rejecting the partial concurrence’s argument to the contrary
How later courts described this case
- rejecting the partial concurrence’s argument to the contrary
- a trial court’s ex parte granting of a motion to dismiss pursuant to Civ.R. 41(A)(2) is reversible error
- "Notice allows the dismissed party to explain the Nos. 17AP-865 and 19AP-294 10 circumstances causing his or her nonappearance"
Written by the judges who cited it.
The opinion
Cook, J.,
concurring in part and dissenting in part. This rear-end collision case has a shameful procedural history that spans more than nine years due to, in my view, plainly dilatory tactics by plaintiffs’ counsel.
I concur with the adoption of the court of appeals’ opinion except in one respect. I would find that the Civ.R. 41(B)(1) notice requirement is satisfied where, as here, plaintiffs’ counsel acknowledged notice of the trial date, but advised the court that he would not appear of his own volition. The notice required by Civ.R. 41(B)(1) need not be actual but may be implied when reasonable under the circumstances. Heard v. Sharp (1988), 50 Ohio App.3d 34, 35 , 552 N.E.2d 665, 666 ; Heslop, Inc. v. Stoffer (Apr. 22, 1992), Summit App. No. 15258, unreported, 1992 WL 82660 . Where, as in this case, a party has received notice that the case has been set for trial, the party has impliedly received notice that the case can be dismissed for lack of prosecution if the notice is disregarded. *130 Heslop, supra; Wayne Riggs Constr., Inc. v. Botnick Bldg. Co. (Apr. 20, 1988), Summit App. No. 13277, unreported, 1988 WL 38897 . Furthermore, our judicial system is based on the orderly resolution of cases within an established time frame. Heslop, supra. When the time frame set by a court is ignored, the court has the authority to dismiss the case. Id.; Lloyd’s Rentals v. Gault (Sept. 23, 1992), Summit App. No. 15525, unreported, 1992 WL 236912 .
For the foregoing reasons, I dissent in part.
Wright and Pfeifer, JJ., concur in the foregoing opinion.