[Cite as Vinebrook Homes, L.L.C. v. Perkins, 2023-Ohio-3721.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

VINEBROOK HOMES, LLC,

 Plaintiff-Appellee,

 vs.

SARAH PERKINS, 

 and

CASSANDRA HORTON,

 Defendants-Appellants.

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APPEAL NOS. C-220538

 C-220539

TRIAL NO. 21CV-13406

 O P I N I O N.

Civil Appeals From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause 

Remanded

Date of Judgment Entry on Appeal: October 13, 2023

Greenberger & Brewer, LLP, and Kevin R. Brewer, for Plaintiff-Appellee,

Sarah Perkins and Cassandra Horton, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS

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BERGERON, Judge.

{¶1} Under Civ.R. 41(B)(1), before a court can involuntarily dismiss a party’s

claim or counterclaim with prejudice for failure to prosecute or to comply with a court 

order, the court must first notify the party that their noncompliance could lead to 

dismissal. Here, because the trial court in effect dismissed the counterclaims of 

defendants-appellants Sarah Perkins and Cassandra Horton (collectively, “Tenants”) 

against plaintiff-appellee Vinebrook Homes, LLC (“Vinebrook”) without notice when 

Tenants failed to show up for trial, we reverse for compliance with Civ.R. 41(B)(1). 

Additionally, we instruct the trial court to ensure that it returns to Tenants the $1,350 

rent bond held with the court, if it has not already done so. We otherwise affirm the 

trial court’s judgment entering a voluntary dismissal of Vinebrook’s damages claim 

and overrule Tenants’ remaining assignments of error.

I.

{¶2} As the trial court put it, the “high level of distrust” between Vinebrook 

and Tenants throughout this eviction dispute grew “into a mountain.” With competing 

damages claims and after multiple failed attempts to facilitate payments between the 

parties, the litigation marched towards a jury trial set for October 2022. When 

Tenants failed to appear for trial, however, the litigation snapped into a resolution: 

Vinebrook dropped its damages claim, and the court entered judgment for Vinebrook 

on Tenants’ counterclaims. As we shall see, however, Tenants were owed notice before 

the trial court could enter a final involuntary dismissal of their claims. 

{¶3} After Tenants held over their residential lease at a Cincinnati home in 

June 2021, Vinebrook, which managed the property at the time, served an eviction 

notice. Tenants continued their holdover, and the trial court issued an eviction order 
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in late July 2021 after a hearing that Tenants failed to attend. In exchange for a chance 

at a new eviction hearing, the court allowed Tenants to post a $1,350 rent bond with 

the court. Tenants did so, but their effort failed to alter the result—the court denied 

their motion for a new hearing on August 6 and granted Vinebrook restitution of the 

premises. Tenants vacated around August 8.

{¶4} Around the same time, Vinebrook added a damages claim for unpaid 

rent and fees, and Tenants counterclaimed against Vinebrook. By the time the case 

reached trial in October 2022, Vinebrook’s claim had shrunk to about $400. Tenants’ 

counterclaims, by contrast, had swelled to over $15,000, including demands for return 

of overpaid rent, their security deposit, their rent bond, and $10,000 for fraud and 

deceptive business practices. Prior to trial, and amid a flood of motions from Tenants, 

the trial court held a July 2022 hearing to sort out the situation. With a jury trial set 

for October 3, 2022, the trial court admonished Tenants that if the parties did not 

settle before then, “there will be no continuances,” and “[w]e’re going to go to trial and 

that’s going to be that.” 

{¶5} When their October 2022 trial date arrived, however, Tenants failed to 

show. Nonetheless, Vinebrook, in attendance, informed the court that it wished to 

voluntarily dismiss its claim. The court accordingly entered a voluntary dismissal 

without prejudice. At Vinebrook’s urging, the court also ordered the return of Tenants’ 

$1,350 rent bond. Going further, however, the court entered “judgment to the plaintiff 

on the defendants counterclaims.” 

{¶6} Days later, Tenants moved to set aside the judgment, explaining that 

their absence at trial arose from Ms. Horton’s congestive heart failure condition for 

which she received treatment in Cleveland in early September 2022. Providing hotel 
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receipts, Tenants asked the court to set aside its judgment because Ms. Horton 

recuperated at a hotel in Cleveland after her treatment (and under the watchful eye of 

her doctors) through at least early October.

