COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67518 WILLIAM WALTON, ET AL., : PRO SE : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION DONALD SHELANGOSKI, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 236762 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: JOYCE D. WALTON, PRO SE STEVEN K. KELLEY, ESQ. WILLIAM WALTON, PRO SE 6480 Rockside Woods Blvd., So. 7029 CH 44 Suite 210 Upper Sandusky, Ohio 43351 Independence, Ohio 44131-2284 - 2 - DYKE, J.: The original action in this case stemmed from an automobile accident involving appellants and appellee, Donald Shelangoski. The case was referred to arbitration where appellants were awarded $9,300. Upon appellants' appeal to the Court of Common Pleas from the arbitration award, appellants also filed a motion to continue the trial date set prior to the arbitration hearing. Appellants' counsel also filed a motion to withdraw at the same time. The trial court granted appellants' motion for a continuance, setting the new trial date of May 24, 1994. Appellants were directed to appear through new counsel by February 21st, their previous counsel's motion to withdraw having been granted. Appellants filed a pro se motion on February 24th to continue the trial date again in order for them to obtain new counsel. The trial court ruled that this motion was to be stricken, having never been served upon the appellees. The case was ultimately dismissed with prejudice for failure to prosecute when appellants failed to appear for the May 24th trial date. A journal entry dated May 20th, but filed May 27th, indicated that the case had been transferred for assignment to a visiting judge due to the original judge's heavy trial schedule. This transfer never occurred. The original judge signed the entry dismissing the case on May 24th. Appellants assert three assignments of error in their pro se brief. However, only two of the assignments are briefed. We will - 3 - review all three assignments, taking note that this is a pro se appeal. I THE JUDGE ACTED WITH TOTAL ABSENCE OF JURISDICTION IN SCHEDULING A WHEN TRIAL BY JURY WAS DEMANDED. [SIC] Appellants argue that their Constitutional right to a jury trial was violated when the trial court rescheduled the trial date following the arbitration hearing, indicating on the journal entry that it was to be a "judge trial." Appellants' argument is without merit. Appellants properly requested a jury in their initial complaint and in their appeal from the arbitration award. Appellants attempted to reassert their request for a jury trial in their stricken pro se motion for a further continuance of the May 24th trial date. Although both parties seem to agree that the journal entry which rescheduled the trial date includes the notation "judge trial," this is not apparent from any document in the record. The journal entry dated January 14, 1994 does not contain any such notation, stating only, "Trial is reset from 2/22/94 to 5/24/94 at 9:00 a.m." Regardless of what form appellants believe the trial would have taken, the fact remains that no trial took place. Appellants can not complain that their Constitutional right to a trial by jury has been violated when their case was dismissed for failure to appear on the trial date. Appellants' first assignment of error is overruled. - 4 - II THE JUDGE ERRED WHEN PLAINTIFFS COUNSEL WAS DISMISSED WITHOUT CONSENT OR INPUT TO SUCH ACT BY PLAINTIFFS. [SIC] Appellants claim that the court erred in granting their trial counsel's motion to withdraw without consulting appellants or obtaining their consent. Appellants' assertion is not well taken. A trial court has the discretion to grant an attorney's motion to withdraw for good cause shown. Loc.R. 10(B). Appellants' attorney made a written motion to withdraw on the basis of irreconcilable differences with his clients. It is the purpose of the rule requiring permission from the court to withdraw to assure that a client will not be prejudiced as a result. See Bennett v. Bennett (1993), 86 Ohio App.3d 343. The court in the present case granted appellants' motion to continue the date of trial for three additional months in order to give them time to employ new legal representation. The court met its obligation to assure that appellants were not prejudiced, therefore the court did not abuse its discretion. The trial court has no obligation beyond assuring that the party is not prejudiced by the attorney's withdrawal. No rule exists requiring the court to allow the party to be heard on the issue of withdrawal. Furthermore, appellants' assertion in their brief that they were prejudiced by the attorney's refusal to turn over their file until late February of 1994 is without support in the record. We can not review a claim which is in no way - 5 - documented by the party through written motions or otherwise noted in the record. Appellants' second assignment of error is overruled. III THE JUDGE LACKED JURISDICTION TO DISMISS THE ACTION. Appellants argue within their first assignment of error that because the trial judge owed them a trial by jury, and had scheduled only a trial to the bench, appellants had no legal obligation to appear on May 24th for trial. Appellants' argument is without merit. Civ.R. 41(B)(1) provides: 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. Ohio case law has interpreted this language to require that notice be given to plaintiff's counsel as a condition precedent to dismissal upon the merits, where neither plaintiff nor his or her counsel appears for trial. See Metcalf v. Ohio State Univ. Hosp. (1981), 2 Ohio App.3d 166. After a review of recent cases in which Civ.R. 41(B)(1) was utilized by trial courts to dismiss actions, we find that appellants had adequate notice of the trial date through the journal entries. The first entry, dated January 14, 1994, announced the rescheduling of the trial date and ordered appellants to appear with new counsel by February 21st, which they failed to do. A second journal entry denied their pro se motion for further - 6 - extension of time and also contained the language, "Trial schedule maintained." This entry was dated April 26, 1994. Appellants claim to be confused by the entries purportedly transferring the case to a visiting judge due to the original judge's heavy trial schedule. This claim is not believable, given that the filing date of the entries is May 27th, three days after appellants failed to appear for trial. An appellate case out of Franklin County held that: The notice required by Civ.R. 41(B)(1) as a condition precedent to dismissal of a party's claim for failure to prosecute is not satisfied by notice of a trial date. Ford Motor Credit Co. v. Potts (1986), 28 Ohio App.3d 93, paragraph one of the syllabus. The present case is procedurally distinguishable from the Franklin County case in that appellants had actual notice of the two journal entries referred to above. The plaintiff in Ford Motor Credit Co. v. Potts did not receive actual notice of the trial date. The date was published in the Daily Reporter over a period of three months. Based on the plaintiff's failure to appear the trial court dismissed her third-party complaint and counterclaim with prejudice. The appellate court reversed the dismissal, noting that plaintiff should have the opportunity to explain the circumstances of her nonappearance prior to dismissal of her claim. We find that appellants, who have failed to even argue this assignment of error in their brief, have failed to state any reason to justify their nonappearance before the trial court on May 24th. - 7 - They do not state that they were unaware of the date, nor do they claim to have been surprised by the court's dismissal. Civ.R. 60(B) does not offer appellants any recourse entitling them to relief from judgment, given the unique circumstances of this case. The trial court's dismissal of appellants' appeal from the arbitration award was not an abuse of discretion. Appellants had notice of the proceedings and should not have been surprised by the court's action in dismissing their appeal for failure to prosecute. Appellant's third assignment of error is overruled. The trial court's dismissal is affirmed. - 8 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J., AND O'DONNELL, J., CONCUR ANN DYKE PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .