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Butler v. Harper9/25/2002
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellants, Marcus Butler ("Marcus"), Maurice Butler ("Maurice"), and Wanda Butler ("Wanda"), appeal from the decision of the Summit County Court of Common Pleas that dismissed their action with prejudice. Appellants also appeal the decision of the Summit County Court of Common Pleas, which granted Akron General Medical Center's ("Akron General") motion for summary judgment. We affirm in part and reverse in part.
This case originated in 1997. Specifically, on January 24, 1997, Appellants filed their initial complaint; however, Appellants voluntarily dismissed this complaint without prejudice pursuant to Civ.R. 41(A)(1)(a) on April 20, 1998. Subsequently, Appellants re-filed their complaint on April 8, 1999, but later stipulated to voluntarily dismiss the complaint without prejudice, in accordance with Civ.R. 41(A)(1)(b). On December 18, 2000, Appellants again re-filed their complaint and named Dr. Adolph Harper, Jr. ("Harper"), Adolph Harper, Jr., M.D., Inc., Akron General, Anesthesia Associates of Akron ("Anesthesia Associates"), Dr. Kirk ("Kirk"), and the Ohio Department of Human Services ("ODHS") as defendants.
Their complaint asserted the following: (1) a claim for medical malpractice; (2) a claim for loss of consortium; (3) a claim to defeat ODHS' subrogation rights; and (4) a claim for vicarious liability under the doctrine of agency by estoppel. Thereafter, Appellants voluntarily dismissed Kirk and Anesthesia Associates as defendants, and ODHS assigned its subrogation rights to Appellants. Akron General later moved for summary judgment, and the trial court granted its motion. Then, on April 9, 2002, the parties, in compliance with Civ.R. 41(A)(1)(b), stipulated to dismiss the case without prejudice. However, the trial court found the parties' stipulation invalid and ordered that it be stricken from the record. The trial court additionally dismissed their case with prejudice for failure to prosecute employing Civ.R. 41(B)(1). Appellants timely appeal and raise two assignments of error for review.
ASSIGNMENT OF ERROR I
"The trial court erred in vacating the stipulated dismissal of the parties and dismissing the case with prejudice."
In their first assignment of error, Appellants contend that the trial court erroneously vacated the parties' stipulated dismissal and dismissed their case with prejudice for want of prosecution.
A trial court's decision to dismiss an action for failure to prosecute is governed by Civ.R. 41(B)(1). Specifically, Civ.R. 41(B)(1) provides:
"Where 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."
An appellate court will not reverse a trial court's decision to dismiss an action pursuant to Civ.R. 41(B)(1) absent an abuse of discretion. Ina v. George Fraam & Sons, Inc. (1993), 85 Ohio App.3d 229, 231. In Jones v. Hartranft (1997), 78 Ohio St.3d 368, 372, the Ohio Supreme Court noted that the abuse of discretion standard is heightened when reviewing a trial court's dismissal pursuant to Civ.R. 41(B)(1), as this dismissal forever denies a plaintiff review of the merits of his claim.
Consequently, an appellate court will find that a trial court abused its discretion if it has dismissed a case for failure to prosecute and clearly failed to consider other less drastic measures. Ina, 85 Ohio App.3d at 231. Although the la
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