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Joseph Mcgrath v. Michele I. Bassett

November 3, 2011

JOSEPH MCGRATH PLAINTIFF-APPELLANT
v.
MICHELE I. BASSETT DEFENDANT-APPELLEE



Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-720945

The opinion of the court was delivered by: Larry A. Jones, J.:

Cite as McGrath v. Bassett,

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

BEFORE: Jones, J., Boyle, P.J., and Rocco, J.

{¶1} Plaintiff-appellant, Joseph McGrath, pro se, appeals the trial court's judgment dismissing his case with prejudice. We affirm.

I. Procedural History

{¶2} In November 2009, McGrath, pro se, filed a complaint against defendant-appellee, Michele Bassett for "fraud, deceit, unjust enrichment, breach of contract, and future damages." The complaint was filed in the Ashtabula County Court of Common Pleas. The Ashtabula County docket indicates that in early December 2009, McGrath filed a "notification [that] plaintiff's first set of requests for admissions were served upon the defendant Michele I. Bassett, with service." Later in December, McGrath filed a motion to deem his admissions admitted.

{¶3} A January 2010 docket entry demonstrates that service of the summons and complaint was not had on Bassett. Service was reissued and on February 2, 2010, Bassett filed a motion to transfer the case. On February 4, McGrath filed a motion for default judgment. On February 12, the court granted Bassett's motion and the case was ordered to be transferred to the Cuyahoga County Court of Common Pleas.

{¶4} In March 2010, the case was filed in the Cuyahoga County Court of Common Pleas. On April 14, 2010, McGrath filed a "renewal of his demand for judgment by default." On April 19, Bassett filed a motion for leave to file an answer.

Bassett's motion was granted, and her answer was filed on April 28. Also on April 28, McGrath filed an opposition to Bassett's motion for leave, "and/or" a "motion for judgment, summary judgment and to deem his requests for admissions admitted."

{¶5} In May 2010, the court denied McGrath's motion for default judgment. In August 2010, McGrath renewed his motions to have his admissions deemed admitted, for summary judgment, and for judgment on the pleadings. On September 8, the trial court denied McGrath's motion to have his admissions deemed admitted. On September 17, McGrath filed an "amended notification that [his] first set of requests for admissions were served upon [Bassett] on 11-20-2009, both written and on floppy disk and [his] notification [that] [his] first set of requests for admissions are admitted by default."

{¶6} In September 2010, the trial court denied McGrath's motions to deem his request for admissions admitted, for summary judgment, and for judgment on the pleadings.

{¶7} In October 2010, McGrath failed to appear at the final pretrial hearing; Bassett and her counsel were present. In early November 2010, McGrath filed motions to continue the November 10, 2010 trial, for conveyance,*fn1 for leave to file a motion for summary judgment, for reconsideration, and for relief from judgment. On November 9, the court denied McGrath's motions, with the exception of the motion to continue the trial.

{¶8} A telephone conference was set for December 3, 2010. A December 8 docket entry reads:

"The court attempted to complete the telephonic pretrial with plaintiff on 12/03/2010 as laid out in its correspondence dated November 30, 2010 to [ ] Ms. Katrenia Webb, unit supervisor, Lake Erie Correctional Institute[sic]. The court attempted to contact both Ms. Webb and Ms. Hively of Lake Erie Correctional Facility. Despite the Court['s] efforts to conduct the hearing both Ms. Hively and Ms. Webb were unavailable. The court was therefore unable to speak with plaintiff Joseph McGrath. The court hereby resets the trial date for Thursday, January 3, 2011 at 9 a.m. There shall be no further continuances. Plaintiff is furthermore admonished that all pleading[s] and/or motions submitted to this court shall be served upon defendant's counsel of record * * *. Failure to comply with these instructions shall result in plaintiff's motions being stricken from the record."

{¶9} The case was called for trial on January 3, 2011; McGrath was not present. The trial court dismissed the case with prejudice. McGrath appeals, raising siX assignments of error, which are set forth in the appendix.

II. Law and Analysis

{ΒΆ10} McGrath contends in his assignments of errors that the trial court abused its discretion. Two of the assignments, the third and fourth, are not reviewed for an abuse of discretion, however. The remaining assignments of error are reviewed under the abuse of discretion standard. An abuse of discretion connotes that the court's attitude is arbitrary, ...


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