APPEAL from the Court of Appeals for Franklin County, No. 93AP-1025.
The judgment is affirmed for the reasons stated by the court of appeals in its opinion rendered on December 16, 1993, which we adopt and attach as an appendix to this entry.
MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
WRIGHT, PFEIFER and COOK, JJ., concur in part and dissent in part.
APPENDIX
PEGGY BRYANT, Presiding Judge.
Plaintiffs-appellants, Kathleen Logsdon and James P. Logsdon,
appeal from a judgment of the Franklin County Court of Common
Pleas dismissing their complaint with prejudice under Civ.R.
41(B) for failure to prosecute.
Plaintiffs’ complaint, refiled after previous dismissals,
details the prior history of plaintiffs’ claims by alleging that
the action was originally filed against defendant-appellee, Julia
Z. Nichols, on February 19, 1986; however, “in the face of
adverse orders” an entry of dismissal pursuant to Civ.R. 41(B)(1)
and (3) was filed with the clerk of courts on April 28, 1989. The
action was refiled on April 20, 1990, but was dismissed pursuant
to Civ.R. 41(A)(1)(a) on May 16, 1991.
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On May 15, 1992, plaintiffs filed the present complaint,
alleging that on or about February 22, 1984, defendant “wantonly
or recklessly, or negligently” drove an automobile into the rear
of an automobile owned and operated by plaintiff, Kathleen
Logsdon. Plaintiff, James P. Logsdon, alleged that he incurred
medical expense and the loss of services and consortium of
Kathleen Logsdon as a result of defendant’s actions.
Following defendant’s answer and a determination of defendant’s
motion for costs under Civ.R. 41(B), the case was scheduled for
trial for May 25, 1993. On May 21, 1993, an entry was filed
entitled: “Dismissal Without Prejudice,” which stated:
“At Plaintiffs’ request, * * * Plaintiffs’ complaint is hereby
voluntarily dismissed without prejudice pursuant to Ohio Civil
Rule 41(A)(2) other than upon the merits and without prejudice to
Plaintiffs’ right to refile their Complaint under the Ohio
Savings Statute and the Ohio Rules of Civil Procedure.”
The entry is signed by the trial judge, and bears two time
stamps, 2:32 p.m. and 2:53 p.m.
On the same day a second entry was filed, signed by the trial
judge and bearing a time stamp of 4:41 p.m. Pursuant to the
entry, the trial court sua sponte withdrew its approval of the
“Dismissal Without Prejudice,” stating:
“Since the [prior] entry is pursuant to Civ.R. 41(A)(2), a
motion is required to be made to the Court with notice to
opposing counsel and an opportunity for opposing counsel to
respond. This was not done in this case; therefore, the entry was
signed ex parte and without notice.
“Given the procedural incorrectness of said entry, the
`Dismissal Without Prejudice’ entry filed May 21, 1993 at 2:53
p.m. is hereby VACATED AND HELD FOR NAUGHT.”
Pursuant to a status conference on May 24, 1993, the trial date
of May 25 was vacated and rescheduled for June 21, 1993. The
trial court specifically noted that no further continuances would
be allowed.
On June 22, 1993, an entry of dismissal was filed, noting that
although counsel for defendant was ready to proceed with trial on
June 21, neither plaintiffs nor counsel for plaintiffs appeared;
that plaintiffs had failed to prosecute the action, and thus the
matter was dismissed with prejudice.
Plaintiffs appeal therefrom, assigning the following errors:
“I. When a trial court unconditionally dismisses a case under
Civil Rule 41(A), the court patently and unambiguously lacks any
further jurisdiction over the matter and may not take further
action in the case.
“II. The dismissal of a case with prejudice is a harsh remedy
and, before such a dismissal is proper, a court must first
expressly and unambiguously give notice
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of its intention to dismiss with prejudice giving the party one
last chance to obey the court’s order.
“III. A trial court may not announce its decisions and enter
judgment by a single writing; the Civil Rules require that the
decision be announced to the parties first and then a judgment
entered pursuant thereto.
“IV. Once a trial court dismisses an action without prejudice,
it has no authority to assume further jurisdiction in the action
and may not reinstate the matter under the provisions of Civ.R.
60(A).”
Plaintiffs’ first and fourth assignments of error are
interrelated and will be addressed jointly.
Civ.R. 41 governs the dismissal of actions, with Civ.R. 41(A)
pertaining to voluntary dismissals, while Civ.R. 41(B) applies to
involuntary dismissals. Civ.R. 41(A) provides two bases for
voluntary dismissal: by plaintiff under Civ.R. 41(A)(1) and by
order of the court under Civ.R. 41(A)(2). Under Civ.R. 41(A)(1),
a plaintiff may dismiss an action without order of the court by
filing a notice of dismissal at any time before commencement of
trial unless a counterclaim which cannot remain pending for
independent adjudication by the court has been served by the
defendant. However, if a plaintiff who has once dismissed an
action based on or including the same claim again dismisses under
Civ.R. 41(A)(1)(a), the notice of dismissal operates as an
adjudication upon the merits and bars refiling of the claim.
