[Cite as Saunders v. Greater Dayton Regional Transit Auth., 2023-Ohio-1514.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

SELENA R. SAUNDERS 

 Appellant

v. 

GREATER DAYTON REGIONAL 

TRANSIT AUTHORITY

 Appellee

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C.A. No. 29573

Trial Court Case No. 2019 CV 04965

(Civil Appeal from Common Pleas 

Court)

. . . . . . . . . . .

O P I N I O N

Rendered on May 5, 2023

. . . . . . . . . . . 

MATTHEW L. ROBERTS & LAUREN M. LARRICK, Attorneys for Appellee

 

JULIUS L. CARTER, Attorney for Appellant

 . . . . . . . . . . . . .

LEWIS, J.

{¶ 1} Plaintiff-Appellant Selena R. Saunders appeals from a judgment of the 

Montgomery County Court of Common Pleas, which dismissed her action with prejudice 

for failure to prosecute. For the reasons that follow, we affirm the judgment of the trial 

court.
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I. Facts and Course of Proceedings

{¶ 2} This is the second time Saunders has appealed a decision to this court 

related to the action she commenced against Defendant-Appellee Greater Dayton 

Regional Transit Authority (“RTA”) in the Montgomery County Court of Common Pleas. 

Our prior opinion was issued on September 3, 2021. Saunders v. Greater Dayton 

Regional Transit Auth., 2d Dist. Montgomery No. 28942, 2021-Ohio-3052. We will 

repeat a few of the facts from our prior opinion to provide some background for the current 

appeal.

{¶ 3} Saunders, an African-American woman, began working for RTA as a bus 

driver in December 2000. She took the position subject to a collective bargaining 

agreement between RTA and the Amalgamated Transit Union, Local 1385 (“ATU”). On 

November 6, 2010, Saunders berated an unruly passenger during a stop at Wright Stop 

Plaza. Afterward, Saunders received a citation from RTA pursuant to the policy of 

progressive discipline in effect at the time of the incident. Saunders was suspended for 

30 days and was advised that the suspension was her final and last warning with respect 

to her customer service. Id. at ¶ 3-6.

{¶ 4} On February 5, 2011, Saunders apparently struck a wooden utility pole while 

driving an RTA bus and did not report the incident. Saunders maintained that she had 

been unaware of any impact, but RTA cited her for a violation of its policy of progressive 

discipline. Following a hearing, Saunders’ employment was terminated effective 

February 28, 2011. Id. at ¶ 7.

{¶ 5} Saunders filed a grievance challenging her termination from employment. 
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An arbitrator found that her termination was not for just cause and directed RTA to 

reinstate her. Saunders also filed a charge of sex discrimination with the Ohio Civil 

Rights Commission, which issued a determination letter finding probable cause that RTA 

had engaged in an unlawful discriminatory practice by subjecting Saunders to discipline 

that was substantially harsher than that issued to similarly situated male co-workers. Id.

at ¶ 8-9.

{¶ 6} In August 2013, Saunders applied for leave under the Family and Medical 

Leave Act. RTA approved the request but then began an inquiry into whether Saunders 

was requesting leave to accommodate her busy schedule at a nursing school that she 

was attending. RTA hired a private investigator and received an anonymous tip that 

Saunders had been bragging in public about taking mental leave of absences so that she 

could finish nursing school while receiving her usual wage from RTA. Ultimately, RTA 

terminated Saunders’ employment effective December 16, 2013. ATU filed a grievance. 

The arbitrator sustained the grievance in part, directing RTA to reinstate Saunders to her 

former position. Id. at ¶ 11-17.

{¶ 7} The Equal Employment Opportunity Commission issued a right-to-sue letter 

to Saunders in February 2014. Saunders filed a complaint in the United States District 

Court for the Southern District of Ohio on June 15, 2015, which she later voluntarily 

dismissed. She filed a second complaint on June 25, 2017, but the court dismissed her 

federal causes of action with prejudice, because the applicable federal statutes of 

limitations had run. Id. at ¶ 18.

