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Nohle v. Gwiner

Court of Appeals of Ohio, Third District

July 15, 2013

DAWN-MARIE NOHLE, PLAINTIFF-APPELLANT,
v.
COREY GWINER, ET AL., DEFENDANTS-APPELLEES.

Appeal from Seneca County Common Pleas Court Trial Court No. 10CV0520

Dawn-Marie Nohle, Appellant

Alan B. Dills for Appellees.

OPINION

WILLAMOWSKI, J.

{¶1} Plaintiff-Appellant, Dawn-Marie Nohle ("Nohle"), pro se, appeals the judgment of the Seneca County Court of Common Pleas denying Nohle's Civ.R. 60(B) motion to set aside the dismissal of her case. On appeal, Nohle contends that the trial court abused its discretion when it denied her motion for relief from judgment. For the reasons set forth below, the judgment is affirmed.

{¶2} This case arises from a motor vehicle collision which occurred on November 14, 2005. Defendant-Appellee Corey Gwiner ("Gwiner") failed to stop at a stop sign, causing a collision with Nohle's vehicle. Nohle's vehicle suffered extensive damage and she reported that her "ankle and back [were] hurting." (Appellant's Ex. A, Traffic Crash Report) Gwiner acknowledged fault in causing the accident, so liability is not contested.

{¶3} On November 13, 2007, Nohle, acting pro se, filed a complaint in Case No. 07-CV-0622 seeking damages for alleged injuries and naming Gwiner, his father (Gary Gwiner), and Buckeye State Mutual Insurance Company, as defendants (hereinafter, collectively "Defendants" or "Appellees"). Significant discovery difficulties were encountered, requiring repeated motions to compel against Nohle.

{¶4} The matter was ultimately assigned for trial on October 14, 2009. On the morning set for trial, 41 prospective jurors, defense counsel, Defendants, the judge and the court reporter were present and ready for trial. (July 28, 2011 Pretrial Tr. 10) Nohle did not appear but, instead, faxed a Civ.R. 41(A) dismissal, without giving any prior notification to the court or defense counsel. (Id.)

{¶5} Nohle re-filed a new complaint, Case No. 10-CV-0520, 364 days later, on October 13, 2010. Additional motions to compel completion of discovery followed in this second action. On January 12, 2011, the trial court scheduled this second case for Mediation and Final Settlement Pretrial Conference on July 28, 2011, at 9:00 a.m. The parties had more than six months advance notice of this schedule.

{¶6} On July 28, 2011, Nohle failed to appear for the scheduled mediation at 9:00 a.m. Instead, she called the trial court shortly after 10:00 a.m. and stated on the record that the reason that she was not in attendance was that she was in Columbus for day three of the Ohio Bar Examination. Nohle apologized for not attending and stated that, "suddenly at the last moment, I realized that the third day of the Ohio State Bar exam and this mediation were scheduled for the same day." (Pretrial Tr. 3)

{¶7} The trial court then dismissed the case, noting the long list of repeated difficulties experienced with Nohle during discovery proceedings, the previous abrupt dismissal without prior warning on the morning of trial in the first case, and particularly her failure to request permission to attend the mediation and final settlement pretrial other than in person or to seek a continuance. (Id.)

{¶8} The trial court filed its judgment entry on August 1, 2011, denying Nohle's request for a continuance and dismissing the case with prejudice for want of prosecution. This judgment entry was a final appealable order. No appeal was taken.

{¶9} Nohle then filed a Civ.R. 60(B) motion for relief from judgment, 364 days later, on July 31, 2012. Nohle's motion stated that her pet Newfoundland, Sadie Lynn, suddenly passed away on the date of the final pretrial, and that she had tried to call the trial court and mediator in order to request permission to attend the mediation via telephone. Nohle stated that "the failure to attend the mediation scheduled for July 28th, 2011, was solely due to the unexpected passing of her companion animal." (Jul. 31, 2012 Civ.R. 60(B) Mtn.) Attached was a veterinary certificate of cremation confirming that the dog's date of death was July 28, 2011. Also attached were phone records indicating that several calls were placed to the Seneca County Clerk of Court's office on July 28th.[1] Appellees filed a brief in opposition.

{¶10} The trial court held a hearing on Nohle's Civ.R. 60(B) motion on November 13, 2012. Nohle argued that she was entitled to relief from judgment because she had a meritorious claim and that the civil rules allow for relief from judgment due to "mistake, inadvertence, surprise or excusable neglect." Nohle claimed that the sudden death of her pet, which was like a member of her family, was sufficient to merit consideration as "surprise" that caused her to miss the mediation. (Nov. 13, 2012 Hrg. Tr. 5) She claimed she did not file her 60(B) motion sooner because she needed the time to get over her grief in order to be in a position where ...


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