Unlike Civ.R. 41(A)(1), Civ.R. 41(A)(2) provides that an action
shall not be dismissed at plaintiff’s instance except upon order
of the court and upon such terms and conditions as the court
deems proper.[1]
The issue raised under plaintiffs’ first and fourth assignments
of error is the jurisdiction of the trial court sua sponte to
vacate the “Dismissal Without Prejudice” and reschedule this
matter for trial.
Once plaintiffs file a notice of dismissal, no action remains
pending before the court, and generally the court is without
jurisdiction to modify the dismissal. State ex rel. Hunt v.
Thompson (1992), 63 Ohio St.3d 182, 586 N.E.2d 107. Even so,
there is authority that court action subsequent to dismissal may
fall within the court’s continuing jurisdiction. Cooter Gell v.
Hartmarx Corp. (1990),
Page 127
496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359; see, also, Sturm v. Sturm
(1992), 63 Ohio St.3d 671, 590 N.E.2d 1214.
The present case involves a dismissal under Civ.R. 41(A)(2).
Given the need for trial court action in order to effect the
dismissal under Civ.R. 41(A)(2), the opposing party to the action
is entitled to be heard on the motion. Failure to afford that
opportunity can be reversible error. See Thompson, supra.
Plaintiffs presented their “Dismissal Without Prejudice” to the
trial court ex parte; the trial court granted it ex parte.
Apparently recognizing the error in so doing, the trial court, on
its own, corrected that which would have been subject to reversal
on appeal. To accept plaintiffs’ contentions would mean that the
trial court was without jurisdiction, upon discerning reversible
error in the proceedings, to correct the error; that instead it
had to allow the matter to be appealed, reversed, and remanded to
accomplish that which the trial court perceives is necessary.
Indeed, on a prior occasion, this court rejected similar
contentions. In Andy Estates Dev. Corp. v. Bridal (1991),
68 Ohio App.3d 455, 588 N.E.2d 978, we
determined that the trial court had jurisdiction to consider a Civ.R. 60(B)
motion filed by a plaintiff who mistakenly filed a voluntary dismissal
without prejudice pursuant to Civ.R. 41(A)(1)(a), despite an earlier
dismissal under that rule. Therein we noted the Sixth Circuit’s
decision in Hinsdale v. Farmers Natl. Bank Trust Co. (C.A.6,
1987), 823 F.2d 993, finding that a party’s unconditional
dismissal with prejudice terminated the trial court’s
jurisdiction except “* * * for the limited purpose of reopening
and setting aside the judgment of dismissal within the scope
allowed by Rule 60(b).” Id. at 995-996. Thus, the trial court
retains, at least in some instances, the jurisdiction to deal
with a dismissal entry improperly filed. Given the trial court’s
reason for vacating the “Dismissal Without Prejudice,” as well as
the fact that the dismissal occurred not by plaintiffs’ action
under Civ.R. 41(A)(1), but the court’s action under Civ.R.
41(A)(2), the trial court retained the jurisdiction to sua
sponte vacate its erroneously entered dismissal.
Despite the foregoing, plaintiffs rely heavily on State ex rel.
Rice v. McGrath (1991), 62 Ohio St.3d 70, 577 N.E.2d 1100, to
support their contentions that the trial court “patently and
unambiguously” lacked jurisdiction to consider vacating the
“Dismissal Without Prejudice.” McGrath, however, is
distinguishable. The trial court therein dismissed a complaint
based on res judicata; the court of appeals affirmed. Thereafter,
the trial court found Rice in contempt and directed Rice to take
corrective action. Rice filed a complaint for a writ of
prohibition directing the court to “prevent McGrath from taking
further action other than vacating the contempt order.” While the
court of appeals found an adequate remedy at law by way of
appeal, the Supreme Court disagreed, finding that the
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trial judge lacked jurisdiction once he unconditionally dismissed
the underlying case. Unlike McGrath, the trial judge herein did
not attempt to take further action on the merits of the dismissed
case, but instead corrected reversible error by vacating the
dismissal entry. See Andy Estates, supra.
Similarly, State ex rel. Hancock v. Reece (Nov. 24, 1992),
Franklin App. No. 92AP-576, unreported, 1992 WL 393121, is
distinguishable. In that case, the trial judge had dismissed
plaintiff’s complaint without prejudice pursuant to Civ.R.
