Lead Opinion
The basic issue presented is whether the trial court’s dismissal of appellant’s cause of action for failure to attend a pre-trial conference in аccordance with a local court rule was proper. For the reаsons that follow, this court holds that the dismissal herein was improper because the trial court did not give appellant notice prior to the dismissal of his case as required by Civ. R. 41(B)(1).
Local Rule VII4(h) of the Court of Common Pleas of Scioto County, the rule upon which the trial court based the dismissal, provides as follows:
“Failure of cоunsel to appear at the conference to comply with these rules, shall be deemed sufficient cause for dismissal, pursuant to Rule fl-B of the Ohio Rule of Civil Procedures [sic]; and, in addition, in the absence of counsel or any parties, the court may allow amendments, decide all preliminary matters and make such findings, orders, judgments or decrees as the court may dеem proper.” (Emphasis added.)
Civ. R. 41(B)(1), which is notedly incorporated within the locаl rule, governs the dismissal with prejudice of a cause of action:
“Where the рlaintiff fails to prosecute, or comply with these rules or any court order, thе court upon motion of a defendant or on its own motion may, after notice to the plaintiffs counsel, dismiss an action or claim.” (Emphasis added.)
Under these rules, thеre is no doubt that a trial court may, sua sponte, dismiss an action for non-appearanсe at a pre-trial conference. Cf. Pembaur v. Leis (1982),
This court’s holding today, that before a triаl court may dismiss a case with prejudice for failure to appear at a pre-trial conference in accordance with a local court rule, notice of the dismissal must be given to plaintiff’s counsel pursuant to the provisions of Civ. R. 41(B)(1), is in accordance with the spirit of Civ. R. 41(B)(1). As noted in McCormac, Ohio Civil Rules Practice (1983 Cum. Supp.) 118, Section 13.07, the purpose of this notice requirement is to give a рarty an opportunity to obey the order.
Not only does this holding embrace the spirit of Civ. R. 41(B)(1), but it also reflects a basic tenet of Ohio jurisprudence that cases should be decided on their merits. Seе, e.g., Maritime Manufacturers, Inc. v. Hi-Skipper Marina (1982),
In the instant case, appellant was proceeding pro se at the preliminary stage of the proceedings. Accordingly, notice of the intended dismissal was required to be sent to appellant himself pursuant to Civ. R. 41(B)(1). It is undisputed that the court failed to give appellant notice of its intent to dismiss the casе. Resultantly, appellant had no opportunity to comply with the order, cоrrect the defect, or proceed before dismissal, as the rule so cоntemplates.
Since the dismissal entered in this case was in violation of the prоvisions of Civ. R. 41(B)(1), the dismissal is hereby reversed and the cause is remanded to the trial cоurt for further proceedings.
Judgment reversed and cause remanded.
Notes
More fully, McCormac states as follows:
“The correct procedure on the part of the court would be to give immediate notice to plaintiff’s counsel of his intention to dismiss with prejudice for failure to obey the order of court and to then so dismiss if the order was still not obeyed.”
This decision is specifically limited to the propriety of the dismissal with respect to Civ. R. 41. This court expresses no opinion as to the merits of any other claim or defense which may be raised upon remand.
Concurrence Opinion
concurring. Thе excellent analysis of Civ. R. 41 by Justice William B. Brown causes a just result. It also compliеs with the mandate of Civ. R. 1(B) that “[t]hese rules shall be construed and applied to