[Cite as Cordell v. Ohio Dept. of Rehab. & Corr., 2013-Ohio-5547.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Phillip K. Cordell,                                    :

                 Plaintiff-Appellant,                  :
                                                                          No. 13AP-379
v.                                                     :             (Ct. of Cl. No. 2010-10688)

Ohio Department of                                     :             (REGULAR CALENDAR)
Rehabilitation and Corrrection,
                                                       :
                 Defendant-Appellee.
                                                       :



                                         D E C I S I O N

                                   Rendered on December 17, 2013


                 Swope and Swope, and Richard F. Swope, for appellant.

                 Michael DeWine, Attorney General, and Ashley L. Oliker, for
                 appellee.

                             APPEAL from the Court of Claims of Ohio

McCORMAC, J.
        {¶1}     Plaintiff-appellant, Phillip K. Cordell ("appellant"), appeals from a
decision of the Court of Claims of Ohio that dismissed his complaint for want of
prosecution pursuant to Civ.R. 41(B)(1) for failing to pay past court costs. For the
following reasons, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
        {¶2}     On May 20, 2008, appellant filed a complaint against defendant-appellee,
the Ohio Department of Rehabilitation and Correction ("ODRC"), asserting three causes
of action for negligence. Appellant voluntarily dismissed the action, pursuant to Civ.R.
41(A), because he was attempting to locate a physician who had treated him. (Feb. 12,
No. 13AP-379                                                                            2


2013 Memorandum Contra Motion to Dismiss.) Appellant asserts that he filed an
affidavit of indigency after the case was concluded.       (Feb. 28, 2012 Memorandum
Contra Motion to Dismiss or Stay Proceedings.) On January 11, 2010, court costs were
assessed against appellant and a cost bill sent for $158.87.
       {¶3}   On September 21, 2010, appellant refiled the case. Appellant filed an
affidavit of indigency. On October 1, 2010, ODRC filed a motion to dismiss or to stay
proceedings because appellant had not paid court costs from the previous action. On
October 29, 2010, the Court of Claims denied the motion to dismiss, but granted the
motion for stay.
       {¶4}   On February 21, 2012, ODRC again filed a motion to dismiss or to stay
proceedings. The Court of Claims denied the motion as moot. On January 30, 2013,
ODRC filed a third motion to dismiss. On February 27, 2013, the Court of Claims
ordered appellant to provide evidence of payment of the court costs within 30 days or
the case would be dismissed for failure to prosecute. On April 3, 2013, the Court of
Claims granted ODRC's motion to dismiss pursuant to Civ.R. 41(B)(1).
II. ASSIGNMENT OF ERROR
       {¶5}   Appellant filed a timely notice of appeal and raises the following
assignment of error:
              THE TRIAL COURT ERRED AND ABUSED ITS
              DISCRETION IN DISMISSING AN INDIGENT PLAINTIFF'S
              CASE FOR WANT OF PROSECUTION WITH PREJUDICE
              PURSUANT TO CIV.R. 41(B)(1), FOR FAILING TO PAY PAST
              DUE COURT COSTS, DENYING HIM FREE ACCESS TO
              THE COURTS AND DUE PROCESS, IN VIOLATION OF THE
              OHIO CONSTITUTION, ARTICLE I, SECTION 16 AND THE
              FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.
              CONSTITUTION.

III. STANDARD OF REVIEW
       {¶6}   A trial court's decision to dismiss an action pursuant to Civ.R. 41(B)(1) is
within the sound discretion of the trial court. Hargrove v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 11AP-439, 2012-Ohio-375, ¶ 6, citing Quonset Hut, Inc. v. Ford
Motor Co., 80 Ohio St.3d 46, 47 (1997). The appellate court reviews the dismissal for an
abuse of discretion. Id. An abuse of discretion connotes more than an error of law or
No. 13AP-379                                                                               3


judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
IV. DISCUSSION
       {¶7}   Appellant argues that an affidavit of indigency was filed in the original
action, case No. 2008-06342, after it was concluded. However, the Court of Claims
record does not include such an affidavit. Moreover, the notice of dismissal, pursuant to
Civ.R. 41(A), entered in the original case (case No. 2008-06342) as prepared by
appellant's attorney, provides that "[c]ourt costs shall be paid by Plaintiff." (Oct. 6,
2009 Notice of Dismissal.) Thus, the court costs were assessed to appellant.
       {¶8}   Civ.R. 41(D) provides that the trial court may order the payment of court
costs from a prior action, as follows:
              If a plaintiff who has once dismissed a claim 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 claim
              previously dismissed as it may deem proper and may stay the
              proceedings in the action until the plaintiff has complied
              with the order.

       {¶9}   The Court of Claims stayed this action on October 29, 2010. The entry of
dismissal was not filed until April 3, 2013, after the court provided notice of its intention
to dismiss. More than two years had elapsed before the court dismissed the action
pursuant to Civ.R. 41(B)(1), which provides:
              Failure to prosecute.           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.

(Emphasis sic.)
       {¶10} The dismissal was within the sound discretion of the court.
       {¶11} Appellant argues that because he was indigent, the dismissal denied him
the right to free access to courts in violation of his constitutional rights. In this case,
however, appellant admitted he did not file an affidavit of indigency in the original case
until it "was concluded." (Feb. 28, 2012 Memorandum Contra Motion to Dismiss or
No. 13AP-379                                                                            4


Stay Proceedings, 1.) However, the record demonstrates that no affidavit was filed and
appellant admitted he would pay the costs. Thus, the court costs were assessed against
him. Appellant had not been determined indigent by the court when the costs were
assessed against him. Appellant cannot agree to pay the costs and then complain that
his constitutional rights are denied when the Court of Claims orders him to pay the
costs.
         {¶12} Moreover, appellant is not prohibited from bringing any action against the
state on any matter unrelated to the original action (case No. 2008-06342), only
matters involving the original action.     The Court of Claims' decision does not bar
indigent people access to courts.
         {¶13} Finally, appellant argues that a dismissal with prejudice is too harsh of a
remedy. However, that argument is moot under these facts since more than four years
has elapsed since the cause of action accrued and the statute of limitations for
negligence bars another action.
V. CONCLUSION
         {¶14} Accordingly, for the foregoing reasons, appellant's assignment of error is
overruled, and the judgment of the Court of Claims of Ohio is affirmed.
                                                                      Judgment affirmed.


                            BROWN and O'GRADY, JJ., concur.

               McCORMAC, J., retired, formerly of the Tenth Appellate
               District, assigned to active duty under the Ohio Constitution,
               Article IV, Section 6(C).
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