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Campbell v. Gallimore12/5/1990
.R. 41(A)(1)(a) cannot be the basis for awarding attorney fees as part of the costs of the action under the provisions of Civ.R. 41(D).
Finding nothing in the language of Civ.R. 41(D), or any improper conduct within the record of this case, the award of attorney fees pursuant to Civ.R. 41(D) is an abuse of discretion and is cause for reversal in part of the trial court's decision.
Therefore, we conclude that the Hosner decision, in its award of attorney fees as part of the "costs of the action" found in Civ.R. 41(D), is not in accord with Ohio law where a plaintiff voluntarily dismisses an action pursuant to Civ.R. 41(A)(1)(a) and subsequently refiles the same claim against the defendant. Further, a dismissal, without prejudice, for failure to pay appellee's costs of the action is not authorized under Civ.R. 41(D). The proper remedy under this rule is a stay in the proceedings.
Accordingly, the decision of the trial court is reversed in part and we remand for further proceedings consistent with this opinion.
Judgment reversed.
REECE, P.J., and CACIOPPO, J., concur.
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