Chadwick v. Barba Lou, Inc.

• Decision Date: 17 February 1982
• Docket Number: No. 81-344,81-344
• Citation: 23 O.O.3d 232,431 N.E.2d 660,69 Ohio St.2d 222
• Parties: , 23 O.O.3d 232 CHADWICK, Appellant, v. BARBA LOU, INC., Appellee.
• Court: Ohio Supreme Court

Page 222

69 Ohio St.2d 222

431 N.E.2d 660, 23 O.O.3d 232

CHADWICK, Appellant, v. BARBA LOU, INC., Appellee.

No. 81-344.

Supreme Court of Ohio.

Feb. 17, 1982.

Syllabus by the Court

A dismissal without prejudice of an action by order of the court upon motion of the plaintiff pursuant to Civ.R. 41(A)(2) is a "fail(ure) otherwise than upon the merits" for purposes of the savings statute, R.C. 2305.19.

On March 14, 1975, plaintiff-appellant, Thomas A. Chadwick, fell on concrete steps while leaving the Klip Inn, a bar operated by Barba Lou, Inc., defendant-appellee herein. On February 2, 1976, Chadwick filed a complaint alleging that his fall caused serious arm and shoulder injuries and was attributable to the negligence of the defendant.

The case was called for trial on September 28, 1977. Prior to commencement of trial, however, the plaintiff moved for a continuance on the grounds that a subpoened witness, the physician who treated the plaintiff following the fall, had failed to appear. The court denied plaintiff's motion to continue, suggesting that he choose between the alternatives of sending the sheriff out to physically compel the doctor's attendance, or dismissing the case and refiling later. Choosing the latter, the following entry was journalized:

"Entry

"Upon motion of the plaintiff, the within action is dismissed without prejudice to further action. At Plaintiff's Costs.

(Signed)

Frederick T. Williams, Judge

APPROVED

(Signed)_

Arthur H. Thomas, Jr.

Attorney for Plaintiff

(Signed)_

William L. Schmidt

Attorney for Defendant"

The instant action was commenced within a week of this entry. The defendant responded to the plaintiff's second complaint by filing a motion to dismiss, pursuant to Civ.R. 12(B)(6), asserting that the action was barred by the statute of limitations, R.C. 2305.10. The motion was overruled, the court determining that R.C. 2305.19, the savings statute, applied. The jury subsequently returned a verdict in favor of the plaintiff in the amount of $64,000.

The defendant filed a motion for judgment notwithstanding the verdict pursuant to Civ.R. 50(B). The motion, which was entertained by a different judge than had entertained the motion to dismiss, was granted. In its decision the court reasoned (1) that the dismissal of the prior complaint was not a "fail(ure) otherwise than upon the merits," hence R.C. 2305.19 did not apply to "save" the second suit, and (2) that the plaintiff had failed to produce evidence upon which a finding of actionable negligence could be made.

The Court of Appeals, in a split decision, affirmed the sustaining of defendant's motion for judgment notwithstanding the verdict.

The cause is before this court upon the allowance of a motion to certify the record.

Arthur H. Thomas, Jr., Worthinghton, and Michael D. Allen, for appellant.

Crabbe, Brown, Jones, Potts & Schmidt, William L. Schmidt and David J. Richards, Columbus, for appellee.

SWEENEY, Justice.

I.

This action was filed more than two years from the date plaintiff's cause of action accrued. Thus it is barred by R.C. 2305.10, the statute of limitations, unless it comes within the scope of R.C. 2305.19, the savings statute, or some other exception. R.C. 2305.19 provides, in part:

"In an action commenced * * * if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year after such date. * * * " (Emphasis added.)

Appellant herein contends that the dismissal of his prior action constituted a "fail(ure) otherwise than upon the merits" as that phrase is used in the statute, and that the instant action was timely filed under the authority of R.C. 2305.19.

Since the adoption of the Rules of Civil Procedure, the dismissal of actions is governed by Civ.R. 41. Civ.R. 41(A) ¹ governs dismissals initiated by the plaintiff. ² Under Civ.R. 41(A)(1)(a) the plaintiff may, in the absence of a dependent counterclaim, unilaterally dismiss his action before the commencement of trial simply by filing a notice of dismissal. Civ.R. 41(A)(1) (b) authorizes the dismissal of actions by stipulation of all parties. A dismissal under Civ.R. 41(A)(1), whether by notice or stipulation, is without prejudice "(u)nless otherwise stated in the notice of dismissal or stipulation," however, "a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim." Civ.R. 41(A)(2) provides for the dismissal of actions by order of the court upon plaintiff's motion to dismiss. Such a dismissal is subject to "such terms and conditions as the court deems proper," and is, by express provision of the rule, a dismissal without prejudice unless otherwise specified in the court's order.