{¶ 8} On October 24, 2019, Saunders filed her complaint in the common pleas 
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court, asserting causes of action for sex discrimination under R.C. 4112.02(A), disability 

discrimination under R.C. 4112.02(A), and retaliation under R.C. 4112.02(J). RTA 

moved for summary judgment on all claims, and the trial court sustained RTA’s motion 

on September 25, 2020. Saunders filed a timely notice of appeal. Saunders at ¶ 19.

{¶ 9} On September 3, 2021, we reversed the trial court’s judgment as it related to 

Saunders’ claim of sex discrimination, “because the evidence did not eliminate any 

genuine dispute of material fact on the question of whether the three male comparators 

identified in the complaint were similarly situated to Saunders * * * , nor did the evidence 

eliminate any genuine dispute of material fact regarding RTA’s purportedly 

nondiscriminatory reasons for its comparatively less favorable treatment of Saunders.” 

Id. at ¶ 55. We affirmed the trial court’s judgment in all other respects.

{¶ 10} On October 3, 2021, the trial court issued a final pretrial order in which it set 

deadlines for completion of all discovery, summary judgment motions, and objections to 

trial materials. The order set a final pretrial telephone conference for March 17, 2022,

and a jury trial for March 28, 2022. The order also contained the following warning:

FAILURE TO APPEAR AT THE FINAL PRETRIAL CONFERENCE 

OR TRIAL, OR FAILURE TO HAVE A WELL INFORMED SUBSTITUTE 

AVAILABLE, WILL RESULT IN DISMISSAL OF THE CASE FOR 

FAILURE TO PROSECUTE UNDER OHIO R. CIV. P. 41(B)(1). 

COUNSEL MAY ALSO BE SUBJECT TO OTHER APPROPRIATE 

SANCTIONS.

(Emphasis sic.)
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{¶ 11} Following the October 2021 order, the parties filed numerous motions in 

preparation for the upcoming deadlines. It became clear that the trial would not proceed 

in March 2022. The trial court issued a new final pretrial order setting a final pretrial 

telephone conference for July 28, 2022, and a jury trial for August 8, 2022. This order 

contained the same warning about dismissal that was included in the previous final 

pretrial order. The trial court subsequently issued another final pretrial order on April 19, 

2022, once again identifying a final pretrial telephone conference for July 28, 2022, and 

a jury trial to begin on August 8, 2022. This order contained the same warning about 

dismissal of the case for failure to prosecute that was contained in the previous final 

pretrial orders.

{¶ 12} On June 30, 2022, Saunders filed a motion for recusal, requesting that the 

trial court recuse itself from further proceedings in the matter, “because the Court has 

demonstrated a clear bias against Plaintiff’s counsel and an unwillingness to be impartial.” 

On July 22, 2022, the trial court overruled Saunders’ motion. In its decision, the trial 

court summarized some of the actions by Saunders’ counsel over the past few years in 

the case, including his previous withdrawal as counsel and his limited appearances. In 

overruling Saunders’ motion, the trial court concluded, “This court has no personal bias 

nor prejudice for or against any party or counsel to these proceedings, is well aware of its 

obligations in presiding over a trial, and can continue to fairly and impartially preside over 

this matter.” Decision Overruling Motion for Recusal (July 7, 2022) at p. 5.

{¶ 13} The week before the August 8, 2022 jury trial, the sister of Saunders’

counsel was admitted to the hospital. According to Saunders’ counsel, Julius Carter, this 
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required him to reschedule the day on which he was to meet with the trial court’s bailiff to 

test out the courtroom technology. Appellant’s Brief, p. 6. However, at no point did 

Saunders or her counsel request a continuance of the trial. “On the contrary, [Attorney 

Carter] told the bailiff the hospitalization would have no impact on the trial schedule.” Id.

{¶ 14} The jury trial began as scheduled on Monday, August 8, 2022. Although 

Attorney Carter’s sister was still in the hospital at that time, this fact did not result in any 

interruptions in the jury trial on that first day. According to Carter, on August 9, 2022, the 

second day of trial, he sent an email early in the morning to the trial court’s bailiff and 

opposing counsel alerting them that he was likely not going to be able to make it to court 

that day, because his sister was being moved to the intensive care unit (“ICU”) at the 

hospital. Id. at 7. However, his sister ultimately was not moved to ICU that morning,

and Saunders’ counsel was able to arrive on time for the beginning of the second day of 

the trial. The trial proceeded as scheduled. Id.

