late May and early June 1999, all defendants filed motions to exclude the trial testimony of Dr. Stanton-Hicks, as he had not been made available for deposition. On June 1, 1999, discovery closed pursuant to the amended case scheduling order. Thereafter, Mr. Marion attempted to identify new expert witnesses. All defendants filed motions in limine to exclude these newly identified witnesses.
On June 4, 1999, the trial court held a pretrial conference with regard to defendants' pending motions. The trial court ruled on such motions by entry dated June 7, 1999. As to the motion to exclude Dr. Stanton-Hicks, the trial court instructed Mr. Marion's counsel to submit an affidavit setting forth his efforts to schedule Dr. Stanton-Hicks for deposition by defense counsel. The trial court further ordered that Mr. Marion's counsel obtain Dr. Stanton-Hicks's affidavit indicating which dates he had been unavailable for deposition. In addition, the trial court stated, "[p]laintiff is also permitted to provide defense counsel with at least two alternative days, between now and the scheduled trial date of June 28, 1999, for the discovery deposition of Dr. Stanton-Hicks." (Emphasis sic.) The trial court further indicated that if the deposition of Dr. Stanton-Hicks was completed, defendants would be given the opportunity to confer with their own expert witnesses and clients to see whether a continuance of the June 28, 1999 trial date was necessary. Thereafter, defense counsel could apply to the trial court for such a continuance. Lastly, the trial court precluded the testimony of Mr. Marion's newly identified witnesses.
On June 8, 1999, Mr. Marion's counsel notified counsel for defendants that Dr. Stanton-Hicks would be available for deposition by telephone on the evening of June 25, 1999, three days before the scheduled trial date. On June 9, 1999, all defendants responded by jointly renewing the motion in limine to exclude Dr. Stanton-Hicks as an expert witness.
In compliance with the court's June 7, 1999 order, Mr. Marion filed the affidavit of Dr. Stanton-Hicks on June 14, 1999. In the affidavit, Dr. Stanton-Hicks stated that he intended to testify as an expert, he was out of the country from May 20, 1999 to June 5, 1999, he was unavailable for deposition after his return to the United States on June 5, 1999 due to previously scheduled appointments, Mr. Marion's counsel had made numerous inquiries regarding possible deposition dates but he was unable to make firm plans due to his schedule, and he was available for deposition only on June 25, 1999 at 6:00 p.m. Mr. Marion also filed the affidavit of his counsel's legal assistant, Stacie L. Hoppel, wherein she stated that in May and June 1999, she attempted to contact Dr. Stanton-Hicks several times at his office regarding possible deposition dates; however, he was unable to make firm plans due to his schedule.
On June 18, 1999, Mr. Marion's counsel filed his own affidavit in compliance with the court's June 7, 1999 order. In his affidavit, counsel stated that he had received defense counsel's request to depose Dr. Stanton-Hicks in January 1999; he had made "several attempts, the exact number of times being unknown," to contact Dr. Stanton-Hicks between January and April 1999; he had been unable to reach Dr. Stanton-Hicks but left several messages with his secretary regarding the scheduling of depositions; he did not oppose defendants' motion to compel Dr. Stanton-Hicks's testimony because he was attempting at the time to schedule the deposition; in mid to late April he spoke to Dr. Stanton-Hicks, who stated he was preparing to leave the country and could not be deposed until June 1999; at the end of April 1999, he requested his legal assistant to continue calling Dr. Stanton-Hicks's office at least twice per week to determine when Dr. Stanton-Hicks was available; he checked with his legal assistant periodically but was informed Dr. Stanton-Hicks could not provide a specific date due to the doctor's schedule; and he was informed by Dr. Stanton-Hicks during the first week of June 1999 that the only time he was available for deposition was June 25, 1999 at 6:00 p.m. and only by telephone.
On June 18, 1999, the trial court held another pretrial conference. The trial court ruled from the bench that Dr. Stanton-Hicks would not be permitted to testify. The trial court further declared that the case would proceed to trial on June 28, 1999. Before the trial court memorialized its bench rulings in a judgment entry, Mr. Marion filed a notice of interlocutory appeal and a motion to stay the proceedings pending resolution of the interlocutory appeal. The defendants opposed Mr. Marion's motion on grounds that no final appealable order existed from which to appeal since no judgment entry had been filed.
