State, Ex Rel. Avellone v. Board of County Commissioners, 574 N.E.2d 577

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

574 N.E.2d 577 | Ohio Ct. App. | 1989

The case sub judice is presently before this court upon remand of the Ohio Supreme Court. State, ex rel. Avellone, v. Bd. ofCommrs. 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 sub-division 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.