{¶ 15} According to Attorney Carter, during the afternoon of the second day of trial, 

while opposing counsel was conducting cross-examination of a witness, he received a 

message that his sister was being moved to the ICU. He wrote a note to inform the bailiff 

and requested a side bar after opposing counsel finished the cross-examination of the 

witness. Id.

{¶ 16} At sidebar, the following discussion occurred:

MR. CARTER: My next witness is Ms. Crutcher, who’s on video. And my 

- -

THE COURT: How long was it?
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MR. CARTER: We don’t know what you cut out.

MR. ROBERTS: Yeah, so we don’t know what you cut out. I believe the 

deposition, it’s - -

THE COURT: We’ll need to go off the record - -

MR. ROBERTS: Okay.

THE COURT: - - without them in here. So we’ll need to take a break.

MR. CARTER: And then separate from that, my sister’s in the ICU, so I 

need to end it for the day pretty shortly. Things have changed.

THE COURT: We will discuss that when the jury is not in the courtroom.

MR. CARTER: That’s fine.

Trial Tr., p. 3.

{¶ 17} After the jury left the courtroom, the trial court proceeded to hear argument 

and rule on several objections. According to Attorney Carter, he was packing up his trial 

gear at this point, because he was planning on leaving for the hospital. Appellant’s Brief, 

p. 8. As a result, he did not actively participate in any of the arguments taking place 

regarding the outstanding objections. Once the trial court finished ruling on the 

remaining objections, the following exchange occurred between the trial court and 

Saunders’ trial counsel:

THE COURT: Mr. Carter, if you need to not be in here during the 

deposition, that’s fine. But I’m not going to stop the trial.

If you need to go outside and make calls or something, that’s fine. When 

Ms. Crutcher’s deposition is finished for the day, if it appears to be 
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appropriate timewise, then we’ll conclude for the day.

MR. CARTER: Say that again, please?

THE COURT: If you need to step out and make calls or do something 

during the deposition, you should feel free to do so. But I am not going to 

stop the trial at this point.

If you had a family emergency - - you contacted the bailiff late last week and 

said you had a family issue. You didn’t ask for a continuance. You didn’t 

ask for a phone conference.

Unfortunately, life experiences happen, and I apologize for those, but I am 

concerned about a jury, and we’re in the middle of a trial, so - -

MR. CARTER: Are you kidding me?

THE COURT: No, Mr. Carter, I am not.

MR. CARTER: Yeah, you must be. I’m leaving and I’m going to the 

hospital.

THE COURT: You can feel free to do so.

MR. CARTER: Now, if you want to continue to play the video, that’s fine.

THE COURT: Sir, you can make your choice - -

MR. CARTER: I’ve made it.

THE COURT: - - about what you choose to do.

MR. CARTER: I’ve made it.

THE COURT: Amy (phonetic), would you please bring the jury back in?

THE PLAINTIFF: What about me?
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MR. CARTER: (Indiscernible) out in the hall.

THE PLAINTIFF: All right.

THE COURT: Now, frankly, if you leave and don’t call this witness - - Mr. 

Carter, if you leave, I am going to find in favor of the Plaintiff (sic). He has 

not called the witness, and I am not playing the video without the witness 

being called by counsel.

Amy, would you go get him and tell him if he doesn’t come back in here, I 

am going to grant judgment for the Defendant? I will have no choice. He 

has not called the witness, and I cannot call the witness.

No, I want to be on the record.

Mr. Carter, you have not called the witness. Until you call the witness on 

the record, I cannot. And if you want to call the witness and have the video 

played and you don’t want to be present, that’s your choice. But I cannot 

call the witness.

MR. CARTER: Mr. Roberts is - - it’s Mr. Roberts’ witness. He’s the one 

who started the deposition.

THE COURT: Sir, you don’t understand. We’re in your case. You have 

to - - he’s not calling the witness now. He - - we’re not in his case.

* * *

Mr. Carter, please call your next witness.

MR. CARTER: The Plaintiff calls Delbera Crutcher.

