      [Cite as McClain v. State, 2019-Ohio-1318.]
                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




ANTHONY MCCLAIN,                               :    APPEAL NO. C-180082
                                                    TRIAL NO. A-1604385
      Plaintiff-Appellant,                     :
                                                       O P I N I O N.
      vs.                                      :

STATE OF OHIO,                                 :

      Defendant-Appellee.                      :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: April 10, 2019




Koenig & Long, LLC, and James D. Owen, for Plaintiff-Appellant,

Dave Yost, Ohio Attorney General, and Byron D. Turner, Assistant Attorney
General, for Defendant-Appellee.
                       OHIO FIRST DISTRICT COURT OF APPEALS


Per Curiam.

       {¶1}    Plaintiff-appellant Anthony McClain appeals the trial court’s judgment

denying his motion to vacate. For the reasons stated below, we reverse the trial

court’s judgment.

       {¶2}    McClain sued the state of Ohio in 2008. He voluntarily dismissed his

complaint in 2010, and refiled it in 2011 in Franklin County, Ohio. In August 2016,

the venue of the case was transferred to Hamilton County, Ohio.               The record

demonstrates that in September 2016, McClain’s counsel acknowledged the transfer

and completed a notification form indicating his current address. In November

2016, the trial court dismissed McClain’s case, on its own motion, under Civ.R.

41(B)(1) for failure to prosecute. After learning of the dismissal, McClain moved to

vacate the court’s judgment of dismissal under Civ.R. 60(B).             The trial court

overruled that motion, and McClain appealed.

       {¶3}    In his single assignment of error, McClain argues that the trial court

erred by overruling his motion to vacate. We are constrained to agree under the

authority of Svoboda v. City of Brunswick, 6 Ohio St.3d 348, 453 N.E.2d 648 (1983).

In Svoboda, the Ohio Supreme Court held that because the trial court lacked

authority to dismiss the underlying action under Civ.R. 41(B)(1), it had erred by

denying Svoboda’s Civ.R. 60(B) motion to vacate the judgment of dismissal. The

Svoboda court noted that when a court proceeds, on its own motion, under Civ.R.

41(B)(1) to dismiss a case for failure to prosecute, it can do so only “after notice to the

plaintiff’s counsel or to plaintiff.” No such notice was provided by the trial court in

Svoboda. Id. at 350.

       {¶4}    Similarly, there is nothing in our record demonstrating that McClain

or his counsel was given notice, prior to dismissal, that McClain’s action would be



                                                2
                      OHIO FIRST DISTRICT COURT OF APPEALS


dismissed for failure to prosecute. Therefore, because the notice required under

Civ.R. 41(B)(1) was not given to McClain or his counsel, the court did not have the

authority to dismiss McClain’s lawsuit. Because the trial court lacked authority to

dismiss the lawsuit, it erred in overruling McClain’s motion to vacate the judgment of

dismissal. See Svoboda at 351. The single assignment of error is sustained.

       {¶5}    Accordingly, the judgment of the trial court is reversed, and the cause

is remanded for proceedings consistent with this opinion and the law.

                                               Judgment reversed and cause remanded.

MOCK, P.J., ZAYAS and MYERS, JJ.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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