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Allen v. Colfor Manufacturing6/6/2002
. This timely appeal comes for consideration upon the record in the trial court, the parties' briefs, and their oral arguments to this court. Plaintiff-Appellant, Robert Allen (hereinafter "Allen"), appeals the decision of the Carroll County Court of Common Pleas dismissing Allen's action against Defendant-Appellees, Colfor Manufacturing, Inc. (hereinafter "Colfor") and the Administrator of Ohio's Bureau of Workers' Compensation (hereinafter "Administrator"), with prejudice pursuant to Civ.R. 41(B)(1). The issues before us are whether: 1) dismissing an action with prejudice for a discovery violation is an abuse of discretion; and, 2) proper notice was given to the Plaintiff prior to the dismissal of the action with prejudice. Because we conclude Allen's conduct was not so dilatory as to provide substantial grounds for dismissal with prejudice, and that the trial court abused its discretion by doing so, we reverse the trial court's decision and remand this cause for further proceedings.
. Allen was employed by Colfor when, on June 16, 1998, he injured his back in the course of his employment. Allen filed a workers' compensation claim for "lumbrosacral strain" which was allowed. He later moved to have a claim for "L5-S1 disc herniation without radiculopathy" allowed as well. This claim was denied at all administrative levels. Accordingly, Allen filed a complaint in the trial court on November 9, 1999, pursuant to R.C. 4123.512.
On August 22, 2000, as a result of an August 17, 2000 pre-trial hearing, the trial court ordered Allen to appear for two medical exams; the first on September 1, 2000, with Dr. Dorfman and the second on September 11, 2000, with Dr. Kolarik. Allen wished both appointments to be held on September 11, 2000. However, Allen did not inform the court of this fact and his attempts to directly contact the doctor and the attorney general's office to change the September 1, 2000 appointment failed. Allen did not attend the September 1, 2000 medical exam. As a result, the Administrator moved for a second order compelling Allen to appear for an independent medical exam by Dr. Dorfman. On November 1, 2000, the trial court sustained that motion and ordered the Administrator to schedule a new appointment and advise Allen's counsel, and ordered Allen to reimburse the Administrator for attorney's fees and the missed appointment fee. Furthermore, the court stated, "Failure to comply with this order or any further order of this Court may result in dismissal of this action." The Administrator never rescheduled the medical exam with Dr. Dorfman and Allen only paid a portion of the fees he was ordered to pay.
. Citing Allen's failure to comply with the November 1, 2000 order of the court, on February 12, 2001, the Administrator moved the trial court to dismiss the suit pursuant to Civ.R. 41(B)(1). Allen responded to this motion on February 26, 2001. On March 23, 2001, the trial court granted the motion and dismissed the matter with prejudice.
. Allen presents two assignments of error:
. "The trial court abused it's discretion by dismissing, with prejudice, Appellant's claims for failure to comply with a discovery court order when other, less harsh and alternative, sanctions were available."
. "The trial court abused its discretion by failing to provide adequate notice to Appellant that his case would be dismissed with prejudice for failure to comply with a court order." Although we find Allen had adequate notice of the possibility of dismissal, we find the trial court abused its discretion when it dismissed Allen's claims with prejudice. Accordingly, we reverse its decision and remand the cause for further proceedings.
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