COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69692, 69693, 69694 and 69695 STATE OF OHIO, CUYAHOGA CHILD : SUPPORT ENFORCEMENT AGENCY, : EX REL., TOMMIE ADAMS : : Plaintiff-appellant : : -vs- : : JOURNAL ENTRY ALBERTA SCOTT : AND : OPINION Defendant-appellee : : and : : STATE OF OHIO, CUYAHOGA CHILD : SUPPORT ENFORCEMENT AGENCY, : EX REL., CARLA GRAHAM : : Plaintiff-appellant : : -vs- : : MICHAEL MELTON : : Defendant-appellee : : : : DATE OF ANNOUNCEMENT : JULY 25, 1996 OF DECISION : : CHARACTER OF PROCEEDING : Civil appeal from Juvenile : Court Division of Court of : Common Pleas Case Nos. : 9470450, 9370481, 9370482 : and 9370483 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : [continued on page -i-] -i- [continued from the cover page] APPEARANCES: For plaintiff-appellant: For defendant-appellees: STEPHANIE TUBBS JONES Alberta Scott Cuyahoga County Prosecutor 11922 Larchmere Blvd. Timothy Spackman Cleveland, OH 44120 Lynne A. Yohe Assistant County Prosecutors Tommie Adams P.O. Box 93894 6616 Fir Avenue Cleveland, OH 44101-5894 Cleveland, OH 44120 Carla Graham 1861 Hayden Avenue Cleveland, OH 44112 Michael Melton 561 Community College, #1300 Cleveland, OH 44115 - 2 - PATTON, J. This appeal is a consolidation of four cases involving the Cuyahoga Child Support Enforcement Agency (CSEA), appellant, for the disposition of support issues. The first three cases were filed by CSEA to establish parent- child relationships for three children between Michael Melton and Carla Graham. Parentage was established on all three actions on June 16, 1994, and each action was continued for determination of support issues. The three cases were set to be heard on August 25, 1995. On that date the referee found in all three cases that: "No one appeared for this case. Parent Child Relationship established June 16, 1994 and approved August 12, 1994. At dispositional hearing held on December 1, 1994, County Prosecutor requested another continuance for disposition and was granted leave to file Motion to Intervene on behalf of Department of Human Services. To date, no Motion to Inter- vene has been filed on behalf of Department of Human Services, no evidence of any claim for past child support or maternity expenses due mother and/or Department of Human Services and no guideline worksheet submitted to determine or calculate child support. Notices sent to all parties by regular mail August 15, 1995. Case pending for disposition since June 16, 1994." The referee then recommended: "There are no further orders necessary. All claims for maternity expenses and past child support due Department of Human Services are barred due to lack of timely motions and/or lack of evidence. Court costs are cancelled." - 3 - All three referee reports were approved September 13, 1995. Notices of Appeal were then filed October 13, 1995. The facts in the fourth case are similar to the facts in the previous three cases. In this case, the father, Tommie Adams, requested the services of CSEA to establish the parent-child relationship between himself and Alberta Scott's two children. Separate actions were filed for each of the two children, however CSEA's appeal is based on only one of these actions. Parent-child relationships were established for both children on June 17, 1994. Both cases were then continued and a hearing was set for August 25, 1995. On August 28, 1995, the referee's report was filed and it contained the same findings and facts as in the previous cases. CSEA argues the trial court, in all four cases, erred by barring the claims of the State of Ohio. First, by not allowing counsel of record to be present to introduce evidence and make arguments. Second, for requiring a Motion to Intervene to be filed on behalf of the Department of Human Services (DHS). CSEA also argues that the trial court erred by not following the mandates of R.C. 3113.217 regarding separate health insurance orders. CSEA's first assignment of error states as follows: THE TRIAL COURT ERRED BY DISPOSING OF THE ISSUES WITHOUT GIVING THE APPELLANT, THROUGH COUNSEL, AN OPPORTUNITY TO BE HEARD AND PRESENT EVIDENCE AND ARGUMENTS. - 4 - CSEA contends their representative was present on August 25, 1995, the date of the hearing. CSEA maintains their representative was not notified the cases were being called but, if called, was prepared to present evidence and argue. CSEA believes the referee erred by disposing of the case because no one appeared. In support of its argument, CSEA argues the trial court violated its right to due process by not allowing CSEA an opportunity to present an argument. CSEA's argument is well-taken. The trial court dismissed this case without giving CSEA the proper notice. Here, CSEA received notice there was a hearing before a referee on August 25, 1995. CSEA claims a CSEA representative was present on the day in question but was never called to the actual hearing. Subsequently, the referee prepared a report which recommended dismissing the case because no one appeared for the hearing. The trial judge then adopted and approved the referee's report, over the objections of CSEA, thereby dismissing the case. Although CSEA received notice of the hearing, this notice did not inform CSEA that the failure to appear at the hearing would result in the dismissal of the case, as mandated by Civ.R. 41(B)(1) which states: (B) Involuntary Dismissal: Effect Thereof. (1) 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. - 5 - In Rankin v. Willow Park Convalescent (1994), 99 Ohio App.3d 110, 112, citing Ohio Furniture Co. v. Mindala (1986), 22 Ohio St. 99, 101, this court considered the issue of dismissing a case without giving notice of the intent to do so and held "the trial court must give prior notice of its intent to dismiss a case with prejudice in order to allow the noncomplying party one last chance to obey the court order in full." The Ohio Supreme Court in Ohio Furniture Co. based this holding on the principle that "[a] dismissal on the merits is a harsh remedy that calls for the due process guarantee of prior notice." Since CSEA did not receive sufficient notice of the court's intention to dismiss, as required by Civ.R. 41(B)(1) and pursuant to the holding in Ohio Furniture Co., CSEA first assignment of error is sustained. In light of our ruling on CSEA's first assignment of error, we will not address CSEA's second and third assignments of error which challenge substantive issues in the cases. App.R. 12(A)(1)(c). Judgment is reversed and remanded. - 6 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said court 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. BLACKMON, P.J. NAHRA, J., CONCUR JUDGE JOHN T. PATTON 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, .