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Campbell v. Gallimore12/5/1990
CIRIGLIANO, Judge.
The facts of this case are primarily procedural in nature. In 1988, appellant, Clinton Campbell, filed a personal injury claim against the appellee, Paula Gallimore, in the Summit County Common Pleas Court, which arose from an automobile accident that occurred in Twinsburg, Ohio on September 3, 1986. Appellant's counsel voluntarily dismissed the action, without prejudice, pursuant to Civ.R. 41(A)(1)(a). The identical action was refiled by Campbell's present counsel on August 3, 1989.
Counsel for Gallimore filed a motion to recover costs pursuant to Civ.R. 41(D). A pretrial conference and a hearing on Gallimore's motion was scheduled for January 3, 1990. Counsel for Campbell did not appear at the hearing. The trial court ordered Campbell's counsel to pay Gallimore's attorney the sums of $150 for failing to appear at the pretrial conference, as permitted by local rule. Further, the trial court ordered Campbell to pay, within thirty days, the sum of $1,249.45 for costs and attorney fees incurred in the previously dismissed case.
On March 1, 1990, Gallimore filed a motion to dismiss, alleging that Campbell failed to comply with the trial court's January 1990 order. A hearing on this motion was held and the trial court dismissed Campbell's case, without prejudice, for failure to pay sanctions and defendant's costs as previously awarded and for want of prosecution. Campbell appeals from that order asserting two assignments of error.
"I. The trial court erred in ordering appellant to pay appellee's court costs from an identical voluntarily dismissed action pursuant to Civil Rule 41(D).
"II. The trial court erred in dismissing appellant's action based on his failure to pay appellee's costs from an identical voluntarily dismissed action pursuant to Civil Rule 41(D)."
Both assignments of error relate to the trial court's order dismissing plaintiff's case, without prejudice, pursuant to Civ.R. 41(D); therefore, they will be considered together.
Civ.R. 41(D) provides:
"If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order."
The language of the rule, in particular the appearance of the word "may," indicates that the ordering of costs is within the trial court's sound discretion. See Dorrian v. Scioto Conserv. Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834, paragraph one of the syllabus. Further, the power to dismiss, though not unbridled, is also within the sound discretion of the trial court. Thus, appellate review of either action by the trial court is properly confined to determining whether the trial court abused that discretion. Pembaur v. Leis (1982), 1 Ohio St.3d 89, 1 OBR 125, 437 N.E.2d 1199.
The issue in this case is whether the trial court may assess attorney fees as part of the costs allowed by Civ.R. 41(D). The trial court ordered, pursuant to appellee's motion, the sum of $1,249.45 to pay for appellee's attorney fees and expenses incurred when the case was first filed in 1988 and voluntarily dismissed without prejudice pursuant to Civ.R. 41(A)(1)(a) by appellant's former counsel. In support of this award of attorney fees as part of the "costs of the action previously dismissed" as provided in Civ.R. 41(D), the trial court relied on the decision in Hosner v. The Gibson Partner (1986), 32 Ohio Misc.2d 4, 29 OBR 120
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