FV-I, Inc., [in trust for Morgan Stanley Mortgage Capital Holdings, LLC], Plaintiff-Appellant,
Bernath L. Knecht et al., Defendants-Appellees.
APPEALS from the Franklin County Court of Common Pleas
(C.P.C. No. 16CV-8591)
McGlinchey Stafford and James W. Sandy, for appellant.
Argued: James W. Sandy.
Vincent Rakestraw, for appellees. Argued: W. Vincent
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
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
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.
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
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,
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
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