The case proceeded to trial on June 28, 1999. Counsel for all defendants were present. Neither Mr. Marion nor his counsel appeared at trial. The trial court orally denied Mr. Marion's June 24, 1999 motion to stay the proceedings and dismissed the case for failure to prosecute.
At 12:50 p.m. on July 2, 1999, the trial court filed a judgment entry dismissing Mr. Marion's action with prejudice pursuant to Civ.R. 41(B)(1). At 4:15 p.m. on July 2, 1999, the trial court filed a judgment entry memorializing its June 18, 1999 oral ruling granting the defendants' motion in limine excluding Dr. Stanton-Hicks as an expert witness.
On July 6, 1999, Mr. Marion filed a motion requesting the trial court enter judgment against him based upon grounds other than that identified in the trial court's July 2, 1999 judgment entry, i.e., his failure to prosecute. Mr. Marion sought dismissal of the action on two alternative grounds, (1) pursuant to Civ.R.37(B)(2)(c) and Civ.R. 41(B)(1) as a sanction for failure to comply with the trial court's June 7, 1999 discovery order, or (2) pursuant to Civ.R. 56, on the grounds Mr. Marion failed to successfully oppose the defendants' motions for summary judgment.
On July 14, 1999, Mr. Marion filed the notice of interlocutory appeal with this court. On July 19, 1999, Mr. Marion filed a notice of appeal from the trial court's July 2, 1999 judgment entry dismissing the case pursuant to Civ.R. 41(B)(1) for failure to prosecute. On July 22, 1999, the trial court sua sponte consolidated Mr. Marion's interlocutory appeal with his appeal from the dismissal for failure to prosecute.
On September 14, 1999, upon defendants' joint motion filed September 13, 1999, the trial court entered a nunc pro tunc order correcting the record to reflect that the judgment entry excluding Mr. Marion's expert witness was meant to have been filed before the judgment entry dismissing the case. To that end, the trial court ordered the clerk of courts to amend the filing time of the judgment entry excluding Mr. Marion's expert witness to July 2, 1999 at 12:00 p.m. The trial court further noted (in a handwritten notation initialed by the trial judge) that the motion was unopposed and agreed upon by all parties.
On September 15, 1999, Mr. Marion filed a motion requesting the trial court issue a nunc pro tunc order reflecting that the judgment entry excluding his expert witness was meant to have been filed on June 18, 1999 and that the case was dismissed due to his failure to present a prima facie case of medical malpractice, rather than his failure to prosecute. On September 20, 1999, Mr. Marion moved the trial court to vacate its nunc pro tunc order entered September 14, 1999 and to reconsider the order in accordance with his September 15, 1999 motion for judgment nunc pro tunc. The defendants filed a joint memorandum contra. On September 23, 1999, this court granted the defendants' joint motion to supplement the record with the trial court's September 14, 1999 nunc pro tunc order. On October 8, 1999, Mr. Marion appealed the trial court's September 14, 1999 nunc pro tunc order. On October 22, 1999, this court granted Mr. Marion's motion to consolidate all appeals in the instant action.
On appeal from the trial court's July 2, 1999 judgment entry (case Nos. 99AP-810 and 99AP-840), Mr. Marion (hereinafter "appellant') sets forth the following assignments of error:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN REFUSING PLAINTIFF'S MOTION FOR CONTINUANCE DUE TO HIS EXPERT'S UNAVAILABILITY FOR DEPOSITION.SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN EXCLUDING PLAINTIFF'S SOLE EXPERT WITNESS AND PROHIBITING HIM FROM CALLING ANY OTHER EXPERTS.THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN REQUIRING PLAINTIFF TO PROCEED TO TRIAL AND IN DISMISSING THE CASE FOR FAILURE TO PROSECUTE AFTER EXCLUDING PLAINTIFF'S SOLE EXPERT WITNESS.FOURTH ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DISMISSING THE ACTION FOR FAILURE TO PROSECUTE.
As to his appeal in case No. 99AP-1153, appellant sets forth the following errors for our consideration:
To avoid confusion due to appellant's four assignments of error filed in case Nos. 99AP-810 and 99AP-840, the following assignments of error will be referred to as assignments of error five and six, respectively.
[FIFTH]ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR NUNC PRO TUNC ORDER WITHOUT GIVING PLAINTIFF TIME TO RESPOND AS REQUIRED BY FRANKLIN LOC.R. 21.01.