{¶7} But before the trial court could consider the motion, however, Tenants

submitted two notices of appeal, one regarding the final judgment entry and one 

regarding a judgment entry of October 6, 2022. An entry for that date does not appear 

in the record, but it corresponds with the date of Tenants’ motion to set aside. Tenants’ 

first and third assignments of error broadly challenge the trial court’s judgment on 

their counterclaims, its entry of voluntary dismissal of Vinebrook’s claim, and the fact 

that the court entered dismissal without prejudice. In essence, they argue the trial 

court resolved the case prematurely without fully accounting for money owed to 

Tenants. We consider these arguments together. Finally, Tenants contend in their 

second assignment of error that the court erred in allowing concurrent litigation and 

collections activity.

II.

{¶8} Across their first and third assignments of error, Tenants claim the trial 

court erred in entering a voluntary dismissal, without prejudice, of Vinebrook’s 

damages claim. In essence, Tenants argue that the case was resolved prematurely and 

that the court should have continued the full case for complete resolution. The trial 

court entered its dismissal of Vinebrook’s damages claim after its lawyer orally 

expressed its willingness to voluntarily dismiss on the day of trial. This form of 

dismissal is permitted under Civ.R. 41(A)(2). However, in the event that “a 

counterclaim has been pleaded by a defendant prior to the service upon that defendant 

of the plaintiff’s motion to dismiss, a claim shall not be dismissed against the 
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defendant’s objection unless the counterclaim can remain pending for independent 

adjudication by the court.” Civ.R. 41(A)(2). In other words, “the motion should be 

granted when the defendant will not be prejudiced thereby, except by the prospect of 

a second lawsuit.” Thompson v. Markham, 1st Dist. Hamilton No. C-880034, 1989 

Ohio App. LEXIS 2927, 3 (July 26, 1989). Voluntary dismissals by order of court are 

without prejudice unless otherwise specified. Civ.R. 41(A)(2). 

{¶9} In reviewing the court’s entry of voluntary dismissal, we apply an abuse 

of discretion standard. Thompson at 3 (“The determination of a motion for voluntary 

dismissal under Civ. R. 41(A)(2) is generally within the sound discretion of the trial 

court.”). Abuse of discretion occurs when “a court exercis[es] its judgment, in an 

unwarranted way, in regard to a matter over which it has discretionary authority.” 

Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. 

{¶10} Although Tenants do not explicitly claim that dismissing Vinebrook’s 

damages claim caused them any prejudice in pursuit of their counterclaim, we can 

piece together such an argument from their brief. But our review of the record fails to 

substantiate the point. Through its damages claim, Vinebrook sought to recover 

unpaid rent and fees. Tenants’ counterclaim asserts the opposite—Vinebrook (and the 

court) owes them, not the other way around. But Tenants offers no means by which 

dismissal of Vinebrook’s damages claim prejudices them in prosecuting their 

counterclaim. In other words, Tenants’ counterclaim in no way depends upon the 

survival of Vinebrook’s damages claim. Furthermore, the default disposition of a 

voluntary dismissal under Civ.R. 41(A)(2) is to dismiss without prejudice, and Tenants 

advance no argument for why the court should have departed from that presumption. 
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Therefore, we cannot say that the trial court abused its discretion in dismissing 

Vinebrook’s claim without prejudice.

III.

{¶11} Tenants missed their chance to present their counterclaims at trial by 

failing to appear. But failing to prosecute one’s claims by missing a key hearing or trial 

date does not necessarily permit the court to involuntarily dismiss the claims without 

further discussion. Between their first and third assignments of error, Tenants 

additionally assert that the trial court erred in entering judgment for Vinebrook as a 

consequence of their no-show. They’re correct, at least in procedural terms. 

{¶12} Civ.R. 41(B)(1) permits the trial court, “after notice to the plaintiff’s 

counsel,” to involuntarily dismiss a plaintiff’s claim when the plaintiff “fails to 

prosecute, or comply with these rules or any court order.” “[W]here a plaintiff fails to 

appear on the date set for a hearing, the court may either order a Civ. R. 41(B)(1) 

dismissal or grant a continuance. There is no authority in the Civil Rules for 

proceeding to a trial on the merits of the plaintiff’s claim in his absence.” Allstate Ins. 

Co. v. Rule, 64 Ohio St.2d 67, 69, 413 N.E.2d 796 (1980). Although Tenants here were 

defendants in the underlying eviction proceedings, they act as plaintiffs in pursuing 

their counterclaims, and Civ.R. 41 treats counterclaims as “claims” for purposes of 

involuntary dismissal. Civ.R. 41(C). Subject to narrow exceptions not applicable here, 

involuntary dismissals under Civ.R. 41(B)(1) constitute adjudications on the merits 

(i.e., with prejudice). Civ.R. 41(B)(3).