THE COURT: This is by video, ladies and gentlemen, and the videotape -
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- because the video was made to accommodate Ms. Crutcher’s medical 

condition, she is permitted to testify by video.

* * *

In addition, you’ll notice that Mr. Carter and Ms. Saunders have chosen to 

leave the courtroom without the Court’s permission. That was not with the 

Court’s permission, and they have chosen to do so. This witness was called 

at Plaintiff’s request.

Trial Tr., p. 12-15.

{¶ 18} After Saunders and her counsel left the courtroom, the videotaped 

deposition was played for the jury. Ultimately, the second day of trial ended without 

finishing the playing of the videotaped deposition. The trial was scheduled to resume on 

Thursday, August 11, 2022, after taking a scheduled day off on Wednesday, August 10, 

2022.

{¶ 19} At 12:00 a.m. on the morning of August 11, 2022, Attorney Carter sent the 

following email message to the trial court’s bailiff and copied opposing counsel:

Amy: I’m emailing to notify the court, and opposing counsel, that I 

will not be returning to court this week. For the same reason I left 

yesterday, I will be unavailable. I will file a more formal explanation when 

I have the opportunity. I will send someone to remove my chair from the 

courtroom. Thank you, Julius L. Carter.

{¶ 20} The jury, the trial court, and opposing counsel were present in the courtroom 

on the morning of August 11, 2022, for the beginning of the third day of trial. The trial 
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court went on the record at 9:01 a.m. and explained the situation it was facing. Trial Tr., 

p. 15-24. According to the trial court, the trial had been scheduled to resume at 8:30 that 

morning, but Saunders and her counsel were not present. The court explained what had 

transpired since the afternoon of August 9, 2022, when Saunders and her counsel left the 

trial without permission. Attorney Carter did not contact the trial court through its bailiff 

at any point on August 10, 2022, the scheduled day off from trial. Counsel for RTA also 

did not hear anything from Saunders’ counsel despite the fact that RTA’s counsel sent 

him an email letting him know that the videotaped deposition had not been completed on 

the second day of trial and that the remainder of it would be played at the beginning of 

the third day of trial. Id. at 18-19, 21.

{¶ 21} The trial court then explained that it had received an email from its bailiff at 

8:07 a.m. on the morning of the third day of trial, which forwarded a 12:00 a.m. email from 

Attorney Carter. That email from Attorney Carter stated:

I’m emailing to notify the Court and opposing counsel that I will not 

be returning to court this week. For the same reason I left yesterday, I will 

be unavailable. I will file a more formal explanation when I have the 

opportunity. I will send someone to remove my chair from the courtroom.

Id. at 19.

{¶ 22} At 8:30 a.m., when it was clear that Saunders and her counsel were not

present, the trial court asked its bailiff to call Attorney Carter’s office and send him an 

email. The email to Attorney Carter stated: “Mr. Carter, everyone is here and ready for 

trial this morning. Judge expects you to be here immediately, and if you and your client 
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are not here, she will dismiss your case with prejudice.” Id. at 20. As of 9:08 a.m. the 

bailiff had not received any response from Carter. Further, the trial court asked its judicial 

assistant to call the hallway at the courthouse for both Saunders and her counsel, but 

there was no response. Id. at 20-21. 

{¶ 23} The court then reiterated that Saunders’ counsel had not provided any 

details to the trial court other than that his sister was in the hospital. He had not provided

any details about what hospital she was in or whether he was her guardian, caregiver, 

power of attorney, or decisionmaker. Id. at 21. Then, the trial court explained that the 

email from 12:00 a.m. that morning gave no explanation of the circumstances involving

Carter’s sister and no explanation of when or if he would anticipate going on with the trial. 

The court stated that “I can’t even read his email to suggest he’s asking for a continuance. 

He simply says, ‘I will not be returning to court this week.’ I can’t even determine if there’s 

a sufficient basis for a continuance because of the really utter lack of detail of any 

circumstances. Again, other than the fact that he has a family member in the hospital, I 

can’t read anything from that. Again, I don’t even know where.” Id. at 22.

{¶ 24} Ultimately, at 9:12 a.m., the trial court decided to dismiss the case with 

prejudice, explaining:

THE COURT: All right. The Defense being here and prepared - - and 

again, I do want the record to reflect that when Mr. Carter and his client 

abruptly left court on Tuesday without the Court’s permission, without 

asking for a continuance, Defense counsel and the Defense - - corporate 

representative was present and stayed here through that at least two hours 
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of the deposition that was played, and that the Defense has not abandoned 

the case.

But because Mr. Carter and his client are not present, there has been 

no request for continuance, there has not been sufficient information 

provided to the Court that would allow the Court to determine if a 

continuance or a brief delay of the proceedings was appropriate - - in 

addition, I’m going to note for the record that the jury has been in the jury 

room since approximately 8:30 and are here and prepared to go forward.

I am going to find that the Defendant - - or, excuse me, the Plaintiff 

and her counsel have abandoned this litigation, they have failed to appear 

for trial, failed to continue to prosecute the case, and therefore I am going 

to, on the Court’s own motion, dismiss this matter with prejudice for the 

Plaintiff’s failure to prosecute and for all of the reasons I have just indicated 

on the record.

The matter will be dismissed.

Id. at 23-24.

{¶ 25} The trial court issued an order of dismissal memorializing its oral decision, 

stating: “For the reasons stated on the record on August 11, 2022, and resulting from 

Plaintiff and Plaintiff’s counsel’s failure to appear, this matter is DISMISSED with 

prejudice. Costs to Plaintiff.” (Emphasis sic.) That same day, Attorney Carter’s sister 

passed away. Appellant’s Brief, p. 10.

{¶ 26} Nineteen days later, on August 30, 2022, Carter filed a “NOTICE 
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REGARDING THE NEED TO LEAVE COURT WITHOUT LEAVE OF COURT AND THE 

INABILITY TO RETURN ON THE NEXT SCHEDULED COURT DATE.” In his notice, 

Carter explained that his August 11th email “clearly indicate[d] that a more formal 

document would be filed as soon as it was possible. Rather than allow Plaintiff’s Counsel 

the opportunity to provide a more formal written explanation, the Court went on the record 

and dismissed Plaintiff’s case with prejudice at the start of the next court day.” Carter

also pointed out in a footnote in the notice that “The Court had the opportunity to issue a 

show cause order or dismiss the case without prejudice but instead chose to dismiss the 

case with prejudice.” Carter attached a copy of his August 11, 2022 email to the trial 

court’s bailiff. 

{¶ 27} Saunders filed a timely notice of appeal from the trial court’s August 11, 

2022 order dismissing her action with prejudice.

II. The Trial Court Did Not Abuse Its Discretion by Dismissing Plaintiff’s Action 

with Prejudice

{¶ 28} Saunders’ sole assignment of error states:

THE TRIAL COURT ERRED WHEN DISMISSING PLAINTIFF’S 

CASE WITH PREJUDICE. THE TRIAL COURT ERRED WHEN 

ASSESSING COSTS TO PLAINTIFF.

{¶ 29} Although Saunders styles her assignment of error in terms of whether the 

trial court erred when it dismissed her case with prejudice, “[t]he power to dismiss for lack 

of prosecution is within the sound discretion of the trial court, and appellate review is 
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confined to whether the trial court abused its discretion.” Pembaur v. Leis, 1 Ohio St.3d 

89, 91, 437 N.E.2d 1199 (1982), citing Lopez v. Aransas Cty. Indep. School Dist., 570 

F.2d 541, 544 (5th Cir.1978). An “ ‘abuse of discretion’ has been defined as an attitude 

that is unreasonable, arbitrary or unconscionable. * * * It is to be expected that most 

instances of abuse of discretion will result in decisions that are simply unreasonable, 

rather than decisions that are unconscionable or arbitrary.” AAAA Ents., Inc. v. River 

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 

(1990).

{¶ 30} Civ.R. 41(B) governs dismissals for failure to prosecute. Civ.R. 41(B)(1) 

provides: “Where the plaintiff fails to prosecute, or comply with these rules or any court 

order, the court upon motion of a defendant or on its own motion may, after notice to the 

plaintiff's counsel, dismiss an action or claim.” Before a trial court may dismiss a 

complaint for failure to prosecute under Civ.R. 41(B)(1), “the record must show that the 

plaintiff had notice that dismissal of the complaint was a possibility.” (Citations omitted.) 