[SIXTH]ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION BY ENTERING A NUNC PRO TUNC ORDER INDICATING THE COURT'S INTENT TO EXCLUDE PLAINTIFF'S EXPERT WITNESS SHORTLY BEFORE THE ORDER DISMISSING THE CASE FOR WANT OF PROSECUTION RATHER THAN FROM THE TIME THE COURT EXCLUDED PLAINTIFF'S EXPERT TESTIMONY FROM THE BENCH.
We address appellant's second assignment of error first. Appellant contends the trial court erred in excluding Dr. Stanton-Hicks from testifying at trial as a sanction for appellant's failure to comply with the trial court's pretrial discovery orders. In addition, appellant contends the trial court erred in excluding appellant's other experts.
The Ohio Rules of Civil Procedure expressly allow a court to exclude testimony as a sanction for failing to comply with discovery orders. Civ.R. 37(B)(2)(b) states that if any party fails to obey an order to provide or permit discovery, the court may make such orders in regard to the failure as are just, including an order prohibiting the party from introducing designated matters into evidence.
This court is well aware of the standard under which we review the trial court's action herein. A trial court has broad discretion when imposing discovery sanctions, and a reviewing court reviews such rulings only for an abuse of discretion. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, syllabus. In Billman v. Hirth (1996), 115 Ohio App.3d 615, 619, this court indicated that in determining a sanction for a discovery infraction, the trial court should consider the history of the case, all the facts and circumstances surrounding the noncompliance, including the number of opportunities and the length of time within which the faulting party had to comply with the discovery or the order to comply, what efforts, if any, were made to comply, the ability or inability of the faulting party to comply, and such other factors as may be appropriate.
There is no question that appellant should have responded to the January/February 1999 requests of the defendants (hereinafter "appellees") to schedule depositions of Dr. Stanton-Hicks. However, the particular facts in this case, specifically, the trial court's own instructions, lead us to conclude that the trial court abused its discretion in imposing the harsh sanction of excluding appellant's only expert witness.
As indicated above, on June 7, 1999 the trial court addressed appellees' motion to exclude Dr. Stanton-Hicks's as an expert witness. The trial court did not grant such motion. Instead, the trial court instructed appellant to complete certain tasks. Presumably, if appellant complied with such instructions, his expert would not be excluded. Appellant substantially complied with the trial court's instructions. The only instruction appellant arguably did not strictly comply with was the trial court's statement that appellant was "permitted to provide defense counsel with at least two alternative days, between now and the scheduled trial date of June 28, 1999, for the discovery deposition of Dr. Stanton-Hicks." (Emphasis sic.)
Appellant provided only one date for Dr. Stanton-Hicks's deposition — June 25, 1999, three days before the scheduled trial date. However, the purpose of the trial court's "instruction" was to obtain a deposition of Dr. Stanton-Hicks prior to trial. Appellant did so, and the affidavits filed pursuant to the trial court's other instructions sufficiently set forth the previous efforts made to schedule Dr. Stanton-Hicks for depositions and the reasons such efforts failed. While it is true that June 25, 1999 was the last business day prior to trial, the trial court's own instructions permitted such date. Further, the trial court indicated that appellees could thereafter request a continuance.
The trial court could have excluded appellant's expert in its June 7, 1999 judgment entry. Instead, it essentially gave appellant a final chance to comply with certain instructions. Appellant substantially complied with such. However, the trial court nonetheless excluded appellant's only expert on the issue of the standard of care. This being a medical malpractice action, such exclusion effectively precluded appellant from presenting a case. Given appellant's substantial compliance with the trial court's June 7, 1999 entry and the harsh result of exclusion of Dr. Stanton-Hicks, we find the trial court abused its discretion in excluding Dr. Stanton-Hicks.
Accordingly, appellant's second assignment of error is sustained, in part, as to the trial court's erroneous exclusion of Dr. Stanton-Hicks. However, the trial court did not abuse its discretion in excluding the expert witnesses appellant attempted to identify after the discovery cut-off and less than one month prior to the scheduled trial date. To this extent, appellant's second assignment of error is overruled.
Given our disposition of the second assignment of error, the remaining assignments of error are rendered moot. Because the trial court erred in excluding Dr. Stanton-Hicks, everything that occurred after such erroneous ruling, including the start of the trial, the dismissal for failure to prosecute, and all subsequent action in this case must be vacated.
