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Daugherty v. Dutiel

Court of Appeals of Ohio, Fifth District

June 18, 2003

CLANCY L. DAUGHERTY AND MARILYN RUSSELL Plaintiffs-Appellants
v.
DONALD DUTIEL Defendant-Appellee

Appeal from the County Court, Case No.CVE0200242

For Plaintiffs-Appellants DEBORAH GILBERT.

For Appellee MARK J. HOWDYSHELL

Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

Farmer, J.

{¶1} On April 12, 2002, appellants, Clancy Daugherty and Marilyn Russell, filed a complaint against appellee, Donald Dutiel, their former landlord, for damages as a result of a failed land contract deal between the parties. Because appellee failed to answer, the trial court granted default judgment to appellants on the issue of liability. The parties agreed to mediate the damages issue. On November 6, 2002, the trial court dismissed the complaint based upon the fact that appellants did not appear for mediation.

{¶2} On November 25, 2002, appellants filed a motion to vacate. By entry filed December 4, 2002, said motion was denied.

{¶3} Appellants filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:

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{¶4} "THE TRIAL COURT ERRED BY DISMISSING APPELLANTS' SUIT WITHOUT NOTIFICATION OR COMPLYING FIRST WITH RULE 41, THEREBY DEPRIVING APPELLANT OF DUE PROCESS AND VIOLATING CIVIL RULE 41."

I

{¶5} Appellants claim the trial court erred in dismissing their case without notice. We agree.

{¶6} Civ.R. 41(B) governs involuntary dismissals and states "[w]here the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim."

{ΒΆ7} In this case, the trial court dismissed appellants' complaint for failure to appear for mediation "on the time given by the court." See, ...


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