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FV-I, Inc. v. Knecht

Court of Appeals of Ohio, Tenth District

December 17, 2019

FV-I, Inc., [in trust for Morgan Stanley Mortgage Capital Holdings, LLC], Plaintiff-Appellant,
v.
Bernath L. Knecht et al., Defendants-Appellees.

          APPEALS from the Franklin County Court of Common Pleas (C.P.C. No. 16CV-8591)

         On brief:

          McGlinchey Stafford and James W. Sandy, for appellant. Argued: James W. Sandy.

         On brief:

          W. Vincent Rakestraw, for appellees. Argued: W. Vincent Rakestraw.

          DECISION

          NELSON, J.

         {¶ 1} What happens when, after a record of what might be taken to be dilatory conduct, the plaintiff in a case moves the day before the (second) scheduled trial date for another delay of the matter, the assigned magistrate promptly overrules the motion and directs that "[a]ll parties shall appear" for the trial as scheduled, but the plaintiff then fails to appear through counsel on that trial date?

         {¶ 2} Well, one thing that might happen is that the magistrate could recommend to the trial judge that plaintiffs case be dismissed with prejudice. And that the trial judge some weeks later, after considering the plaintiffs objections to that recommendation, could follow the recommendation and dismiss the case with prejudice.

         {¶ 3} That, at least, is what happened in this case. The plaintiff, FV-I, Inc., then a few months later asked the trial judge to reconsider her decision pursuant to Civil Rule 60(B), the magistrate conducted a hearing on that motion, and the trial judge adopted the magistrate's decision denying that motion.

         {¶ 4} FV-I appeals, making two assignments of error:

[I.] The Trial Court committed reversible error when it dismissed the Foreclosure with prejudice without first providing notice to FV-I and when it disregarded FV-I's competent, credible, and rational explanations for why it could not prosecute the case and did not appear at trial.
[II.] The Trial Court abused its discretion when it denied FV-I's motion for relief from judgment when it established that excusable neglect existed or a mistake had been made, that it had a meritorious claim, and that its motion was timely.

         Appellant's Brief at ii.

         {¶ 5} Because FV-I both forfeited its notice argument and received notice of the proposed dismissal with prejudice (thereby permitting it to offer the "explanations" to which its first assignment of error adverts), because the trial court did not abuse its discretion in adopting the magistrate's recommendation to dismiss the case with prejudice, and because the trial court did not abuse its discretion in denying the 60(B) motion, we will affirm the trial court's judgments. We first provide some elaboration.

         {¶ 6} FV-I started this case as a foreclosure action against Bernath and Eleanore Knecht and other defendants in 2016. The Knechts promptly answered, raising various affirmative defenses. Then the case sat until June of 2017, when the trial court ordered FV-I to show cause as to why its action should not be dismissed pursuant to Civil Rule 41(B)(1) for failure to prosecute. FV-I responded with a one-sentence motion stating that discovery had been completed and seeking an extension of time" 'to file its dispositive pleadings' "; it requested" '45 days to proceed to judgment.'" See June 21, 2017 Motion for Extension of Time. The trial court granted that extension motion four days later, on July 10, 2017; it established a new dispositive motion deadline of July 31, 2017.

         {¶ 7} But-although FV-I did not otherwise respond to the show cause order-it never filed the impliedly promised dispositive motion. It did not act by the July 31, 2017 deadline; it did not act within the 45 days specified by its June 21, 2017 motion; and it did not act within the months that followed.

         {¶ 8} On September 7, 2017, in advance of a looming September 11, 2017 trial date, the trial court referred the case to a magistrate for an October 6, 2017 bench trial. The docket reflects no further activity between that referral and the day before the scheduled trial.

         {¶ 9} On October 5, 2017, counsel for FV-I filed a two-sentence Motion to Continue the Bench Trial set for the next day. The continuance motion, advanced only in the name of FV-I, was put forward "on the grounds that settlement attempts with the primary defendant are still in progress." FV-I gave no indication as to how much additional delay it sought, saying only: "Plaintiff hereby requests the bench trial be continued to allow settlement efforts to continue and possibly be finalized." October 5, 2017 Motion to Continue Bench Trial Scheduled for October 6, 2017.

         {¶ 10} The magistrate acted quickly to address FV-I's motion. That very day, in an entry time-coded 2:13 p.m., the magistrate advised the parties: "Plaintiffs motion for a continuance filed one day prior to the scheduled jury waived trial, is hereby DENIED. All parties shall appear and proceed with the jury waived trial scheduled for October 6, 2017 at 9:00 a.m."

         {¶ 11} Nonetheless, no representative for FV-I, including its counsel, appeared for trial the next day. And although Civil Rule 41(A) generally permits a plaintiff to file "a notice of dismissal at any time before the commencement of trial," which dismissal would be "without prejudice," FV-I took no such action. It made no communication to the court, at all. See, e.g., October 6, 2017 Magistrate Report and ...


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