[Cite as Mention v. Car-X, 2011-Ohio-6383.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CHARLES MENTION, : APPEAL NO. C-110335
TRIAL NO. 09CV-22296
Plaintiff-Appellant, :
vs. : O P I N I O N.
CAR-X, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: December 14, 2011
Eric D. Bender, for Plaintiff-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
S YLVIA S IEVE H ENDON , Judge.
{¶1} Plaintiff-appellant Charles Mention filed a complaint against defendant-
appellee Car-X, alleging negligence, breach of contract, unjust enrichment, and violations of
the Ohio Consumer Sales Practices Act, R.C. 1345.01 et seq. The municipal court referred
the case to a magistrate who dismissed the complaint for failure to prosecute and entered
judgment for Car-X. Mention objected to the magistrate’s decision, asserting that he had
not received notice of the trial date or of the possibility of a dismissal. The trial court
overruled his objections. Mention now appeals.
{¶2} In a single assignment of error, Mention argues that the trial court erred by
dismissing his complaint for failure to prosecute without giving him notice as required by
Civ.R. 41. We agree.
{¶3} Under Civ.R. 41(B)(1), where a plaintiff fails to prosecute an action, the court
may, after notice to plaintiff’s counsel, dismiss the action. Under the rule, notice is a
prerequisite to dismissal for failure to prosecute. Logsdon v. Nichols (1995), 72 Ohio St.3d
124, 128, 647 N.E.2d 1361. The notice requirement allows a party in default the opportunity
to explain or correct a default before a dismissal. Id.; Penaranda v. DNJ Holdings, LLC, 1st
Dist. No. C-090739, 2010-Ohio-5848. Thus, before a trial court may dismiss a case for
failure to prosecute, the court must provide notice of its intent to do so to the plaintiff’s
counsel. Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 454 N.E.2d 951, syllabus; Logsdon,
supra, at 128; Penaranda, supra.
{¶4} The record discloses no notice to plaintiff’s counsel or to the plaintiff that the
action was subject to dismissal. Therefore, the trial court erred in dismissing the plaintiff’s
action.
{¶5} Because the dismissal entered in this case did not comply with the notice
provisions of Civ.R. 41(B)(1), we sustain the assignment of error, reverse the judgment of
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OHIO FIRST DISTRICT COURT OF APPEALS
the trial court, and remand the cause to the trial court for further proceedings in accordance
with law.
Judgment reversed and cause remanded.
DINKELACKER, P.J., and CUNNINGHAM, J., concur.
Please Note:
The court has recorded its own entry on the date of the release of this opinion.
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