{¶13} As an initial matter, we can fairly construe the trial court’s “judgment” 

for Vinebrook on Tenants’ counterclaims as an involuntary dismissal under Civ.R. 

41(B)(1). The effect of involuntary dismissal and the court’s judgment is the same—
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Tenants lose on their counterclaims with prejudice and are unable to bring them again. 

And an involuntary dismissal, rather than a judgment for Vinebrook, better reflects 

the nature of the court’s decision. Rather than a default judgment, which the court 

can award when defendants fail to appear for trial, an involuntary dismissal is 

appropriate when claimants fail to prosecute their claim, or, in this instance, their 

counterclaim. We therefore treat the trial court’s October 3, 2022 judgment entry as 

an involuntary dismissal, with prejudice, of Tenants’ counterclaims against Vinebrook 

under Civ.R. 41(B)(1). 

{¶14} “We review a decision to dismiss a case pursuant to Civ.R. 41(B)(1) for 

an abuse of discretion, and dismissals with prejudice are subject to heightened 

scrutiny.” Williams v. Metro, 1st Dist. Hamilton No. C-190321, 2020-Ohio-3515, ¶ 23. 

Abuse of discretion occurs when “a court exercis[es] its judgment, in an unwarranted 

way, in regard to a matter over which it has discretionary authority.” Johnson, 166 

Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, at ¶ 35. Because a court “does not 

have discretion to apply the law incorrectly,” however, we apply a de novo standard 

when reviewing issues of law. Id. at ¶ 38. Although the court has discretion whether 

to enter an involuntary dismissal upon a party’s failure to prosecute under Civ.R. 

41(B)(1), it must comply with the rule’s notice requirement if it chooses to do so. 

Therefore, although we review the trial court’s decision whether to enter an 

involuntary dismissal for an abuse of discretion, we review its compliance with Civ.R. 

41(B)(1)’s notice requirement de novo.

{¶15} “Generally, notice is a prerequisite to dismissal for failure to prosecute 

under Civ.R. 41(B)(1). Hence, ‘[i]t 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 
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trial on the assigned trial date.’ ” Logsdon v. Nichols, 72 Ohio St.3d 124, 128, 647 

N.E.2d 1361 (1995), quoting John W. McCormac, Ohio Civil Rules Practice, Section 

13.07, at 356-357 (2d Ed.1992); see Dlouhy v. Frymier, 92 Ohio App.3d 156, 161, 634 

N.E.2d 649 (9th Dist.1993) (“The notice requirement is an absolute prerequisite for 

dismissal for failure to prosecute.”). Furthermore, “the notice requirement of Civ.R. 

41(B)(1) applies to all dismissals with prejudice.” (Emphasis sic.) Ohio Furniture Co. 

v. Mindala, 22 Ohio St.3d 99, 101, 488 N.E.2d 881 (1986). For pro se litigants with 

claims subject to dismissal under this rule, “notice of the intended dismissal [is] 

required to be sent to [claimant] himself.” Perotti v. Ferguson, 7 Ohio St.3d 1, 3, 454 

N.E.2d 951 (1983). 

{¶16} Notice under Civ.R. 41(B)(1) can be express or implied. Quonset Hut, 

Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 49, 684 N.E.2d 319 (1997), citing Logsdon

at 129 (Cook, J., concurring in part and dissenting in part); see Producers Credit Corp. 

v. Voge, 12th Dist. Preble No. CA2002-06-009, 2003-Ohio-1067, ¶ 19 (“[I]mplied 

notice of a trial court’s intention to dismiss exists when a party is on notice that the 

opposing party has requested dismissal.”); Williams at ¶ 26, citing Quonset Hut, Inc.

at 47-48 (“A plaintiff has adequate notice under Civ.R. 41(B) when the defendant filed 

a motion to dismiss with prejudice, the plaintiff filed a responsive motion, and the 

plaintiff did not take any later steps to correct the noncompliance.”). However, merely 

scheduling a case for trial and providing notice of the date to the claimant is 

insufficient to constitute actual or implied notice under Civ.R. 41(B)(1). Logsdon at 

128-129 (rejecting the partial concurrence’s argument to the contrary). To further 

understand the rule’s notice requirement, we derive additional guidance from its

ascribed purpose. “The purpose of notice is to ‘provide the party in default an 
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opportunity to explain the default or to correct it, or to explain why the case should 

not be dismissed with prejudice.’ * * * Notice allows the dismissed party to explain the 

circumstances causing his or her nonappearance.” Logsdon at 128, quoting 

McCormac, Section 13.07, at 357. In sum, when a party fails to appear for trial but has 

not received notice that their failure to appear would result in involuntary dismissal, 

the court owes the party an opportunity to explain their absence, effectively giving 

notice, prior to entering the dismissal. If the court is then satisfied with the 

explanation, it can instead continue the case.