Garofolo v. West Bay Care and Rehab. Ctr., 8th Dist. Cuyahoga No. 109740, 2021-Ohio1883, ¶ 15. “The purpose of the notice requirement is to provide a party who is in default 

of a court order an opportunity to correct or explain the circumstances of the party’s 

default and to provide reasons why the case should not be dismissed with prejudice.” 

(Citations omitted.) Whipple v. Estate of Prentiss, 2020-Ohio-2825, 154 N.E.3d 550, 

¶ 17 (8th Dist.).

{¶ 31} “We acknowledge that a dismissal with prejudice is a harsh sanction for a 

failure to appear.” Tonti v. Hayes, 6th Dist. Lucas No. L-05-1202, 2006-Ohio-2229, ¶ 26, 
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citing Pembaur at 92. Further, “[t]he courts of Ohio have long recognized that the 

interests of justice are better served when courts address the merits of claims and 

defenses at issue rather than using procedural devices to resolve pending cases.” Foley 

v. Nussbaum, 2d Dist. Montgomery No. 24572, 2011-Ohio-6701, ¶ 20, citing Moore v. 

Emmanuel Family Training Ctr., Inc., 18 Ohio St.3d 64, 70, 479 N.E.2d 879 (1985). But

“[w]here a party's conduct is ‘negligent, irresponsible, contumacious or dilatory,’ it may 

provide grounds for a dismissal with prejudice for a failure to prosecute or to obey a court 

order.” Foley at ¶ 20, quoting Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio 

St.3d 621, 632, 605 N.E.2d 936 (1992).

{¶ 32} Saunders and her counsel had at least three warnings that failure to appear 

at the trial may result in the case being dismissed pursuant to Civ.R. 41(B)(1). Despite 

this, Saunders and her counsel voluntarily chose to leave the jury trial early on the second 

day of the trial and failed to show up for the third day of trial. There is no doubt that 

Attorney Carter had real-life, important events going on outside the courthouse those two 

days. The impact of the loss of a sibling cannot be overestimated. But Carter and his 

client also had real-life, important events going on inside the courthouse during those two 

days. Neither Saunders nor her counsel had the trial court’s permission to leave and 

abandon the trial. And neither Saunders nor her counsel requested a continuance of the 

trial, either orally or in writing. Further, there was little real-time information in the record 

as to what exactly was transpiring with Carter’s sister in the week before and the week of 

trial. While Carter provides additional information in the appellate briefs, this information 

does not appear to have been in the record for the trial court to consider when it was 
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determining whether to dismiss Saunders’ action with prejudice.

{¶ 33} The situation before us in this case is both tragic and unfortunate. If 

Saunders or her counsel had requested a continuance of the trial either before the trial 

began or before they left without permission on the second day of trial, and the trial court 

had overruled the request, then there would be a more difficult decision to make as to 

whether the trial court abused its discretion in dismissing the case. But that did not 

happen. Rather, the trial court was faced with a party and her counsel who appeared to 

be voluntarily abandoning a trial without the court’s permission and with very little 

explanation given other than that the attorney’s sister was in the ICU. No explanation 

was given as to whether Carter would be able to proceed with the trial within a reasonable 

time or as to whether well-informed, substitute counsel would be available to proceed, as 

required in the warnings contained in the trial court’s final pretrial orders. Given the 

specific facts in the record before us, we cannot conclude that the trial court abused its 

discretion in dismissing the case with prejudice. 

{¶ 34} Saunders also contends that the trial court erred by ordering her to pay court 

costs. But Saunders concedes that if we do not reverse the trial court’s decision to 

dismiss her action with prejudice, then the trial court did not err in assessing her court

costs. Appellant’s Reply Brief, p. 10. Therefore, the sole assignment of error is 

overruled.

III. Conclusion

{¶ 35} Having overruled the sole assignment of error, the judgment of the trial court 
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is affirmed.

. . . . . . . . . . . . .

WELBAUM, P.J. and EPLEY, J., concur.