Logsdon v. Nichols

[This opinion has been published in Ohio Official Reports at 

72 Ohio St.3d 124

.]




              LOGSDON ET AL., APPELLANTS, v. NICHOLS, APPELLEE.
                     [Cite as Logsdon v. Nichols, 

1995-Ohio-225

.]
Courts—Jurisdiction when plaintiff dismisses complaint—Vacation of dismissal—
        Civ.R. 41.
        (No. 94-363—Submitted March 22, 1995—Decided May 3, 1995.)
     APPEAL from the Court of Appeals for Franklin County, No. 93AP-1025.
                                  __________________
        Russell D. Finneran and Robert C. Paxton II, for appellants.
        Enz, Jones & LeGrand, Grey W. Jones and Robert F. Gage, for appellee.
                                  __________________
        {¶ 1} 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 SWEENEY, JJ., concur.
        WRIGHT, PFEIFER and COOK, JJ., concur in part and dissent in part.
                                  __________________
                                       APPENDIX


        PEGGY BRYANT, Presiding Judge.
        {¶ 2} 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.
        {¶ 3} 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
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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.
        {¶ 4} 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.
        {¶ 5} 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."
        {¶ 6} The entry is signed by the trial judge, and bears two time stamps, 2:32
p.m. and 2:53 p.m.
        {¶ 7} 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."




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                                 January Term, 1995




        {¶ 8} 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.
        {¶ 9} 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.
        {¶ 10} 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 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)."
        {¶ 11} Plaintiffs' first and fourth assignments of error are interrelated and
will be addressed jointly.
        {¶ 12} 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




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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
         {¶ 13} 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.
         {¶ 14} 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),

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

.
         {¶ 15} 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


1. Plaintiffs herein had previously dismissed their claims against defendant pursuant to Civ.R.
41(A)(1)(a). In order to preserve their rights to refile their claims, they were required to obtain
dismissal of the present case by order of the court under Civ.R. 41(A)(2). While the trial court's
entry suggests that the "Dismissal Without Prejudice" was represented to be a Civ.R. 41(A)(1)
dismissal, such a dismissal would not require action by the court. Plaintiffs' need to obtain the trial
court's signature in order to dismiss the case was a signal to the trial court that the action was not
being dismissed pursuant to Civ.R. 41(A)(1), but under Civ.R. 41(A)(2).




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                                January Term, 1995




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.
       {¶ 16} 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. Farmer's 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.
       {¶ 17} 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




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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 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.

       {¶ 18} Similarly, State ex rel. Hancock v. Rees (Nov. 24, 1992), Franklin
App. No. 92AP-576, unreported, 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.
       {¶ 19} 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.
       {¶ 20} Given the foregoing, plaintiffs' first and fourth assignments of error
are overruled.




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                                  January Term, 1995




        {¶ 21} 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).
        {¶ 22} 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.
        {¶ 23} 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.
        {¶ 24} 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.




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        {¶ 25} 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.
                                                                    Judgment reversed
                                                                  and cause remanded.
        TYACK and DESHLER, JJ., concur.
                                __________________
        COOK, J., concurring in part and dissenting in part.
        {¶ 26} 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.
        {¶ 27} 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.
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. Heslop, supra; Wayne Riggs Constr., Inc.
v. Botnick Bldg. Co. (Apr. 20, 1988), Summit App. No. 13277, unreported.




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                                January Term, 1995




Furthermore, our judicial system is based on the orderly resolution of cases within
an established time frame. Heslop, supra. When the time frame set by a court is
ignored, the court has the authority to dismiss the case. Id.; Lloyd's Rentals v. Gault
(Sept. 23, 1992), Summit App. No. 15525, unreported.
       {¶ 28} For the foregoing reasons, I dissent in part.
       WRIGHT and PFEIFER, JJ., concur in the foregoing opinion.
                               __________________




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