COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71617 NATALIE SANGSTER, ET AL. : : : JOURNAL ENTRY PLAINTIFFS-APPELLANTS : : AND v. : : OPINION JERRY W. DUNN, ET AL. : : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 14, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-292526. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Robert J. Sawyer, Esq. 300 The Superior Building 815 Superior Avenue Cleveland, OH 44114-2746 For Defendants-Appellees: Lewis Einbund, Esq. Thomas D. Robenalt, Esq. Skylight Office Tower 1660 W. 2nd Street, No. 270 Cleveland, OH 44113-1498 2 DAVID T. MATIA, P.J.: Natalie and Stephen Sangster, plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, General Division, Case. No. CV-292526, in which the trial court dismissed the underlying action with prejudice for failure to prosecute pursuant to Civ.R. 41(B)(1). The dismissal was accomplished though a nunc pro tunc entry for the date July 8, 1996 which was journalized on October 22, 1996. Plaintiffs-appellants assign two errors for this court's review. Plaintiffs-appellants' appeal is well taken. On November 5, 1991, Natalie Sangster, plaintiff-appellant, was operating an automobile which was involved in a collision with an Americab Taxi owned by the Americab Company. As a result of the collision, Natalie Sangster and Stephen Sangster, plaintiffs- appellants, filed suit in the Cuyahoga County Court of Common Pleas alleging negligence against Americab and the driver of the taxi. Plaintiffs-appellants sought recovery for Natalie Sangster's alleged personal injuries and Stephen Sangster's alleged loss of consortium. After completion of discovery, the case was scheduled for trial on July 20, 1994. On the day of the scheduled trial, plaintiffs-appellants voluntarily dismissed their complaint without prejudice pursuant to Civ.R. 41(A)(1)(a). On July 19, 1995, plaintiffs-appellants refiled their original case pursuant to R.C. 2305.19, Ohio's savings statute. On February 3 12, 1996, the case was transferred to the docket of the original trial court judge pursuant to C.P.Supp.R. 4. On April 11, 1996, the trial court conducted a case management conference at which the following pertinent dates were established: a trial date of July 8, 1996, a final pretrial date of June 2, 1996; and a discovery cut-off date of June 19, 1996. On June 24, 1996, plaintiffs-appellants filed a motion for continuance of the trial date due to the unavailability of an expert medical witness. The trial court denied plaintiffs-appellant's motion for continuance of trial on June 27, 1996. On July 8, 1996, the day of the scheduled trial, plaintiffs- appellants filed a second motion for continuance of trial along with an affidavit of disqualification against the trial court judge. The affidavit of disqualification had been previously filed with the Ohio Supreme Court on July 5, 1996. Due to the pending affidavit of disqualification, the scheduled trial did not occur. On July 9, 1996, the Ohio Supreme Court ruled upon plaintiffs- appellants' affidavit of disqualification finding in pertinent part: With respect to affiant's claim of bias or prejudice. In re Disqualification of Spahr (1987), 36 Ohio St.3d 603. Moreover, the fact that a party or lawyer in a pending case campaigned for or against the judge is not grounds for disqualification. In re Disqualification of Celebrezze (1991), 74 Ohio St.3d 1231. Affiant speculates that his support of Judge Cleary's opponent was the cause of the adverse ruling on the motion for a continuance (see paragraphs 1 and 7 of the affidavit), but he fails to substantiate this assertion. Based on the record before me, I cannot conclude that Judge Cleary is biased or 4 prejudiced for or against any party to this matter. For these reasons, the affidavit of disqualification is found not well-taken and is denied. The case shall proceed before Judge Cleary. See, In re Disqualification of Cleary (1996), 77 Ohio St.3d 1246. The trial court subsequently scheduled a hearing for October 21, 1996. The trial court's entry, which was also journalized on October 21, 1996, stated: Hearing set for 10-21-96 at 8:30. Sanctions may be imposed for failure to appear. The hearing proceeded on October 21, 1996 as scheduled. At the hearing, the trial court delineated the procedural history of the case, including the previously dismissed case, and then stated in pertinent part: THE COURT: This matter had been set for trial. The affidavit of prejudice, in my mind, a continuance of the trial, first of all, was denied. The affidavit of prejudice was filed to improperly obtain more time in order to proceed with trial in this matter, and to obtain witnesses' attendance. That's an improper mechanism. This case was not diligently pursued for trial. It had been filed pending for over a year, dismissed, refiled for a year, and the case was not prepared properly for trial. At this time this case is dismissed with prejudice for want of prosecution. MR. SAWYER: May the record reflect the fact that I am here ready to proceed with this 5 case at this time, and at any time the Court should give me an opportunity to hear it. Take my exception to it. THE COURT: This case had been set for trial twice in the past. Counsel apparently didn't take advantage of those trial days. We are in recess. (Tr. 7-8.) On October 22, 1996, the trial court journalized the following entry: Nunc Pro Tunc 7-8-96. Hearing had. Case dismissed with prejudice for want of prosecution. It is so ordered. On November 11, 1996, plaintiffs-appellants filed a timely notice of appeal from the judgment of the trial court. 