Lambert v. Anchor Packing Co.Lambert v. Anchor Packing Co.
- Reporters:
- ,
- Before:
- Per Curiam.
{¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment in favor of Anchor Packing Co. and several other entities2, defendants below and appellees herein.
{¶ 2} Randy Lambert and forty-one other individuals3, plaintiffs below and appellants herein, raise the following assignments of error for review and determination:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFFS-APPELLANTS ARE NOT EXPRESSLY RESERVED THE RIGHT TO REINSTATE THEIR CASES SHOULD THEY MAKE A PRIMA-FACIE SHOWING AND MEET THE NEW MINIMUM IMPAIRMENT CRITERIA UNDER
R.C. 2307.93(C) .”SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN NOT FINDING THAT PLAINTIFFS-APPELLANTS[‘] STATUTE OF LIMITATIONS IS TOLLED UNDER
R.C. 2307.94(A) .”THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFFS-APPELLANTS[‘] CLAIMS ARE NOT SUBJECT TO ADMINISTRATIVE DISMISSAL UNDER
R.C. 2307.92 .”FOURTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN NOT EXPRESSLY MAINTAINING JURISDICTION OVER PLAINTIFFS-APPELLANTS CASES AFTER THE CLAIMS HAD BEEN ADMINISTRATIVELY DISMISSED UNDER
R.C. 2307.93(C) .”
{¶ 3} On May 5, 2004, appellants filed an asbestos-related complaint against appellees and alleged various asbestos-related injuries. Subsequently, they filed a request for additional time to set forth a prima facie case under
{¶ 4} On December 2, 2005, the trial court dismissed appellants’ case with prejudice. The court found that they failed to set forth a prima facie case, as required by
{¶ 5} Because appellants’ four assignments of error challenge the trial court‘s decision to dismiss their case, we address them together. In their assignments of error, appellants assert that the trial court erred by: (1) determining that they are not entitled to reinstate their case in the future if they become able to set forth a prima facie claim and meet the
{¶ 6}
The court shall administratively dismiss the plaintiff‘s claim without prejudice upon a finding of failure to make the prima-facie showing required by division (B), (C), or (D) of section
2307.92 of the Revised Code . The court shall maintain its jurisdiction over any case that is administratively dismissed under this division. Any plaintiff whose case has been administratively dismissed under this division may move to reinstate the plaintiff‘s case if the plaintiff makes a prima-facie showing that meets the minimum requirements specified in division (B), (C), or (D) of section2307.92 of the Revised Code .
{¶ 7} In the case at bar, we agree with appellants that the trial court‘s dismissal with prejudice violates the
{¶ 8} Appellees’ attempt to defend the trial court‘s action under
{¶ 9} In the case sub judice, appellants did not fail to prosecute their case, but rather admitted that they could not produce the evidence necessary to comply with the statute. The statute contemplates this scenario. As we note above, the statute provides that a court “shall” administratively dismiss the action, not dismiss the action with prejudice. Therefore, in the case sub judice, we believe that the trial court erroneously dismissed the case with prejudice, and appellees’ reliance upon
{¶ 10} Accordingly, we hereby sustain appellants’ first, third, and fourth assignments of error. Our disposition of appellants’ first, third, and fourth assignments of error renders their second assignment of error moot and we will not address it. See.
JUDGMENT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
JUDGMENT ENTRY
It is ordered that the judgment be reversed and remanded for further proceedings consistent with this opinion. Appellants shall recover of appellees costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to
APPENDIX
Counsel for Beazer East, Inc. and Ingersoll-Rand Company: Kevin C. Alexandersen, John A. Valenti, and Colleen A. Mountcastle, Sixth Floor-Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115
Counsel for General Electric Company and CBS Corporation: Reginald S. Kramer, 195 South Main Street, Suite 300, Akron, Ohio 44308-1314
Counsel for A.W. Chesterton Company, Joseph J. Morford, John P. Patterson, and Matthew M. Daiker, 925 Euclid Avenue, 1150 Huntington Building, Cleveland, Ohio 44115
Counsel for The BOC Group, Inc. fka Airco, Inc., Hobart Brothers Company and Lincoln Electric Company: Henry E. Billingsley, II, Carter E. Strang, Rachel McQuade, and Halle M. Hebert, 1150 Huntington Building, 925 Euclid Avenue, Cleveland, Ohio 44115-1414
Counsel for Owens-Illinois, Inc.: Rebecca C. Sechrist, One SeaGate, Suite 650, Toledo, Ohio 43604
Counsel for John Crane, Inc.: David L. Day, 380 South Fifth Street, Suite 3, Columbus, Ohio 43215
Counsel for CSR Ltd.: Douglas N. Barr and Lorraine Debose, 1400 Fifth Third Center, Cleveland, Ohio 44114-2652
Counsel for Garlock Sealing Technologies, LLC and Riley Stoker Corporation: Matthew C. O‘Connell and Douglas R. Simek, 3600 Erieview Tower, 1301 East 9th Street, Cleveland, Ohio 44114
Counsel for Honeywell International: Sharon J. Zealey and William M. Huse, 201 East Fifth Street, Suite 1700, Cincinnati, Ohio 45202
Counsel for Mobil Corporation: Susan Squire Box and Brad A. Rimmel, 222 South Main Street, Akron, Ohio 44308
Counsel for International Minerals and Chemical Corporation: Thomas L. Eagen, Jr. and Christine Carey Steele, 2349 Victory Parkway, Cincinnati, Ohio 45206
Counsel for Amchem Products, Inc., Certainteed Corporation, Foseco, Inc., H.B. Fuller Co., Industrial Holdings Corporation, Union Carbide Corporation, and 3M Company: Richard D. Schuster, Nina I. Webb-Lawton, and Anthony L. Osterlund, 52 East Gay Street, P.O. Box 1008, Columbus, Ohio 43216-1008