In summary, the second assignment of error (in case Nos. 99AP-810 and 99AP-840) is sustained, in part, as to the trial court's erroneous exclusion of Dr. Stanton-Hicks, and overruled, in part, as to the trial court's exclusion of appellant's newly identified experts. All remaining assignments of error are rendered moot. The judgment of the Franklin County Court of Common Pleas excluding Dr. Stanton-Hicks as an expert witness is reversed. Further, all subsequent rulings and judgments, including the dismissal of the action, are vacated, and this cause is remanded to such court to conduct further appropriate proceedings.
KENNEDY, J., concurs, PETREE, J., dissents.
As I am unable to agree with the majority's disposition of the second assignment of error with regard to the trial court's exclusion of Dr. Stanton-Hicks, I respectfully dissent.
As noted by the majority, it is within the trial court's discretion to determine the particular sanction to be imposed for a discovery infraction. Billman v. Hirth (1996), 115 Ohio App.3d 615, 619, citing Russo v. Goodyear Tire Rubber Co. (1987), 36 Ohio App.3d 175, 178. Quoting Russo, this court noted in Billman:
"* * * The appropriateness of the choice is reviewable to the extent that an abuse may have occurred in the exercise of the trial court's discretion in the selection of the sanction. Thus, the trial court must consider the posture of the case and what efforts, if any, preceded the noncompliance and then balance the severity of the violation against the degree of possible sanctions, selecting that sanction which is most appropriate.
"In deciding, the trial court should look to several factors: the history of the case; all the facts and circumstances surrounding the noncompliance, including the number of opportunities and the length of time within which the faulting party had to comply with the discovery or the order to comply; what efforts, if any, were made to comply; the ability or inability of the faulting party to comply; and such other factors as may be appropriate." [ Id. at 619.]
In the instant case, plaintiff did not acknowledge defendants' requests to set deposition dates in January, while trial was still six months away. The following month, plaintiff neither opposed nor even responded to defendants' motion to compel. In the two-month period during which the motion was pending, it appears that plaintiff made no effort to accommodate defendants' requests. After the trial court granted the motion to compel, directed plaintiff to provide three dates for deposition between April 29 and May 21, 1999, and expressly warned plaintiff that failure to comply with the order would result in exclusion of the witness, plaintiff still took no overt action to comply or excuse noncompliance with the order, other than to inform the court and the parties that Dr. Stanton-Hicks would be unavailable to testify until June 12, 1999. However, plaintiff's assertion regarding Dr. Stanton-Hicks's unavailability for deposition was later contradicted by Dr. Stanton-Hicks's own affidavit.
Despite plaintiff's failure to comply with the court's April 29, 1999 order, the trial court did not immediately exclude Dr. Stanton-Hicks's testimony. Rather, the trial court allowed plaintiff another opportunity to make his expert available for deposition prior to trial. On June 7, 1999, the court directed plaintiff to provide a minimum of two dates prior to trial on which Dr. Stanton-Hicks would be available for deposition. Plaintiff failed to comply with this order, submitting only one date prior to trial on which his expert would be available for telephone deposition. Based upon plaintiff's failure to comply with its second discovery order, the trial court granted defendants' motion to exclude the testimony of Dr. Stanton-Hicks.
Plaintiff contends that any delays in producing Dr. Stanton-Hicks for deposition were not the result of bad faith on plaintiff's part, but resulted from Dr. Stanton-Hicks's lack of cooperation. Initially, we note that there is no requirement that a court find that a party acted in bad faith in the discovery process in order to justify exclusion of an expert witness. In Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, the Ohio Supreme Court upheld the trial court's decision to exclude the testimony of an expert witness, stating:
We recognize that both Jones and Paugh Farmer involved instances of willful noncompliance. However, the existence and effect of prejudice resulting from noncompliance with the disclosure rules is of primary concern, not just the intent or motive involved. Appellees' conduct may well have been produced by neglect, a change in defense strategy or an inadvertent error. Nevertheless, the trial court recognized it as a breach of duty giving rise to unfair surprise and concluded that the resulting prejudice could best be remedied by exclusion of the evidence. [ Id. at 85; footnotes omitted.]