{¶17} Here, neither Vinebrook nor the trial court provided Tenants actual or 

implied notice of the court’s intent to involuntarily dismiss their counterclaims. On 

the day of trial, Tenants failed to appear, and the court effectively dismissed Tenants’ 

counterclaims contemporaneously. Seemingly acknowledging that the requirements 

of Civ.R. 41(B) apply here, Vinebrook assures us that Tenants actually received notice, 

pointing to two different sources in the record. First, it emphasizes the trial court’s 

October 2021 entry setting a case management conference for December 2021, in 

which the trial court notes “[f]ailure to appear will be grounds for dismissal and/or 

default.” However, this order put Tenants on notice only about the consequences for 

missing that case management conference, not the trial, which was eventually 

scheduled to occur about a year later. Second, Vinebrook refers us to the trial court’s

admonishment to Tenants at the July 2022 motions hearing, described above in Part 

I. But warning Tenants that “there will be no continuances,” and “[w]e’re going to go 

to trial and that’s going to be that,” fails to provide Tenants with direct or implied 

notice that their failure to appear at trial would result in involuntary dismissal of their 

counterclaims. Furthermore, Vinebrook did not move for involuntary dismissal due 
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to Tenants’ failure to appear at trial prior to the court’s final judgment. Therefore, 

Tenants lacked explicit or implied notice. 

{¶18} Because Tenants lacked sufficient notice prior to missing the trial date, 

we conclude that Tenants were owed at least an opportunity to explain their failure to 

appear at trial and for the trial court to take their argument into consideration prior to 

deciding whether to enter an involuntary dismissal of their counterclaims. See 

Logsdon, 72 Ohio St.3d at 128, 647 N.E.2d 1361. Instead, the trial court immediately 

entered its final judgment, which we construe as an involuntary dismissal, on Tenants’ 

counterclaims without affording them a chance to be heard. Therefore, we sustain 

Tenants’ first and third assignments of error only insofar as they challenge the court’s 

failure to comply with Civ.R. 41(B)(1)’s notice provision. They are overruled in all 

other respects.

IV.

{¶19} Finally, Tenants’ second assignment of error faults the court for 

allowing collections activity to occur during the course of this litigation. Although we 

acknowledge the burden of compounding financial and legal troubles, the legal basis 

for Tenants’ assignment of error remains unclear. Tenants cite one case, Mazzarella 

v. McGinnes, Cleveland M.C. No. 91-CVG-30291 (Dec. 30, 1991), without explaining 

its relevance. A review of that case reveals no potential applicability to Tenants’ claim. 

“An appellate court may disregard an assignment of error presented for review ‘if the 

party raising it fails to identify in the record the error on which the assignment of error 

is based.’ ” Fontain v. Sandhu, 1st Dist. Hamilton No. C-200011, 2021-Ohio-2750, ¶ 

14, quoting App.R. 12(A)(2); App.R. 16(A). Because Tenants failed to identify a legal 

basis for their argument, we overrule their second assignment of error.
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* * *

{¶20} Ultimately, we sustain in part and overrule in part Tenants’ first and 

third assignments of error. We reverse only the trial court’s judgment for Vinebrook 

on Tenants’ counterclaims and remand solely for the purpose of allowing Tenants 

notice consistent with Civ.R. 41(B) and a reasonable opportunity to explain their 

absence at trial. Upon consideration of Tenants’ arguments, the trial court should 

ultimately decide whether to enter the involuntary dismissal of Tenants’ counterclaims 

or to continue the case for a new trial date. In conjunction with its decision, the trial 

court should resolve Tenants’ motion to set aside the default judgment. We affirm the 

trial court’s voluntary dismissal of Vinebrook’s damages claim and overrule Tenants’ 

second assignment of error regarding collections activity. Finally, to the extent that it 

hasn’t already, the trial court should ensure that it returns Tenants’ $1,350 rent bond, 

as agreed upon by the parties and the court. 

Judgment affirmed in part, reversed in part, and cause remanded.

ZAYAS, P.J., and KINSLEY, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.