PROCEDURE/RULES – CIV.R. 41(B)(1) – CIV.R. 60(B): The trial court is required to provide notice to plaintiff or plaintiff's counsel before dismissing, on its own motion, plaintiff's case under Civ.R. 41(B)(1) for failure to prosecute. Where the trial court did not notify plaintiff or plaintiff's counsel before dismissing, on its own motion, plaintiff's case under Civ.R. 41(B)(1) for failure to prosecute, the court erred in denying plaintiff's Civ.R. 60(B) motion to vacate the judgment of dismissal. (Svoboda v. City of Brunswick, 6 Ohio St.3d 348, 453 N.E.2d 648 (1983), followed.)
.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ANTHONY MCCLAIN, : APPEAL NO. C-180082
TRIAL NO. A-1604385
Plaintiff-Appellant, :
O P I N I O N.
vs. :
STATE OF OHIO, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: April 10, 2019
Koenig & Long, LLC, and James D. Owen, for Plaintiff-Appellant,
Dave Yost, Ohio Attorney General, and Byron D. Turner, Assistant Attorney
General, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Plaintiff-appellant Anthony McClain appeals the trial court’s judgment
denying his motion to vacate. For the reasons stated below, we reverse the trial
court’s judgment.
{¶2} McClain sued the state of Ohio in 2008. He voluntarily dismissed his
complaint in 2010, and refiled it in 2011 in Franklin County, Ohio. In August 2016,
the venue of the case was transferred to Hamilton County, Ohio. The record
demonstrates that in September 2016, McClain’s counsel acknowledged the transfer
and completed a notification form indicating his current address. In November
2016, the trial court dismissed McClain’s case, on its own motion, under Civ.R.
41(B)(1) for failure to prosecute. After learning of the dismissal, McClain moved to
vacate the court’s judgment of dismissal under Civ.R. 60(B). The trial court
overruled that motion, and McClain appealed.
{¶3} In his single assignment of error, McClain argues that the trial court
erred by overruling his motion to vacate. We are constrained to agree under the
authority of Svoboda v. City of Brunswick,
(1983).
In Svoboda, the Ohio Supreme Court held that because the trial court lacked
authority to dismiss the underlying action under Civ.R. 41(B)(1), it had erred by
denying Svoboda’s Civ.R. 60(B) motion to vacate the judgment of dismissal. The
Svoboda court noted that when a court proceeds, on its own motion, under Civ.R.
41(B)(1) to dismiss a case for failure to prosecute, it can do so only “after notice to the
plaintiff’s counsel or to plaintiff.” No such notice was provided by the trial court in
Svoboda.
.
{¶4} Similarly, there is nothing in our record demonstrating that McClain
or his counsel was given notice, prior to dismissal, that McClain’s action would be
2
OHIO FIRST DISTRICT COURT OF APPEALS
dismissed for failure to prosecute. Therefore, because the notice required under
Civ.R. 41(B)(1) was not given to McClain or his counsel, the court did not have the
authority to dismiss McClain’s lawsuit. Because the trial court lacked authority to
dismiss the lawsuit, it erred in overruling McClain’s motion to vacate the judgment of
dismissal. See
Svoboda at 351
. The single assignment of error is sustained.
{¶5} Accordingly, the judgment of the trial court is reversed, and the cause
is remanded for proceedings consistent with this opinion and the law.
Judgment reversed and cause remanded.
MOCK, P.J., ZAYAS and MYERS, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
3
