COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70760 DR. MITCHELL BARNEY : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION UNIVERSITY HOSPITALS OF : CLEVELAND, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : DECEMBER 19, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-289767 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: ROBERT TROLL LYNCH, ESQ. JAN L. ROLLER, ESQ. Lynch & Lynch Davis & Young 423 Statler Office Tower 1700 Midland Building Cleveland, OH 44115 101 Prospect Avenue Cleveland, OH 44115-1027 MARILYN J. SINGER, ESQ. 700 Skylight Office Tower 1660 West 2nd Street Cleveland, OH 44113-1454 - 2 - PATTON, J. The primary issue is this appeal is whether the trial court abused its discretion by dismissing with prejudice a complaint for failure to comply with a discovery schedule without first giving notice of its intent to do so. Plaintiff Mitchell Barney filed this action against defendants University Hospitals and Jane Timmons-Mitchell, M.D., alleging malpractice, negligent and intentional infliction of emotional distress, invasion of privacy and loss of companionship resulting from their treatment of his minor daughter. Defendants provided medical and psychological care to the daughter following allega- tions that plaintiff sexually abused her. A jury subsequently acquitted plaintiff of related criminal charges and he pressed this action seeking damages. The trial court issued three journal entries relevant to the issues on appeal. A summation of those journal entries show the trial court originally ordered plaintiff to produce his expert report on February 2, 1996, and later extended that deadline to April 15, 1996. On May 14, 1996, the trial court journalized an order stating, "[c]ase dismissed for failure of plt. to comply with discovery schedule after repeated extensions." The parties differ on their characterization of the dismissal. Plaintiff maintains the trial court dismissed the action as a Civ.R. 37 sanction for a discovery violation; defendants argue the - 3 - trial court dismissed the action under Civ.R. 41(B)(1) for failure to prosecute. The ready answer is found in the trial court's dismissal order. Undeniably, the trial court based its dismissal on plaintiff's failure to comply with the discovery schedule. Had the court wished to base the dismissal on some other grounds, it could easily have stated those grounds in its order. The fact that there was no extant "dispute" between the parties cannot change the precise wording of the journal entry. This distinction is of no moment, however, because the notice requirement of Civ.R. 41(B)(1) "applies to all dismissals with prejudice, including those entered pursuant to Civ.R. 37(B)(2)(c) for failure to comply with discovery orders." See Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99, 101 (emphasis in orig- inal). Civ.R. 41(B)(1) requires the trial court "to 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." Rankin v. Willow Park Convalescent Home (1994), 99 Ohio App.3d 110, 112, citing Ohio Furniture Co, supra. The trial court has broad discretion to impose sanctions for violations of discovery rules. Furcell v. Klammer (1980), 67 Ohio App.2d 156, 158. Despite this broad authority, we find the trial court abused its discretion by dismissing the matter because it failed to give notice, either actual or implied, of its intent to dismiss. - 4 - The trial court did not give plaintiff actual notice of its intent to dismiss. Civ.R. 41(B)(1) has been interpreted to state that the trial court must give advance notice of its intent to dismiss in order to provide the non-complying party with a chance to obey the court order in full. Nothing in the two journal entries preceding the dismissal gives any indication that the trial court would dismiss the action if plaintiff failed to provide an expert report. Likewise, we cannot say that the orders extending the deadline to submit the expert report could reasonably be construed as implying notice under the circumstances. Although there is some question whether notice can be implied at all, see Logsdon v. Nichols (1995), 72 Ohio St.3d 124, we nonetheless find the trial court did not put out any orders that would imply notice. Notably, the trial court's orders merely extended the deadline for submission of plaintiff's expert report. The orders did not state there would be no further extensions, nor did they contain any other language indicating the trial court would dismiss the action if the report was not forthcoming. Accordingly, we are constrained to sustain the third assignment of error. For this reason, we find the remaining assignments of error moot. See App.R. 12(A)(1)(c). Judgment reversed and remanded. - 5 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees his 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. NAHRA, P.J. KARPINSKI, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .