Opinion
No. 85-942
Decided August 13, 1986.
Civil procedure — Dismissal of cause for want of prosecution without prior notice — Civ. R. 41(B)(1) requires prior notice.
APPEAL from the Court of Appeals for Hamilton County.
On August 22, 1975, relator-appellant, Robert A. Levy, filed a complaint against the University of Cincinnati and the Teachers Insurance and Annuity Association, College Retirement Equities Fund, in the court of common pleas (case No. A-756855) alleging tort and contract claims. This complaint was subsequently amended to join Allen Brown as a party-defendant. On June 13, 1977, Judge Robert Kraft dismissed the tort claims against the university and dismissed Brown as a party-defendant. On November 15, 1977, respondent-appellee, Judge William J. Morrissey, dismissed appellant's contract claim against the university upon a motion for summary judgment. Thereafter, appellant filed a notice of appeal, but the appeal was voluntarily dismissed on January 17, 1978.
On September 15, 1982, the appellee dismissed appellant's remaining claims for lack of prosecution. Appellant alleges that his dismissal was undertaken without any prior notification to him, and that he did not learn of the dismissal of his action until November 10, 1982.
Consequently, on September 8, 1983, appellant attempted to refile his action (case No. A-8307212), but it was summarily dismissed by Judge Cartolano on the basis of res judicata. Upon appeal of this decision, the court of appeals affirmed the trial court's judgment on September 26, 1984.
On October 11, 1984, appellant filed a motion for relief from judgment pursuant to Civ. R. 60(B)(5), with respect to the September 15, 1982 dismissal of case No. A-756855. On October 15, 1984, the appellee dismissed appellant's motion. Appellant submits that he was not notified of this ruling until January 23, 1985.
Appellant then instituted the instant complaint for a writ of mandamus in the court of appeals; however, on April 30, 1985, the appellate court dismissed the complaint.
The cause is now before this court on an appeal as of right.
Robert A. Levy, pro se. Arthur M. Ney, Jr., prosecuting attorney, and Brian E. Hurley, for appellee.
The relator-appellant contends that respondent-appellee's failure to properly notify him of the September 15, 1982 dismissal of his original complaint, and the October 15, 1984 dismissal of his Civ. R. 60(B)(5) motion, effectively precluded any opportunity for him to properly mount an appeal of either decision within the requisite time frame. Accordingly, appellant asks this court to issue the writ of mandamus and direct the court of appeals to grant him leave to appeal appellee's final judgment denying his Civ. R. 60(B)(5) motion filed on October 11, 1984.
Appellee proposes that the within writ should be dismissed on the grounds that appellant did not avail himself of an appeal to the court of appeals.
As a preliminary matter, the propriety of the relief sought by appellant should be reviewed. In the first place, the court of appeals is not a party to the cause sub judice. Secondly, mandamus may not issue in order to compel judicial discretion. R.C. 2731.03. Thus, this court may not compel the court of appeals to grant appellant leave to appeal the denial of his Civ. R. 60(B)(5) motion.
In analyzing appellant's arguments, it becomes apparent that he has focused on the wrong judicial proceeding upon which to base his complaint for a writ of mandamus. Appellant asserts that the appellee's failure to issue timely notification of the dismissal of his Civ. R. 60(B)(5) motion nullified any right of appeal. However, this court has recently noted that "* * * no provision in Ohio law or rule of civil or appellate procedure requires that a party be given actual notice of the filing of a judgment entry." Americare Corp. v. Misenko (1984), 10 Ohio St.3d 132, 134. In Americare, we also concluded that a local court rule requiring a court to notify the parties upon the journalization of a judgment, which is similar in content to the relevant local rule in the instant cause (Loc. R. 17 of the Court of Common Pleas of Hamilton County), did not require the issuance of actual notice. Id. at 133. Accordingly, the fact that appellant was not informed of appellee's ruling does not relieve him of the duty to file an appeal of that ruling within thirty days of the journalization of the judgment entry.
The foregoing analysis notwithstanding, it does appear that appellant has a basis upon which to bring the instant mandamus action. Upon a careful review of the record, we find that appellee's original dismissal of appellant's action on September 15, 1982 for lack of prosecution was accomplished without any prior notice to appellant. Pursuant to Civ. R. 41(B)(1), such a dismissal requires prior notice to plaintiff's counsel or plaintiff. Svoboda v. Brunswick (1983), 6 Ohio St.3d 348; Perotti v. Ferguson (1983), 7 Ohio St.3d 1. In fact, in Svoboda, supra, at 350, this court stated that "* * * [i]t was an abuse of discretion by the trial court to dismiss this action for want of prosecution where notice was not given to the plaintiff, or to plaintiff's counsel, prior to dismissal that the action would be dismissed."
Therefore, we believe that the September 15, 1982 dismissal of appellant's original action for lack of prosecution without prior notice to appellant, who was apparently acting pro se at the time, constitutes an abuse of discretion on the part of appellee.
Accordingly, in view of the fact that appellant's original action was wrongfully dismissed under Civ. R. 41(B)(1), we reverse the judgment of the court of appeals and allow the issuance of a writ of mandamus to compel the trial court to reactivate appellant's original claim (case No. A-756855).
Judgment reversed and writ allowed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN and WRIGHT, JJ., concur.
DOUGLAS J., dissents.