Mention v. Car-X

2011 Ohio 6383

• Court: Ohio Court of Appeals
• Decided: December 14, 2011
• Docket: C-110335
• Status: Published

Opinion

[Cite as Mention v. Car-X, 2011-Ohio-6383.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

CHARLES MENTION, : APPEAL NO. C-110335 TRIAL NO. 09CV-22296 Plaintiff-Appellant, :

vs. : O P I N I O N.

CAR-X, : Defendant-Appellee. :

Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 14, 2011

Eric D. Bender, for Plaintiff-Appellant.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

S YLVIA S IEVE H ENDON , Judge.

{¶1} Plaintiff-appellant Charles Mention filed a complaint against defendant-

appellee Car-X, alleging negligence, breach of contract, unjust enrichment, and violations of

the Ohio Consumer Sales Practices Act, R.C. 1345.01 et seq. The municipal court referred

the case to a magistrate who dismissed the complaint for failure to prosecute and entered

judgment for Car-X. Mention objected to the magistrate’s decision, asserting that he had

not received notice of the trial date or of the possibility of a dismissal. The trial court

overruled his objections. Mention now appeals.

{¶2} In a single assignment of error, Mention argues that the trial court erred by

dismissing his complaint for failure to prosecute without giving him notice as required by

Civ.R. 41. We agree.

{¶3} Under Civ.R. 41(B)(1), where a plaintiff fails to prosecute an action, the court

may, after notice to plaintiff’s counsel, dismiss the action. Under the rule, notice is a

prerequisite to dismissal for failure to prosecute. Logsdon v. Nichols (1995), 72 Ohio St.3d

124, 128, 647 N.E.2d 1361. The notice requirement allows a party in default the opportunity

to explain or correct a default before a dismissal. Id.; Penaranda v. DNJ Holdings, LLC, 1st

Dist. No. C-090739, 2010-Ohio-5848. Thus, before a trial court may dismiss a case for

failure to prosecute, the court must provide notice of its intent to do so to the plaintiff’s

counsel. Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 454 N.E.2d 951, syllabus; Logsdon,

supra, at 128; Penaranda, supra.

{¶4} The record discloses no notice to plaintiff’s counsel or to the plaintiff that the

action was subject to dismissal. Therefore, the trial court erred in dismissing the plaintiff’s

action.

{¶5} Because the dismissal entered in this case did not comply with the notice

provisions of Civ.R. 41(B)(1), we sustain the assignment of error, reverse the judgment of

2 OHIO FIRST DISTRICT COURT OF APPEALS

the trial court, and remand the cause to the trial court for further proceedings in accordance

with law.

Judgment reversed and cause remanded.

DINKELACKER, P.J., and CUNNINGHAM, J., concur.

Please Note: The court has recorded its own entry on the date of the release of this opinion.