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Devine v. Phi Gamma Delta Fraternity9/20/2002
. Ann Devine, personal representative of the estate of her deceased son, Eric Devine, appeals from the dismissal of her wrongful death lawsuit against Phi Gamma Delta Fraternity. The lawsuit was occasioned by Eric's tragic death in 1995. This case was previously before this court in Clark App. No. 2001 CA 5, wherein we affirmed the trial court's ruling that Mrs. Devine's claim against International Fraternity of Phi Gamma Delta was time barred. Id., June 22, 2001.
. Mrs. Devine asserts a single assignment of error - cast as a rhetorical question - and three propositions of law as follows:
. "DID THE TRIAL COURT ERR IN DISMISSING THE CASE BASED UPON PRIOR COUNSEL'S FAILURE TO PROVIDE VERIFIED RESPONSES AND AN OFF THE RECORD DISCUSSION WITH THE SAME PRIOR COUNSEL?
. "1. A Court errs when it dismisses a case with prejudice without notice and hearing to determine the willfulness of the violation or with prior notice of its intent to dismiss.
. "2. An unauthorized off the record promise to dismiss for no consideration is non-binding and cannot form the basis for a court's decision to dismiss an action with prejudice.
. "3. The harsh remedy of dismissal should only be used in the extreme cases where bad faith, willfulness or fault are clear on the record." 1.
. The procedural history pertinent to this appeal, as revealed by the record, begins shortly after we disposed of Mrs. Devine's first appeal.
. July 16, 2001: The Fraternity files a motion to compel discovery. The motion seeks an order compelling response to interrogatories and a request for production of documents which were served May 27, 2000. Counsel for the Fraternity relates that he has held off moving to compel and scheduling depositions based on the representation of Mrs. Devine's then counsel, Alfred Weisbrod, that the lawsuit against the Fraternity would be dismissed if the appeal involving the International Fraternity were unsuccessful. That same date, the Fraternity filed a notice of deposition duces tecum scheduling discovery depositions of Mrs. Devine's experts August 1, 2001, and a notice of deposition of Mrs. Devine, James Devine and Danielle Devine on July 31, 2001.
. July 31, 2001: Trial court sustains motion and orders compliance with the Fraternity's discovery requests within fourteen days. Civ.R. 37 sanctions for noncompliance are mentioned. An August 20, 2001 pretrial is scheduled.
. August 16, 2001: Attorney Weisbrod files notice of submission representing he had submitted answers to interrogatories and a response to the Fraternity's document request.
. September 5, 2001: Attorney Weisbrod is permitted to withdraw as counsel and Mrs. Devine is given thirty days to obtain new counsel. A trial date of November 27, 2001 is announced.
. September 21, 2001: Attorney Rex Wolfgang enters his appearance as Mrs. Devine's lawyer.
. September 28, 2001: Mrs. Devine moves to continue trial from November 27, 2001. Although the record does not reflect action on this motion, Mrs. Devine represents in her appellate brief that the trial court agreed to continue the trial to May, 2002.
. December 12, 2001: The Fraternity files its "second motion to compel discovery and for sanctions." (Emphasis ours). Therein, counsel for the Fraternity represented he had received unverified answers to interrogatories and no response to the request for documents. Counsel also represented that requests to depose Mrs. Devine and her witnesses had gone unanswered. Counsel also asserted Mrs. Devine had reneged on her promise to dismiss following the adverse ruling by this court. Th
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