Further, plaintiff's arguments regarding moral culpability miss the mark. Dr. Stanton-Hicks was plaintiff's witness. Whether plaintiff unreasonably delayed the deposition of Dr. Stanton-Hicks or whether Dr. Stanton-Hicks refused to cooperate, the net result was that as of the time the court orally excluded the testimony of plaintiff's expert, defendants were only ten days from trial without ever having had the opportunity to depose him. Where a defendant does not have a reasonable opportunity to depose plaintiff's expert prior to trial, it is appropriate to exclude that expert from testifying. Perkins v. Ohio Dept. of Transp. (1989), 65 Ohio App.3d 487. In Perkins, the plaintiffs advised the defendants that plaintiffs' expert would not be available for a deposition until ten days before trial. The trial court granted defendants' motion in limine "* * * finding that since the plaintiffs' witnesses would not be made available for a deposition until such a short time before trial, the introduction of their testimony would be prejudicial." Id. at 496. On appeal, the appellate court affirmed the trial court's decision, finding no abuse of discretion.
In short, given the history of this case, the facts and circumstances surrounding plaintiff's noncompliance, including the length of time within which plaintiff had to comply and plaintiff's inability to comply with two separate discovery orders, I cannot find that the trial court abused its discretion in excluding the testimony of expert witness Dr. Stanton-Hicks as a sanction for failure to comply with the court's discovery order to produce him for deposition.
Indeed, plaintiff appears to acknowledge as much by moving for dismissal of the case as a sanction for his repeated failure to comply with discovery orders. See plaintiff's brief at page 6, and his July 6, 1999 motion to dismiss (arguing that dismissal was an appropriate discovery sanction pursuant to Civ.R. 37[B][2][c]).
Furthermore, for the reasons that follow, I would overrule plaintiff's remaining assignments of error.
By his first assignment of error, plaintiff contends that the trial court erred in refusing to grant his May 7, 1999 motion for continuance. It is well-settled that a decision to grant or deny a continuance rests within the sound discretion of the trial court. State v. Powell (1990), 49 Ohio St.3d 255, 259.
In determining whether a court has abused its discretion in granting or denying a motion for a continuance, the Supreme Court of Ohio has refrained from adopting a mechanical test. State v. Sowders (1983), 4 Ohio St.3d 143, 144. Rather, the court has held that the trial court's decision depends upon the circumstances of each case "`particularly * * * the reasons presented to the trial judge at the time the request is denied.'" Powell, supra, quoting Ungar v. Sarafite (1964), 376 U.S. 575, 589. To assist the trial court in its endeavor, the Ohio Supreme Court has suggested several factors for consideration:
* * * [T]he length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. * * * [ State v. Unger (1981), 67 Ohio St.2d 65, 67-68.]
It is my view that the trial court properly exercised its discretion in denying plaintiff's requested continuance. With no transcript of the May 26, 1999 hearing available for review, this court must presume the regularity of the trial court proceedings, Ostrander v. Parker-Fallis (1972), 29 Ohio St.2d 72, and presume that the trial court properly applied the Unger factors to the existing facts and circumstances.
Further, as noted previously, plaintiff identified Dr. Stanton-Hicks as his expert witness on January 4, 1999. On January 5 and 27, 1999, defendants requested potential dates on which Dr. Stanton-Hicks could be deposed; however, plaintiff's counsel did not acknowledge these requests. Plaintiff's counsel's attempts to excuse this lapse by citing a family emergency that called him out of the office are unpersuasive, as the record indicates that counsel's personal emergency took him away from his professional duties for only three business days in late January.
Thereafter, when no deposition dates had been made available as of February 12, 1999, plaintiff moved the court for an order compelling plaintiff to produce Dr. Stanton-Hicks for deposition. Plaintiff neither opposed the motion nor sought an extension of the discovery cut-off date. The trial court granted the motion on April 29, 1999, ordering plaintiff to provide three alternative dates for deposing Dr. Stanton-Hicks prior to May 21, 1999. Plaintiff did not comply with this order; rather, he filed a motion for continuance on May 7, 1999, arguing that Dr. Stanton-Hicks was out of the country and unavailable for deposition until June 12, 1999. Plaintiff did not accompany his motion with a memorandum in support, nor did he attach any evidentiary materials verifying his contention that Dr. Stanton-Hicks would be unavailable to testify until June 12, 1999. Indeed, Dr. Stanton-Hicks's June 14, 1999 affidavit makes it clear that he was out of the country only from May 20, 1999 to June 5, 1999. Further, neither Dr. Stanton-Hicks's nor plaintiff's counsel's affidavits offer any justification for plaintiff's failure to produce Dr. Stanton-Hicks for deposition in the remaining time between January 5, 1999 and May 21, 1999. Indeed, plaintiff's counsel's affidavit suggests that his efforts at scheduling Dr. Stanton-Hicks for deposition in the four-plus months prior to the doctor's absence from the country were less than aggressive.