41(B)(1) and (3), due to plaintiff’s failure to respond to
pending discovery. Thereafter, defendant asked that the entries
be set aside and that new dismissal entries be journalized
reflecting dismissals with prejudice. A new trial judge had
replaced the original trial judge, and the new judge partially
ruled on the motions. We granted a writ of prohibition
prohibiting the trial judge from ruling on the subsequent motion
after the case had been dismissed. In that instance, however, the
trial court was attempting to amend, on defendant’s prompting, an
entry in an action previously dismissed against plaintiffs. By
contrast, the trial judge herein, within hours, vacated the prior
dismissal entry, not changed it, due to reversible error.
Finally, having vacated the “Dismissal Without Prejudice,” the
trial court properly could consider the merits of plaintiffs’
motion. Had the trial court been inclined to grant the motion,
the trial court would have been required to offer defendant the
opportunity to be heard. However, having determined that
plaintiffs’ request for a dismissal under Civ.R. 41(A)(2) lacked
merit, the trial court did not err in overruling the motion
without defendant’s participation.
Given the foregoing, plaintiffs’ first and fourth assignments
of error are overruled.
Plaintiffs’ second assignment of error challenges the trial
court’s dismissal of their case with prejudice; plaintiffs assert
that the trial court first must give notice of its intention to
dismiss with prejudice under Civ.R. 41(B).
Generally, notice is a prerequisite to dismissal for failure to
prosecute under Civ.R. 41(B)(1). Hence, “[i]t is error for the
trial court to dismiss plaintiff’s case without notice for
failure to prosecute when plaintiff and his counsel fail to
appear for trial on the assigned trial date * * *.” McCormac,
Ohio Civil Rules Practice (2 Ed. 1992) 356-357, Section 13.07.
The purpose of notice is to “provide the party in default an
opportunity to explain the default or to correct it, or to
explain why the case should not be dismissed with prejudice.”
Id. at 357; Metcalf v. Ohio State Univ. Hosp. (1981), 2 Ohio App.3d 166,
2 OBR 182, 441 N.E.2d 299. Notice allows the
dismissed party to explain the circumstances causing his or her
nonappearance. McCormac, supra, at 357.
Page 129
The record discloses no notice to plaintiffs’ counsel or to
plaintiffs that the action was subject to dismissal with
prejudice. Accordingly, the trial court erred in failing to
provide prior notice before dismissing plaintiffs’ action with
prejudice. Plaintiffs’ second assignment of error is sustained.
Plaintiffs’ third assignment of error asserts that the trial
court erred in combining its decision and judgment into a single
document; and that the Civil Rules require that a decision first
be announced, and then a separate judgment entry be filed.
Plaintiffs contend that the error is prejudicial because the
trial court’s failure to announce its decision separately from
its entry precluded plaintiffs from pointing out the trial
court’s failure to provide the required notice under Civ.R.
41(B)(1) or to address the jurisdictional argument raised in this
appeal. Given our disposition of the other assignments of error,
any error in the trial court’s failing to enter decision and
judgment by separate documents is not prejudicial. Plaintiffs’
third assignment of error is overruled.
Having overruled plaintiffs’ first, third and fourth
assignments of error, but having sustained their second
assignment of error, we reverse the judgment of the trial court
and remand this matter to the trial court for the limited purpose
of providing plaintiffs with notice of the court’s intention to
dismiss plaintiffs’ action with prejudice under Civ.R. 41(B),
with the resulting opportunity for plaintiffs to explain their
absence from trial and to address the dismissal with prejudice;
the trial court may then determine whether plaintiffs have
provided any reasons which would make dismissal with prejudice
inappropriate. Accordingly, the matter is remanded to the trial
court for further proceedings herewith.
TYACK and DESHLER, JJ., concur.
COOK, J., concurring in part and dissenting in part.
This rear-end collision case has a shameful procedural history that spans more than nine years due to, in my view, plainly dilatory tactics by plaintiffs’ counsel.
I concur with the adoption of the court of appeals’ opinion except in one respect. I would find that the Civ.R. 41(B)(1) notice requirement is satisfied where, as here, plaintiffs’ counsel acknowledged notice of the trial date, but advised the court that he would not appear of his own volition. The notice required by Civ.R. 41(B)(1) need not be actual but may be implied when reasonable under the circumstances. Heard v. Sharp (1988), 50 Ohio App.3d 34, 35, 552 N.E.2d 665, 666; Heslop, Inc. v. Stoffer (Apr. 22, 1992), Summit App. No. 15258, unreported, 1992 WL 82660. Where, as in this case, a party has received notice that the case has been set for trial, the party has impliedly received notice that the case can be dismissed for lack of prosecution if the notice is disregarded.
For the foregoing reasons, I dissent in part.
WRIGHT and PFEIFER, JJ., concur in the foregoing opinion.