State, Ex Rel. Avellone v. Board of County Commissioners

Ohio Court of Appeals

State, Ex Rel. Avellone v. Board of County Commissioners

574 N.E.2d 577, 60 Ohio App. 3d 127, 1989 Ohio App. LEXIS 4252

CourtOhio Court of Appeals

DecidedNovember 20, 1989

Docket12-231

StatusPublished

Cited by3 cases

This text of 574 N.E.2d 577 (State, Ex Rel. Avellone v. Board of County Commissioners) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State, Ex Rel. Avellone v. Board of County Commissioners, 574 N.E.2d 577, 60 Ohio App. 3d 127, 1989 Ohio App. LEXIS 4252 (Ohio Ct. App. 1989).

Pincite

Opinion

Per Curiam.

The case sub judice is presently before this court upon remand of the Ohio Supreme Court. State, ex rel. Avellone, v. Bd. of Commrs. of Lake Cty. (1989), 45 Ohio St. 3d 58, 543 N.E. 2d 478. Relator, Ross D. Avellone, the domestic relations judge of the Court of Common Pleas of Lake County, has filed a motion before this court which purports to give notice of dismissal of the subject action in mandamus, or, in the alternative, requests this court to dismiss the case pursuant to Civ. R. 41(A) or (B).

Relator’s motion for dismissal of the foregoing cause on remand, as it may pertain to the issues dealing with relator’s request for computerization of the Lake County Common Pleas Court, Domestic Relations Division, and for $175,000 for the computerization of the Lake County Bureau of Support, is overruled. The relief requested by the relator, in the original mandamus action in this court, was denied, and the decision was affirmed by the Ohio Supreme Court, for reasons expressed in that court’s opinion. Relator cannot dismiss an action upon which a final judgment has been rendered and which has been affirmed on appeal.

Relator further moves this court to dismiss the remaining issue, remanded to this court by the Ohio Supreme Court, which deals with permitting expert testimony and a report comparing the average cost of terminating cases as it bears on relator’s request for $116,871 for personnel and services. *128 Relator states that this motion is made pursuant to Civ. R. 41(A) or 41(B). Civ. R. 41(A) allows the voluntary dismissal of an action by the plaintiff at any time before the commencement of trial. There can be no debate that relator’s action has already gone to trial and appeal. Consequently, relator’s motion to dismiss, under Civ. R. 41(A), is overruled.

Civ. R. 41(B) allows the trial court to dismiss an action. Civ. R. 41(B)(3) states that a dismissal under this subdivision operates as an adjudication upon the merits, unless the trial court states otherwise. Relator urges that this court dismiss this action (or its pertinent parts) without prejudice and respondents offer no significant objection to relator’s request. Therefore, relator’s motion, as it applies to the sole issue before this court on remand, is granted.

Therefore, it is ordered that the remaining issue in this case is dismissed without prejudice.

Judgment accordingly.

Christley, P.J., Mahoney and Ford, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

The case sub judice is presently before this court upon remand of the Ohio Supreme Court. State, ex rel. Avellone, v. Bd. of Commrs. of Lake Cty. (1989), 45 Ohio St. 3d 58, 543 N.E. 2d 478. Relator, Ross D. Avellone, the domestic relations judge of the Court of Common Pleas of Lake County, has filed a motion before this court which purports to give notice of dismissal of the subject action in mandamus, or, in the alternative, requests this court to dismiss the case pursuant to Civ. R. 41(A) or (B).

Relator’s motion for dismissal of the foregoing cause on remand, as it may pertain to the issues dealing with relator’s request for computerization of the Lake County Common Pleas Court, Domestic Relations Division, and for $175,000 for the computerization of the Lake County Bureau of Support, is overruled. The relief requested by the relator, in the original mandamus action in this court, was denied, and the decision was affirmed by the Ohio Supreme Court, for reasons expressed in that court’s opinion. Relator cannot dismiss an action upon which a final judgment has been rendered and which has been affirmed on appeal.

Relator further moves this court to dismiss the remaining issue, remanded to this court by the Ohio Supreme Court, which deals with permitting expert testimony and a report comparing the average cost of terminating cases as it bears on relator’s request for $116,871 for personnel and services. *128 Relator states that this motion is made pursuant to Civ. R. 41(A) or 41(B). Civ. R. 41(A) allows the voluntary dismissal of an action by the plaintiff at any time before the commencement of trial. There can be no debate that relator’s action has already gone to trial and appeal. Consequently, relator’s motion to dismiss, under Civ. R. 41(A), is overruled.

Civ. R. 41(B) allows the trial court to dismiss an action. Civ. R. 41(B)(3) states that a dismissal under this subdivision operates as an adjudication upon the merits, unless the trial court states otherwise. Relator urges that this court dismiss this action (or its pertinent parts) without prejudice and respondents offer no significant objection to relator’s request. Therefore, relator’s motion, as it applies to the sole issue before this court on remand, is granted.

Therefore, it is ordered that the remaining issue in this case is dismissed without prejudice.

Judgment accordingly.

Christley, P.J., Mahoney and Ford, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

574 N.E.2d 577, 60 Ohio App. 3d 127, 1989 Ohio App. LEXIS 4252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-avellone-v-board-of-county-commissioners-ohioctapp-1989.

Opinion

Related

Cite This Page — Counsel Stack