Great Seneca Financial Corp. v. Emler, Unpublished Decision (11-30-2005) , 2005 Ohio 6465 ( 2005 )


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  • {¶ 36} I respectfully dissent from the majority opinion.

    {¶ 37} The majority finds the bench trial had not commenced before appellant orally moved to voluntarily dismiss its complaint. The majority concludes the bench trial had not commenced because opening statements had not yet been presented. Until such time, the majority reasons appellant should have been given the opportunity to file its voluntary notice of dismissal. To effectuate a dismissal under Civ.R. 41 (A)(1), a written notice is required to be filed with the court prior to commencement of trial as opposed to an oral request. Douthitt v.Garrison (1981), 3 Ohio App. 3d 254, 256. It is undisputed appellant herein never filed a motion to voluntarily dismiss under Civ.R. 41 (A)(1).1

    {¶ 38} The matter had been set for trial for approximately forty seven days. The court was prepared to hear the matter at the appointed time. The fact appellant assumed it would be granted a continuance to file a motion for summary judgment on the day scheduled for trial as opposed to being prepared to proceed, demonstrates, in my opinion, disrespect for the judicial process and the trial court. The record clearly demonstrates appellant was not prepared to go forward with any evidence. To excuse appellant's lack of preparation to proceed to trial at the assigned time and instead to require the trial court to allow appellant time to prepare and subsequently file a written notice of voluntary dismissal, if requested, would severely impede the trial court's inherent power to control its docket. I find the trial court was justified in enforcing its authority to maintain its docket. The trial court did not abuse its discretion in its determination of this case.

    JUDGMENT ENTRY
    For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Mount Vernon Municipal Court, Knox County, Ohio, is reversed and remanded. Costs assessed to appellee.

    1 Unlike the situation in Frazee v. Ellis Brothers, Inc. (1996), 113 Ohio App.3d 828, appellant herein did not file a written notice of voluntary dismissal prior to the trial court's entry of final judgment.

Document Info

Docket Number: No. 05CA000030.

Citation Numbers: 2005 Ohio 6465

Judges: BOGGINS, P.J.

Filed Date: 11/30/2005

Precedential Status: Non-Precedential

Modified Date: 4/18/2021