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Johnson v. Meridia Euclid Hospital3/28/2002
JUDGMENT AFFIRMED
Plaintiff-appellant Shirley Johnson appeals from the trial court order that denied her motion for relief from a judgment of dismissal of her complaint.
Appellant argues the trial court's order was improper, contending she did not receive notice her complaint was subject to dismissal for her failure to attend a pretrial hearing, and further contending the dismissal of her complaint without notice compromised her right to due process of law. Appellant's first contention, however, is unsupported in the record, and this court may not address appellant's second contention. Therefore, the trial court's order is affirmed.
On May 31, 2000 appellant filed her complaint against defendants-appellees Meridia Euclid Hospital, The Cleveland Clinic Foundation, Dr. Cary Scott, and Dr. Riaz Tarar, alleging their medical malpractice in August 1996 caused the death of her son Christopher. Appellant proceeded pro se and set forth as her address in both the caption and above her signature of verification the following: 125 East 156th Street, Cleveland, Ohio 44110. Each appellee eventually filed an answer to the complaint.
On June 23, 2000, since the case previously voluntarily had been dismissed by appellant, appellant's case was reassigned pursuant to Sup.R. 36(D) to the trial court that originally had presided over it. The docket reflects the post-card notifications to appellant of this event that were sent through the postal service were returned, thus indicating they had not been delivered.
On July 14, 2000 the trial court issued an order scheduling a case management conference for August 15, 2000 at 9:15 a.m. Once again, the docket reflects the post-card notification of the order to appellant was returned to the court undelivered.
On August 24, 2000 the trial court issued an order stating verbatim as follows:
Case Mgmt Conf called 8/15/00. No appearance by PLTF. Case Mgmt Conf is hereby reset for 9/14/00 at 9:15 a.m. in Courtroom 23-D. PLTF is hereby notified that failure to appear on 9/14/00 will result in dismissal of this case for failure to prosecute, pursuant to Ohio Rule of Civil Procedure 41(B)(1).
On September 5, 2000 the docket reflects the post-card notification of the foregoing addressed to appellant was returned undelivered.
On September 19, 2000 the trial court issued an order that stated verbatim the following:
Second Case Mgmt Conference called 9/14/00; plaintiff failed to appear for second time. Pursuant to this court's entry of 8/24/00, case is hereby dismissed for failure to prosecute, pursuant to Ohio R. Civ. P. 41 (B)(1). This dismissal is with prejudice, as case had been previously filed and dismissed. Final.
Since the post-card notification to appellant of the foregoing order was not returned to the trial court by the postal service, appellant apparently received it.
Eight months later on May 18, 2001, appellant filed in the trial court a motion for relief from the judgment of dismissal. Although appellant now was represented by counsel, she did not refer to Civ.R. 60(B) in her motion. Instead, appellant cited only Civ.R. 41(B) and argued she had received notice of neither the scheduled case management conferences nor the possibility of the sanction of dismissal for her failure to attend them.
Appellant supported her motion both by reference to the trial court's docket entries that indicated post-card notices to her had been returned and by her affidavit. In pertinent part, appellant averred she was the plaintiff in the case, she had been required by circumstancesto represent herself in refiling her acti
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