Ross-Voet v. Neighborhood Properties, Inc.

[Cite as Ross-Voet v. Neighborhood Properties, Inc., 2026-Ohio-3781.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY Dametris Ross-Voet Court of Appeals No. {48}L-26-00028 Appellant Trial Court No. CVG-25-9366 v. Neighborhood Properties, Inc. DECISION AND JUDGMENT Appellee Decided: September 25, 2026 ***** Dametris Ross-Voet, pro se. Jessica L. Densic, for appellee. ***** DUHART, J. {¶ 1} This is an appeal by appellant, Dametris Ross-Voet (“Tenant”), from the December 29, 2025 judgment of the Toledo Municipal Court (“trial court”), wherein the trial court dismissed the matter for want of prosecution. For the reasons that follow, we reverse the trial court’s judgment. {¶ 2} Tenant sets forth two assignments of error: FIRST ASSIGNMENT OF ERROR: The trial court erroneously abused its discretion in dismissing [Tenant’s] action based on the want of prosecution which contradicts [Tenant’s] intentions and demonstrations to prosecute through participation, submittance of preponderous evidence and remedy [sic].  SECOND ASSIGNMENT OF ERROR: The trial court has gone beyond the bounds of legal reasoning that has led to arbitrary resolution, partiality and lack of fairness in court proceeding outcomes. The trial court lacked Impartiality and Fairness/Failing in ensuring [Tenant’s] right to be heard, creating a judicial environment of intimidation, bias and unfairness, causal to the plaintiff to litigate effectively [sic]. Background {¶ 3} On June 3, 2025, Tenant filed an application for tenant rent escrow in the trial court alleging that appellee, Neighborhood Properties, Inc. (“Landlord”), failed to remedy certain problems with the rental property that Tenant leased from Landlord. {¶ 4} On September 9, 2025, a rent escrow hearing was held in the trial court before Magistrate Morgan. On September 22, 2025, Magistrate Morgan issued a judgment entry in which he set forth, inter alia, that the parties had reached an agreement on the record at the rent escrow hearing. A trial date of November 4, 2025, was scheduled in case the parties did not fulfill the terms of the agreement. At some point thereafter, it became apparent that the parties did not honor their agreement. {¶ 5} On November 4, 2025, Tenant and Landlord’s attorney were present in the trial court, but Magistrate Morgan was unavailable, so the trial court judge rescheduled the hearing for November 10, 2025. {¶ 6} On November 10, 2025, Tenant and Landlord’s attorney were present in the trial court with Magistrate Michalak presiding. Tenant requested a trial. Magistrate Michalak stated he wanted to take the parties’ arguments under advisement “[b]ecause [he] ha[d] an indication that maybe there was an agreement prior to trial and that the agreement may not have been met. So that’s what [he] wanted to look into.” On 2. November 20, 2025, Magistrate Michalak filed an order in which he set forth, inter alia, that a hearing would be held on December 11, 2025. {¶ 7} On December 11, 2025, a hearing was held on Tenant’s rent escrow application before Magistrate Michalak. Tenant questioned two witnesses at which time the magistrate directed that the hearing had to end for the day. Since Tenant indicated, inter alia, that she was not finished questioning the second witness, the magistrate continued the hearing until December 22, 2025, at 1:00 p.m. {¶ 8} On December 22, 2025, the record shows that neither Tenant nor Landlord’s counsel appeared for the continuation of the rent escrow application hearing. In the December 29, 2025 magistrate’s decision, Magistrate Michalak set forth that the December 22, 2025 hearing was scheduled to begin at 1:00 p.m., but no one appeared by 1:15 p.m. The magistrate also noted that Tenant “called the court saying she would be 45 min[.] late.” {¶ 9} Also on December 29, 2025, the trial court judge issued a judgment entry in which he set forth that on December 22, 2025, when the matter was called for Tenant to conclude her case, neither Tenant nor Landlord’s counsel were present. The judge therefore ordered that the case be dismissed for want of prosecution. {¶ 10} Tenant appealed. First Assignment of Error {¶ 11} Tenant argues the trial court dismissed the case pursuant to Civ.R. 41(B)(1), which requires that notice be provided to a plaintiff before a trial court can dismiss an 3. action, but the record does not indicate that the trial court provided any notice to Tenant of its intent to dismiss the case. {¶ 12} Tenant asserts that she has been actively pursuing prosecution, as she attended the four previous trial court proceedings, in addition to a mediation. She acknowledges that the sixth proceeding, scheduled for December 22, 2025, is the exception.1 Then, on December 29, 2025, Tenant asserts that the escrow case was mooted. Standard of Review {¶ 13} The power to dismiss a case for lack of prosecution is within the sound discretion of the trial court. Pembaur v. Leis, 1 Ohio St.3d 89, 91 (1982). An appellate court may not reverse a dismissal order unless the complainant demonstrates the court abused its discretion in entering the dismissal. An abuse of discretion connotes more than the trial court’s attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Law {¶ 14} Civ.R. 41(B) entitled “Involuntary Dismissal: Effect Thereof,” states in pertinent part: (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. ... 1 Tenant offers an explanation for her failure to attend the court proceeding, but the explanation is not a part of the trial court record, so we are unable to consider same. 4.  (3) Adjudication on the Merits; Exception. A dismissal under division (B) of this rule . . . operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies. {¶ 15} When a party fails to appear on the date set for a hearing, the trial court may order a dismissal under Civ.R. 41(B)(1). Allstate Ins. Co. v. Rule, 64 Ohio St.2d 67, 69 (1980). “As an indispensable prerequisite to the dismissal, however, the plain language of Civ.R. 41(B)(1) requires that plaintiff’s counsel [or a plaintiff proceeding pro se] be given notice of the intended dismissal.” Perotti v. Ferguson, 7 Ohio St.3d 1, 2-3 (1983). {¶ 16} “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.’ [McCormac, Ohio Civil Rules Practice, § 13.07, at 357 (2d Ed. 1992)].” Logsdon v. Nichols, 72 Ohio St.3d 124, 128 (1995). Analysis {¶ 17} A review of the record shows that Tenant was not notified of the trial court’s intent to dismiss the case prior to the dismissal for want of prosecution. Rather, the record reflects that the trial court judge, in the December 29, 2025 judgment entry, set forth that when the matter was called for Tenant to conclude her case, on December 22, 2025, Tenant was not present, nor was Landlord’s counsel, so the case was ordered dismissed for want of prosecution. We find that Tenant is owed the opportunity to explain to the trial court her failure to appear, to correct the situation, or to explain to the trial court why the case should not be dismissed with prejudice. Accordingly, we sustain Tenant’s first assignment of error. 5.  {¶ 18} Since the dismissal entered in this case was in violation of the provisions of Civ.R. 41(B)(1), the judgment dismissing the case is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion. {¶ 19} In light of our finding regarding Tenant’s first assigned error, the second assignment of error is rendered moot. Thus, we need not address it. See App.R. 12(A)(1)(c). {¶ 20} Judgment reversed and cause remanded. Judgment reversed and remanded. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. Christine E. Mayle, J. JUDGE Myron C. Duhart, J. JUDGE Charles E. Sulek, J. CONCUR. JUDGE This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/. 6.