COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71631 : ACCELERATED DOCKET NISSAN MOTOR ACCEPTANCE CORPORATION : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION TEROLDLYN D. BARKLEY, ET AL. : : : PER CURIAM Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 7, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-311750 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: KATHLEEN M. BLOOD, ESQ. TEROLDLYN D. BARKLEY, pro se JOHN P. CURP, ESQ. 7707 Lockyear TAFT, STETTINIUS & HOLLISTER Cleveland, Ohio 44103 Bond Court Building, Suite 600 1300 East Ninth Street Cleveland, Ohio 44114-1503 - 2 - PER CURIAM: This accelerated appeal was brought pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of the accelerated appeal is to allow this court to render a decision in brief and conclusionary fashion. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Plaintiff-appellee, Nissan Motor Acceptance Corporation ("Nissan"), appeals from the judgment of the trial court, which dismissed plaintiff's complaint because Nissan failed to attend a scheduled hearing. We find merit to plaintiff's assignment; therefore, this matter is reversed and remanded. The relevant facts follow. On October 15, 1994, defendant Teroldlyn Barkley leased a car from Ganley Nissan. Plaintiff alleges that by March 15, 1996, defendant had failed to make his monthly payments under the lease agreement. Thereafter, on July 12, 1996, plaintiff filed a complaint in common pleas court which sought the following: (1) For Defendants' wrongful possession of the Sentra, an order granting Plaintiff permanent possession of the Sentra; (2) For Defendant Barkley's breach of the Agreement: damages in the amount of $12,153.81 and all costs of repossession and other expenses incurred as a result of Defendant Barkley's failure to make payments pursuant to the express terms of the Agreement; (3) For Defendant Barkley's conversion of the Sentra: damages in the amount of $12,153.81 and all costs of repossession and other expenses incurred as a result of her wrongful possession of the Sentra; (4) For interest from the date of judgment in the maximum amount permitted by law; and (5) For such relief as the court may deem just and proper. - 3 - Along with the complaint, plaintiff filed a "Motion For Order Of Possession." The praecipe filed on this day notes a hearing scheduled for August 1, 1996. The record does not contain any record of this hearing. However, on September 26, 1996, the court's docket reflects that hearing was scheduled for October 22, 1996 on plaintiff's motion for order of possession. Prior to this hearing, plaintiff filed, on October 18, 1996, a "Request For Withdrawal Of Motion For Order Of Possession." In this request, plaintiff stated that the vehicle in question was returned to plaintiff pursuant to an order from another judge. Apparently, the car was seized by the Cleveland Police Department. Plaintiff claimed that because the vehicle had been returned, the motion for order of possession was moot. Notwithstanding this request, the trial court held a hearing on the motion and, after nobody appeared, dismissed the case with prejudice. From this order, plaintiff timely appeals and raises the following assignment of error: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT NISSAN MOTOR ACCEPTANCE CORPORATION BY DISMISSING WITH PREJUDICE ITS COMPLAINT AGAINST APPELLEE TEROLDLYN BARKLEY FOR APPELLANT'S FAILURE TO APPEAR AT AN ORDER OF POSSESSION HEARING, WHEN NO HEARING WAS REQUESTED BY THE APPELLEE. In this assignment plaintiff argues that the trial court erred by dismissing the case with prejudice after plaintiff failed to appear at the hearing. Plaintiff contends that (1) under the replevin statute it did not have to attend the hearing and (2) it - 4 - had moved to withdraw the motion which was the subject of the hearing. Plaintiff further points out that, although it has received possession of the car, the dismissal with prejudice forecloses plaintiff from pursuing the remaining claim for damages resulting from the breached lease agreement. We find merit to this assignment. The Ohio Supreme Court has routinely held that a court must give notice before dismissing a case with prejudice. The court in Perotti v. Ferguson (1983), 7 Ohio St.3d 1, stated in the syllabus as follows: Before a trial court may dismiss a case with prejudice for failure to appear at a pre-trial conference in accordance with local court rule, notice of the dismissal must be given to plaintiff's counsel pursuant to the provisions of Civ.R. 41(B)(1). The court went on to note that a basic tenet of Ohio jurisprudence is that cases should be decided on their merits and that the purpose of a notice requirement is to allow plaintiff to correct any defect or obey an order. Id at 3. See also, Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99, 101 ("A dismissal on the merits is a harsh remedy that calls for the due process guarantee of prior notice.") In the case at bar, no notice, express or implied, was given to plaintiff's counsel that the case would be dismissed with prejudice for failure of counsel to appear at the hearing. Thus the trial court dismissal was improper. Moreover, the harsh remedy of dismissal with prejudice was especially inappropriate because plaintiff had specifically requested that its motion, which was the - 5 - 1 expressed subject of the hearing, be withdrawn since it was moot. Accordingly, the trial court erred by dismissing the case with prejudice. Judgment reversed and remanded. 1 Even though, under R.C. 2737.06, a trial court can grant an order of possession without conducting a hearing, it was imprudent for plaintiff to assume without checking with the court that the hearing would be cancelled. - 6 - This cause is reversed and remanded. It is, therefore, considered that said appellant recover of said appellee its 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. JAMES M. PORTER, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE DIANE KARPINSKI, 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 .