6 II. FIRST ASSIGNMENT OF ERROR Plaintiffs-appellants' first assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO PROVIDE PLAINTIFFS- APPELLANTS NOTICE AND AN OPPORTUNITY FOR A HEARING BEFORE DISMISSING THE COMPLAINT FOR WANT OF PROSECUTION. . THE ISSUE RAISED: FAILURE OF TRIAL COURT TO PROVIDE NOTICE REGARDING DISMISSAL PURSUANT TO CIV.R. 41(B)(1). Plaintiffs-appellants argue, through their first assignment of error, that the trial court improperly dismissed the underlying case with prejudice for failure to prosecute pursuant to Civ.R. 41(B)(1). Specifically, plaintiffs-appellants maintain that the trial court failed to properly comply with the notice requirement contained within Civ.R. 41(B)(1) and failed to provide plaintiffs- appellants with the opportunity for a meaningful hearing. . STANDARD OF REVIEW. Civ.R. 41(B)(1) provides as follows: 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. When a trial court proceeds under Civ.R. 41(B)(1) on its own motion to dismiss, it can only do so after notice to plaintiff or to the plaintiff's counsel. Svoboda v. City of Brunswick (1983), 6 Ohio St.3d 348, 350. The notice requirement of Civ.R. 41(B)(1) is an absolute prerequisite to dismissal for failure to prosecute. Dresher v. Summers (1986), 30 Ohio App.3d 271, 272. This is the rule even when the dismissal is without prejudice. Windell Woodson 7 v. Highland Beefalo Farms, Inc. (Dec. 2, 1996), Madison App. No. CA96-03-016. In Logsdon v. Nichols (1995), 72 Ohio St.3d 124, the Ohio Supreme Court stated as follows regarding dismissals pursuant to Civ.R. 41(B)(1): Generally notice is a prerequisite to dismissal for failure to prosecute under Civ.R. 41(B)(1). Hence, it is error for the trial court to dismiss plaintiff's case without notice for failure to prosecute when plaintiff and his counsel fail to appear for trial on the assigned trial date ***. McCormac, Ohio Civil Rules Practice (2 Ed. 1992) 356-357, Section 13.07. The purpose of notice is to provide the party in default an opportunity to explain the default or to correct it, or to explain why the case should not be dismissed with prejudice. Id. At 357; Metcalf v. Ohio State Univ. Hosp.(1981), 2 Ohio App.3d 166.2 OBR 182, 441 N.E.2d 299. Notice allows the dismissed party to explain the circumstances causing his or her nonappearance. McCormac, supra, at 357. Id.At 128; Pertotti v. Ferguson (1983), 7 Ohio St.3d 1, paragraph one of the syllabus; Kracht v. Kracht (June 5, 1997), Cuyahoga App. No. 70005, 70089, unreported. In addition prior to dismissing a case for want of prosecution, the trial court must consider other alternatives to dismissal. Ina v. George Fraam & Sons, Inc. (1993), 85 Ohio App.3d 229. A trial court's power to dismiss for want of prosecution is a discretionaryfunction which is not reversible on appeal absent an abuse of discretion. Pembaur v. Leis (1982), 1 Ohio St.3d 89, 91; Martin v. City of Cleveland Heights (June 2, 1994), Cuyahoga App. No. 66533, unreported; Calvin v. Potts (April 18, 1996), Cuyahoga App. No. 69247, unreported. An abuse of discretion occurs where 8 the trial court's attitude was unreasonable, arbitrary or unconscionable. Castlebrook, Ltd. V. Dayton Properties, Ltd. (1992), 78 Ohio App.3d 340, 346; Scandanavian Health Spa, Inc. v. Ohio Civ. Rights Comm. (1990), 64 Ohio App.3d 480, 488. . THE TRIAL COURT'S CIV.R. 41(B)(1) DISMISSAL WAS IMPROPER. In this case, a review of the record demonstrates that the trial court's dismissal of plaintiffs-appellants' action with prejudice pursuant to Civ.R. 41(B)(1) was improper since the trial court failed to notify plaintiffs-appellants of its intentions prior to the actual date of dismissal. The trial court's journal entry which scheduled the October 21, 1996 hearing at which plaintiffs-appellants' action was dismissed provided only: Hearing set for 10-21-96 at 8:30. Sanctions may be imposed for failure to appear. Under the facts of the present case, it is apparent that the trial court committed an abuse of discretion by dismissing plaintiffs-appellants' action with prejudice for failure to prosecute where prior notice of the trial court's intention to dismiss was not given to plaintiffs-appellants as required under Civ.R. 41(B)(1). A review of the transcript of the October 21, 1996 hearing shows that the trial court