Further, plaintiff's assertion that the request for continuance was engendered by the stay of the proceedings is unpersuasive. In both his brief and at oral argument, plaintiff argued that Dr. Stanton-Hicks was fully prepared to be deposed prior to the imposition of the stay, but was no longer prepared after the stay was lifted because he lost plaintiff's records in the process of moving his office and had also assumed additional administrative responsibilities at the hospital where he was employed. These contentions, however, are unsupported by the record. Neither Dr. Stanton-Hicks nor plaintiff's counsel alluded to these circumstances in their affidavits, nor did plaintiff offer any evidence with his motion for continuance in support of these contentions.
In short, I would find that the trial court did not act unreasonably, arbitrarily or unconscionably under the circumstances of this case and, accordingly, did not abuse its discretion in denying plaintiff's motion for continuance.
By the third assignment of error, plaintiff contends that the trial court erred in dismissing the case based upon plaintiff's failure to prosecute rather than upon plaintiff's failure to comply with discovery orders. Specifically, plaintiff argues that the trial court's exclusion of his sole expert witness's testimony effectively ended plaintiff's case; thus, the trial court should not have required the parties to proceed to trial and erred in dismissing the action for failure to prosecute based upon plaintiff's failure to appear at trial. According to plaintiff, the trial court was under a duty to dismiss the case, sua sponte, as a sanction for plaintiff's failure to comply with its discovery orders pursuant to Civ.R. 37(B)(2)(c) and Civ.R. 41(B)(1). Plaintiff maintains that requiring him to present his medical malpractice case, after excluding all expert testimony and refusing to dismiss the case, constituted both an abuse of discretion and an error of law.
The record does not support plaintiff's contention that he orally requested a Civ.R. 37(B)(2)(c) dismissal at the June 18, 1999 pretrial hearing on defendants' motions in limine. A review of the transcript of the June 18, 1999 proceeding fails to reveal any such request by plaintiff. Moreover, had plaintiff appeared at trial on June 28, 1999, and requested such a dismissal, it is entirely possible that the trial court may have granted such a request. When plaintiff failed to appear at trial, however, he was foreclosed from making such a request. Further, plaintiff's motion requesting a Civ.R. 37(B)(2)(c) dismissal was filed on July 6, 1999, eight days after trial and four days after the judgment entry dismissing the case for failure to prosecute was filed. Accordingly, plaintiff's motion requesting such relief was moot upon filing.
Moreover, plaintiff cites no authority for the proposition that a trial court must, as a matter of law, dismiss a case under Civ.R. 37(B)(2)(c) and/or Civ.R. 41(B)(1) after exclusion of a plaintiff's expert witness in a medical malpractice case for failure to comply with discovery orders. Although both Civ.R. 37(B)(2)(c) and 41(B)(1) permit dismissal of an action for failure to comply with court orders, neither rule states that dismissal is required. In short, the trial court's decision not to dismiss the case after the June 18, 1999 pretrial conference and to proceed with the scheduled trial was well within its discretion.
Plaintiff's fourth assignment of error takes issue with the trial court's decision to dismiss plaintiff's action for want of prosecution. A decision to dismiss a case with prejudice for lack of prosecution lies within the sound discretion of the trial court. Pembaur v. Leis (1982), 1 Ohio St.3d 89. In Pembaur, the Ohio Supreme Court held at the syllabus:
Pursuant to Civ.R. 41(B)(1), it is not an abuse of discretion for the trial court to dismiss an action, with prejudice, for lack of prosecution when a plaintiff voluntarily fails to appear at a hearing, without explanation, when the court has directed him to be present and his location is unknown.
In the instant case, the trial court dismissed the action for failure to prosecute after plaintiff and his counsel failed to appear for trial on June 28, 1999. After excluding Dr. Stanton-Hicks's testimony at the June 18, 1999 pretrial conference, the court reiterated before all counsel that trial would proceed in ten days. Indeed, plaintiff acknowledges that fact in his brief. Despite knowing that trial would proceed as scheduled, however, neither plaintiff nor his counsel appeared. As justification for his absence, plaintiff explains that "it was evident to [plaintiff] that trial would be a vain act, unnecessarily taxing his own resources and judicial economy." Plaintiff's brief at 19.
Plaintiff's reliance on the "doctrine of vain acts" as an explanation for his willful failure to appear at trial is misplaced. A careful reading of the case plaintiff cites in support of this argument, Gates Mills Investment Co. v. Village of Pepper Pike (1978), 59 Ohio App.2d 155, does not justify his position. Under this limited procedural rule of administrative law, a party's failure to exhaust administrative remedies is not an effective affirmative defense if:
* * * seeking of an administrative remedy would be a vain act, where the administrative agency does not have authority to grant the relief requested. * * *
A vain act is defined in the context of lack of authority to grant administrative relief and not in the sense of lack of probability that the application for administrative relief will be granted. [ Id. at 167.]Gates Mills is simply inapplicable to the case at bar. There is no failure to exhaust administrative remedies at issue in this case. Furthermore, there is nothing to indicate that the trial court lacked the lawful authority to conduct the trial of this matter. The fact that plaintiff anticipated that defendants would prevail at trial does not excuse his failure to appear.
There is no indication in the record that plaintiff provided any notice whatsoever to either the court or opposing counsel that he would not appear at the June 28, 1999 trial. Indeed, the trial court acknowledged as much, stating:
* * * I had a phone conversation that was, I guess, all parties were on the phone dealing with how to proceed today. And it was my understanding somebody can correct me if I'm wrong that I was under the impression that everybody was going to be here this morning because we hadn't resolved any matters. And plaintiffs' counsel told my staff attorney that he actually called him this morning he's still in Canton and my staff attorney told him that he was under the impression that everybody was supposed to be here this morning because nothing was resolved how we were going to proceed. And I never told plaintiffs' counsel that they shouldn't be here. [June 28, 1999 Tr. at 15.]
Although plaintiff filed a motion to stay the proceedings four days before the commencement of trial, that motion was still pending at the time of trial and was not overruled until the morning of trial. Under the circumstances, the trial court was well within its discretion to dismiss plaintiff's claims with prejudice for failure to prosecute.
By his fifth assignment of error, plaintiff argues that the trial court erred in granting defendants' motion to correct the record nunc pro tunc without giving plaintiff time to respond and without setting the motion for either oral or non-oral hearing as required by Franklin County Common Pleas Court Loc.R. 21.01 ("Loc.R. 21.01"). Loc.R. 21.01 provides:
All motions shall be accompanied by a brief stating the grounds and citing the authorities relied upon. The opposing counsel or a party shall serve any answer brief on or before the 14th day after the date of service as set forth on the certificate of service attached to the served copy of the motion. * * * On the 28th day after the motion is filed, the motion shall be deemed submitted to the Trial Judge. Oral hearings on motions are not permitted except upon leave of the Trial Judge upon written request by a party. The time and length of any oral hearing shall be fixed by the Trial Judge. Except as otherwise provided, this Rule shall apply to all motions.
Loc.R. 21.01 expressly applies to all motions "[e]xcept as otherwise provided." Thus, Loc.R. 21.01 applies only in the absence of a contrary provision and does not supercede any other rule of civil procedure.
A court's inherent power to correct clerical errors nunc pro nunc is codified in Civ.R. 60(A), which provides, in pertinent part:
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. * * * [Emphasis added.]
In the instant case, the court's nunc pro tunc order was entered to correct a clerical error made in the order of filing the entry excluding plaintiff's expert witness and the entry dismissing plaintiff's action. While the trial court could have provided notice to plaintiff of its intention to correct the record prior to the filing of the nunc pro tunc entry, it was under no obligation to do so pursuant to Civ.R. 60(A). That being the case, plaintiff was clearly not entitled to fourteen days in which to formulate a response in opposition.
In Yatsko v. Yatsko (July 29, 1998), Medina App. No. 2681-M, unreported, the Ninth District Court of Appeals rejected a similar challenge on similar procedural facts. In Yatsko, the trial court, as the result of clerical error, issued an agreed judgment entry that did not conform to the stipulated agreement of record. The plaintiffs moved the court to modify the agreed judgment entry nunc pro tunc. The trial court granted the motion, amending the order nunc pro tunc three days later. The defendants claimed on appeal that they were "prejudiced by the entry of the nunc pro tunc order, because they were not afforded proper notice or given an opportunity to respond in opposition." Id. Citing the express language of Civ.R. 60(A), however, the court rejected defendants' contention:
Clearly, the rule for the correction of clerical errors does not require any notice be given to the parties unless the court should so order it. The Court did not err, then, in granting the motion to enter the nunc pro tunc order without affording defendants-appellants notice or an opportunity to be heard. [ Id.]
The Sixth District Court of Appeals reached the same conclusion in Tidwell v. Clark (June 5, 1981), Lucas App. No. L-80-340, unreported. In Tidwell, the trial court, sua sponte, entered a nunc pro nunc order clarifying that its earlier dismissal of a now re-filed action had been without prejudice. The appellant filed a motion to vacate the nunc pro tunc entry. The trial court denied the motion. On appeal, the appellant argued that the trial court committed reversible error both by refusing to vacate the nunc pro tunc order and by denying plaintiff's request for a hearing on the issue. Citing Civ.R. 60(A), the appellate court upheld the trial court's sua sponte correction of the record nunc pro tunc without affording either notice or a hearing. "Curiously, neither party has cited or discussed Civ.R. 60(A) which we find dispositive of the case. * * * The language of the rule is clear and unambiguous." [ Id.]
As noted previously, plaintiff's only support for his argument is that Loc.R. 21.01 typically provides for a fourteen-day reply period within the standard motion cycle. Loc.R. 21.01 expressly disclaims, however, that it applies to all motions "except as otherwise provided." As noted by the Yatsko and Tidwell courts, however, Civ.R. 60(A) carves out an exception to this general rule, directing instead that the court may grant nunc pro tunc corrections of the record after such notice, "if any," that it chooses to provide. Accordingly, the trial court did not err in granting defendants' motion to correct the record nunc pro tunc without affording plaintiff an opportunity to be heard in opposition.
By the sixth assignment of error, plaintiff contends that the trial court abused its discretion in entering the nunc pro tunc order correcting the record to reflect its intention to exclude Dr. Stanton-Hicks's expert witness testimony as of July 2, 1999 at 12:00 p.m. rather than as of June 18, 1999, the date the court orally ruled that Dr. Stanton-Hicks's testimony would be excluded. Plaintiff postulates that the court withheld journalization of its decision to exclude Dr. Stanton-Hicks's testimony in order to either: (1) improperly entice plaintiff into wasting his time, effort and money in preparing Dr. Stanton-Hicks for trial, or (2) circumvent plaintiff's interlocutory appeal. Plaintiff concedes, however, that "[t]here is no evidence to support this conclusion in the record or in the transcript of proceedings." Plaintiff's brief at 5.
Although the court announced its decision to exclude Dr. Stanton-Hicks's testimony at the pretrial conference on June 18, 1999, that announcement had no legal effect until it was reduced to judgment entry and filed with the clerk of courts. See State ex rel. Indus. Comm. v. Day (1940), 136 Ohio St. 477, paragraphs one and two of the syllabus. It is well-settled that "'[a] court of record speaks only through its journal and not by oral pronouncement * * *.'" Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80, 83, quoting Schenley v. Kauth (1953), 160 Ohio St. 109, paragraph one of the syllabus. The purpose of the rule is to allow a court latitude to "change [its] mind between the time of announcing a decision and the filing of a judgment entry." Atkinson, supra.
I find no abuse of discretion in the trial court's decision to reserve its oral evidentiary ruling for reconsideration up through the date of trial. Given that the oral ruling had yet to be given legal effect as of the date of trial, had plaintiff appeared on the appointed trial date, the trial court could still have revised its evidentiary ruling and continued the trial or dismissed the case as a discovery sanction, as plaintiff himself later urged. After plaintiff failed to appear for trial, however, the trial court was well within its discretion to journalize its oral evidentiary ruling. The problem in this case arose from the clerical mistake that caused the interlocutory judgment entry to be filed after the case was dismissed. That error was corrected by the trial court nunc pro tunc and affords plaintiff no basis for reversal or remand now.
In that I would overrule all six of plaintiff's assignments of error, I would affirm the judgments of the Franklin County Court of Common Pleas in all respects.