dissenting. The majority bases its decision to deny the requested writs of mandamus and prohibition on the doctrines of res judicata and laches. Because I believe the facts and the law indicate that this matter was decided earlier on procedural grounds, I must respectfully dissent.
In August 1997, relator, SuperAmerica Group, filed a complaint for writ of mandamus and prohibition, case No. 97-1647 (“SuperAmerica I’j. Because relator did not timely file evidence and a brief, its complaint was dismissed for failure to comply with S.Ct.Prac.R. X(9). It is the majority’s contention that because of this earlier dismissal in SuperAmerica I, relator’s instant action is barred by the doctrine of res judicata.
*189In Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226, syllabus, this court held that “[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” (Emphasis added.) In other words, pursuant to Grava, in order to deny relator’s instant action on res judicata grounds, the dismissal of SuperAmerica I had to be an adjudication on the merits. The dismissal of relator’s first cause of action was on procedural grounds, ie., failure to timely file relator’s evidence and merit brief under S.CtPrac.R. X(9). Therefore, the doctrine of res judicata is inapplicable.
A dismissal can be considered an adjudication on the merits under Civ.R. 41(B)(3). Civ.R. 41(B)(3) provides that “[a] dismissal under this subdivision, and any dismissal not provided for in this rule * * * operat[e] as an adjudication on the merits unless the court, in its order for dismissal, specifies otherwise.” Admittedly, the order issued by this court in dismissing SuperAmerica I did not specify that the decision was otherwise than on the merits. Presumably because S.Ct.Prac.R. X(9) does not expressly provide for dismissal in the event of noncompliance with its provisions, the majority contends that SuperAmerica I was dismissed for want of prosecution pursuant to S.Ct.Prac.R. X(ll). In any event, before we can decide if the dismissal of SuperAmerica I was or was not an adjudication on the merits, it must first be determined whether the dismissal was proper under Section 11.
Initially, this court’s entry dismissing SuperAmerica I makes no reference to S.CtPrac.R. X(ll). Additionally, S.Ct.Prac.R. X(ll) provides that “[ujnless all evidence is presented and relator’s brief is filed within the schedule issued by the Supreme Court, an original action shall be dismissed for want of prosecution.” (Emphasis added.) There was no schedule issued by this court in SuperAmerica I.
The majority contends that the briefing schedule provided by S.Ct.Prac.R. X(9) satisfies the “schedule issued” requirement of Section 11. Assuming arguendo this to be correct, the dismissal of SuperAmerica I for want of prosecution under S.Ct.Prac.R. X(ll) would still be improper. The staff and committee notes to S.Ct.Prac.R. X(ll) state in pertinent part that “the Court will dismiss an original action for lack of prosecution if, after an alternative unit is issued, the relator fails to file evidence and a brief.” (Emphasis added.) No alternative writ was ever issued in SuperAmerica I. In short, S.Ct.Prac.R. X(ll) contemplates both a briefing schedule being issued and an alternative writ being granted by the court before a case can be dismissed for want of prosecution. Since neither occurred in SuperAmerica I, the dismissal was improper.
Although the majority states that the dismissal of SuperAmerica I was pursuant to S.Ct.Prac.R. X(11), the majority curiously discusses involuntary *190dismissals under Civ.R. 41(B). Civ.R. 41(B)(1) states in pertinent part that “[w]here the plaintiff fails to prosecute, or comply with these rules or any court order, the court * * * may, after notice to the plaintiffs counsel, dismiss an action or claim.” (Emphasis added.) The majority contends that the notice requirement under Civ.R. 41(B)(1) does not apply to dismissals in this court while at the same time arguing that Civ.R. 41(B)(3) does apply. The majority cites no cases in support of this novel argument.
In Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 129, 647 N.E.2d 1361, 1365, this court held that “the trial court erred in failing to provide prior notice before dismissing plaintiffs’ action with prejudice.” Notice of intent to dismiss was never given to relator’s counsel in SuperAmerica I. Accordingly, the dismissal of SuperAmerica I was improper and thus cannot be used as a basis for denying the requested writs on the ground of res judicata.
Alternatively, the majority asserts that the notice requirement under Civ.R. 41(B)(1) is satisfied because notice of dismissal is, in effect, provided by S.Ct. Prac.R. X(ll) itself. However, as addressed above, because of the interplay between S.CtPrac.R. X(9), X(ll), and the staff and committee notes under the rule, it would have been improper to dismiss SuperAmerica I pursuant to S.CtPrac.R. X(ll). Additionally, it can hardly be argued that relator’s counsel failed to prosecute SuperAmerica I in view of counsel’s strict compliance with S.CtPrac.R. X(4)(B) in filing a complaint, an affidavit in support of the complaint, and a memorandum in support of the complaint.
The majority additionally proposes that relator’s cause of action is barred by the doctrine of laches. For the following reasons I do not believe laches is applicable to this action.
The majority first states that laches bars this action because relator “delayed almost three months from the board’s certification to bring this motion.,” The board of elections certified the validity of signatures on June 2,1997. This action was filed almost three months after the certification of signatures as the majority points out. However, the majority has conveniently overlooked that SuperAmerica I was filed in this court on August 6, 1997, just over two months after the board’s action. Regardless, I do not find this “delay” inexcusable or unreasonable as the majority contends. Attorneys need time to meet with their clients, discuss options, negotiate alternative resolutions, formulate legal strategies, research legal issues, and draft pleadings. I would consider this “delay” a reasonable amount of time for an attorney to spend in consultation with his client and in preparation for litigation.
The majority is correct that the filing of an expedited election matter in this court does not preclude application of the doctrine of laches. See State ex rel. Drew v. Vinton Cty. Bd. of Elections (1996), 75 Ohio St.3d 1416, 661 N.E.2d 1117, *191and State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143, 144, 656 N.E.2d 1277, 1278. However, these cases can be distinguished from the present cause of action. In Drew, the expedited election action was filed only thirty-six days before the upcoming primary election. In Polo, the action was filed thirty-two days before the election. Polo, 74 Ohio St.3d at 145, 656 N.E.2d at 1278. SuperAmerica I was filed ninety days prior to the upcoming election. This instant action was filed sixty-eight days before the election. The majority cannot seriously contend that an action filed ninety days prior to an election or a second action filed over two months before the election is barred by the doctrine of laches. If that is the case, then perhaps this court needs to revise its rules governing expedited election matters.
It is “a basic tenet of Ohio jurisprudence that cases should be determined on their merits and not on mere procedural technicalities.” Barksdale v. Van’s Auto Sales, Inc. (1988), 38 Ohio St.3d 127, 128, 527 N.E.2d 284, 285. Based upon the foregoing reasons, I dissent from the majority’s decision to deny the requested writs on the grounds of res judicata and/or laches.
Lundberg Stratton, J., concurs in the foregoing dissenting opinion.