apparently felt justified in dismissing plaintiffs-appellants' action because of the procedural history of the case and the timing of the affidavit of disqualification. While these factors may have been the source of a certain amount of frustration for the trial court, the factors do not constitute an adequate basis for a Civ.R. 41(B)(1) dismissal 9 with prejudice in the absence of prior notice to plaintiffs- appellants or plaintiffs-appellants' counsel. This is particularly true in light of the fact that, after the Supreme Court denied plaintiffs-appellants' affidavit of disqualification on July 9, 1996, the trial court record fails to reflect any attempt by the trial court to reschedule the trial date in this case. Without a rescheduled trial date, dismissal of an action with prejudice for want of prosecution pursuant to Civ.R. 41(B)(1) was improper given plaintiffs-appellants' attendance at all scheduled trial court proceedings. Plaintiffs-appellants' first assignment of error is well taken. III. SECOND ASSIGNMENT OF ERROR Plaintiffs-appellants' second assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED ERRORS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION, SECTION 5(C) ARTICLE IV OF THE OHIO CONSTITUTION, AND THE PREVAILING OHIO CASE LAW BY ENTERING A NUNC PRO TUNC ORDER COVERING A PERIOD WHEN THE COURT LACK[ED] AUTHORITY. . THE ISSUE RAISED: NUNC PRO TUNC ORDERS. Plaintiffs-appellants argue, through their second assignment of error, that the trial court incorrectly entered a nunc pro tunc order to July 8, 1996. It is plaintiffs-appellants' position that, on that date, the trial court had no authority to act because of the pending affidavit of disqualification in the Ohio Supreme Court and therefore the nunc pro tunc entry was not valid. . STANDARD OF REVIEW FOR NUNC PRO TUNC JOURNAL ENTRY. 10 The function of a nunc pro tunc journal entry is to correct an omission in a prior journal entry so as to enter upon the record judicial action actually taken but erroneously omitted from the record. McKay v. McKay (1985), 24 Ohio App.3d 74, 75; Roth v. Roth (1989), 65 Ohio App.3d 768, 771. A nunc pro tunc entry has been described as *** a simple device by which a court may make its journal speak the truth. State v. Breedlove (1988), 46 Ohio App.3d 78, 81. Therefore, a nunc pro tunc order cannot be used to indicate what the court might or should have decided, or what the trial court intended to decide. Its proper use is limited to what the trial court actually did decide. State v. Greulich (1988), 61 Ohio App.3d 22, 25; State v. Keller (March 4, 1997), Union App. Nos. 14- 96-36, 14-96-37, unreported. . THE TRIAL COURT IMPROPERLY ENTERED THE NUNC PRO TUNC JUDGMENT ENTRY. In the case sub judice, a review of the record demonstrates that the trial court conducted a hearing on October 21, 1996. As a result of that hearing, the trial court entered the following: Nunc Pro Tunc 7-8-96. Hearing had. Case dismissed with prejudice for want of prosecution. It is so ordered. Clearly, this constitutes an improper use of a nunc pro tunc order given the fact that no such action could have taken place on the date in question because of the pending affidavit of disqualification. The trial court stated as much during the October 21, 1996 hearing: 11 It came to the Court's attention through the Supreme Court of Ohio telephone call, I believe it was on the day of trial, that an affidavit of prejudice had been filed against the Court. At no time was the Court afforded the courtesy of receiving the copy of the affidavit of prejudice, in addition, the affidavit of prejudice was out of rule, not having been filed three days before trial. But pursuant to the direction from the Supreme Court the Court did nothing. (Tr. 4-5.) Contrary to plaintiffs-appellants' position, an affidavit of disqualification does not automatically divest the trial court of power to act, even upon substantive matters. See, State ex rel. Litty v. Leskovyansky (1996), 77 Ohio St.3d 97, 101. However, in this instance, the trial court admitted that no action of any kind was taken on July 8, 1996. Therefore, the trial court's nunc pro tunc entry to July 8, 1996 was improper as it did not correct an omission of error in a prior trial court journal entry. McKay, supra; Greulich supra. Plaintiffs-appellants' second assignment of error is not well taken. For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded to the Administrative Judge of the Cuyahoga County Court of Common Pleas for assignment and further proceedings consistent with this opinion. Reversed and remanded. 12 This cause is reversed and remanded for further proceedings consistent with the opinion herein. 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. KARPINSKI, J. and *HOLMES, J., CONCUR. (*Justice Robert E. Holmes, Retired Justice of the Ohio Supreme Court, sitting by assignment.) DAVID T. MATIA PRESIDING JUDGE 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 .