The entry dismissing plaintiff-appellant's first action does not expressly designate the subdivision of Civ.R. 41 pursuant to which it was made. However, it is apparent that the dismissal was made under the authority of Civ.R. 41(A) (2). The entry expressly states that the dismissal was made "(u)pon motion of the plaintiff." It was signed by the judge and constituted an order of the court. ³

As noted supra, such a Civ.R. 41(A)(2) dismissal is without prejudice unless otherwise specified in the order. In this instance the order expressly provided that the dismissal was without prejudice. What effect, if any, does the fact that the dismissal was "without prejudice" have in determining whether it constituted a failure otherwise than upon the merits so as to bring the subsequently filed action within the scope of the savings statute?

The Staff Note to Civ.R. 41 provides some guidance. It reads, in part:

" * * * (Civ.R. 41) provides that voluntary or involuntary dismissal, depending upon the particular circumstances, may be with or without prejudice. If the dismissal is with prejudice, the dismissed action in effect has been adjudicated upon the merits, and an action based on or including the same claim may not be retried." (Emphasis added.)

Thus, an action dismissed "with prejudice" is vulnerable to the defense of res judicata. Neither the Rule itself nor the Staff Note pertinent thereto, however, expressly states the converse of the proposition, i.e., whether a dismissal without prejudice constitutes an action terminated "otherwise than upon the merits."

We find that this latter proposition is true. That dismissal "without prejudice" is one "otherwise than upon the merits" not only accords with what can reasonably be assumed to have been the understanding of the court and the parties, but also is consistent with the interpretation given the phrase generally. ⁴

Indeed, in Siegfried v. Railroad Co. (1893), 50 Ohio St. 294, 34 N.E. 331, the seminal Ohio case holding that a truly voluntary dismissal does not constitute a "fail(ure) otherwise than upon the merits" for purposes of the savings statute, the court assumed sub silentio that a voluntary dismissal is "otherwise than upon the merits." The issue in that case centered solely upon whether a voluntary, unilateral withdrawal by the plaintiff constituted a "failure" as that word was used in R.S. 4991 (predecessor of R.C. 2305.19). In Siegfried the court answered the question in the negative, holding that a voluntary dismissal is not a "failure" for purposes of R.S. 4991. The court reasoned " * * * (t)o fail, implies an effort or purpose to succeed. One cannot, properly, be said to fail in anything he does not undertake, nor, in an undertaking which he voluntarily abandons."

In a subsequent case, Cero Realty Corp. v. American Mfgs. Mutual Ins. Co. (1960), 171 Ohio St. 82, 167 N.E.2d 774, the court modified the Siegfried rule. The court held there that not all dismissals initiated by the plaintiff, are necessarily "voluntary" as that term was used in the Siegfried case. In Cero Realty, the plaintiff dismissed its action after its petition had twice been struck down on the defendants' demurrers. Upon refiling, the plaintiff asserted that its otherwise time-barred claims came within the savings statute. The court held that R.C. 2305.19 is to be "given a liberal construction to permit the decision of cases upon their merits rather than upon mere technicalities of procedure." Although the plaintiff elected to dismiss his cause, that election was not held to be "voluntary" because it was prompted by adverse court action. Because the dismissal was not truly voluntary, as had been the situation in Siegfried v. Railroad Co., supra, the dismissal was found to be a "failure" for purposes of R.C. 2305.19. ⁵

The most recent statement by this court pertaining to the issue at hand was made in Beckner v. Stover (1969), 18 Ohio St.2d 36, 247 N.E.2d 300. The syllabus to that case reads:

"A plaintiff has not 'failed otherwise than upon the merits,' within the meaning of Section 2305.19, Revised Code, where he has voluntarily dismissed his timely commenced action without prejudice in response to adverse rulings of the trial court, unless those rulings will prevent a trial of the cause upon its merits. * * * " ⁶

Notably, all three of the foregoing cases were decided prior to the adoption of the Rules of Civil Procedure. We believe that the line of cases beginning with Siegfried v. Railroad Co., supra, should be re-examined in light of those rules.

Prior to the adoption of the Civil Rules, dismissals were governed by statute. Under R.C. 2323.05 a plaintiff could dismiss his action at any time prior to its final submission to the jury or court. The court could order a dismissal in response to certain types of plaintiff misconduct. However, under this pre-Rule statutory procedure, these dismissals, whether voluntarily initiated by the plaintiff or resulting from the motion of the defendant or the court, could only be made without prejudice. Similarly, under...