Olynyk v. Scoles

• Decision Date: 27 June 2007
• Docket Number: No. 2006-0310.,No. 2006-0235.,2006-0235.,2006-0310.
• Citation: 2007 Ohio 2878,868 N.E.2d 254,114 Ohio St.3d 56
• Parties: OLYNYK, Appellee, v. SCOLES; Andrish, Appellant, et al.
• Court: Ohio Supreme Court

868 N.E.2d 254

114 Ohio St.3d 56

2007-Ohio-2878

OLYNYK, Appellee, v. SCOLES; Andrish, Appellant, et al.

No. 2006-0235.

No. 2006-0310.

Supreme Court of Ohio.

Submitted March 13, 2007.

Decided June 27, 2007.

Pheils & Wisniewski and David R. Pheils Jr., Perrysburg, for appellee.

Reminger & Reminger Co., L.P.A., Michelle J. Sheehan, Alan B. Parker, Cleveland, and Amy S. Thomas, Columbus, for appellant.

O'CONNOR, J.

{¶ 1} This appeal requires us to construe the "double-dismissal rule" of Civ.R. 41(A)(1). For the reasons that follow, we hold that the double-dismissal rule is not implicated in the circumstances of this case, and we affirm the judgment of the court of appeals.

Relevant Background

{¶ 2} In January 1997, plaintiff-appellee, Sarah Anastasia Olynyk, who was at that time a minor, filed, by and through her parents, a medical-negligence complaint in the Court of Common Pleas for Cuyahoga County against a number of defendants. In October 1997, Olynyk and her parents moved the trial court to dismiss the complaint without prejudice pursuant to Civ.R. 41(A)(2). On October 22, 1997, the trial court, in a journal entry, granted the Civ.R. 41(A)(2) motion to dismiss, and the case was "disposed without prejudice."

{¶ 3} In February 2002, Olynyk, as an adult, refiled a medical-negligence complaint against five doctors, including defendant-appellant, Jack T. Andrish, M.D. Three of the doctors were eventually dismissed as parties, leaving Dr. Andrish and another doctor as the two remaining defendants. In September 2003, the trial court granted summary judgment to both defendants. On appeal, the Eighth District Court of Appeals affirmed the trial court's judgment as to the other doctor, but reversed as to Dr. Andrish and remanded the cause for further proceedings. Olynyk v. Scoles, Cuyahoga App. No. 83525, 2004-Ohio-2688, 2004 WL 1171764.

{¶ 4} Upon remand, after considerable work by both sides in anticipation of trial, Olynyk filed a Civ.R. 41(A)(1)(a) notice of dismissal without prejudice in January 2005, shortly before the trial was set to begin. Later that month, the trial court issued a journal entry that provided, "As this is the second time this case has been DWOP [dismissed without prejudice], this case is DWP [dismissed with prejudice]."

{¶ 5} On appeal, the Eighth District Court of Appeals reversed the judgment of the trial court. The court of appeals reasoned that the January 2005 dismissal did not operate as "an adjudication upon the merits" pursuant to Civ.R. 41(A)(1)'s double-dismissal rule, because the 1997 dismissal was not a unilateral dismissal by the plaintiff under Civ.R. 41(A)(1)(a) ("notice dismissal"), but was a dismissal by order of court under Civ.R. 41(A)(2). Accordingly, the court of appeals held that the trial court had erred in ruling that the 2005 dismissal should function as a dismissal with prejudice. One judge, in concurring with the majority, also observed that upon Olynyk's 2005 filing of the Civ.R. 41(A)(1)(a) notice of dismissal, the trial court was immediately divested of jurisdiction over the merits of the case, and thus the trial court's order that the cause was dismissed with prejudice was invalid.

{¶ 6} The court of appeals then certified a conflict on the issue of whether the double-dismissal rule contained in Civ.R. 41(A) applies to a plaintiff's voluntary dismissal of claims pursuant to Civ.R. 41(A)(2). The court of appeals found that its resolution of that issue conflicted with the decision of the Fifth Appellate District in Van Beusecum v. Continental Builders, Inc., Delaware App. No. 04-CAE-01-008, 2004-Ohio-7261, 2004 WL 3090232.

{¶ 7} This court determined that a conflict exists (case No. 2006-0235), accepted jurisdiction over Dr. Andrish's discretionary appeal (case No. 2006-0310), and consolidated the two cases for consideration. 109 Ohio St.3d 1509, 2006-Ohio-2998, 849 N.E.2d 1029.

Analysis

{¶ 8} At issue in this case is what is commonly referred to as the "double-dismissal rule," which is contained in the last sentence of Civ.R. 41(A)(1).¹ The sentence setting forth the double-dismissal rule provides that a dismissal under Civ.R. 41(A) is generally without prejudice, but then states an exception to that rule—"a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court."

{¶ 9} "Civ.R. 41(A) establishes three mechanisms by which a plaintiff can voluntarily dismiss his or her own case" without prejudice. Frysinger v. Leech (1987), 32 Ohio St.3d 38, 42, 512 N.E.2d 337. First, the plaintiff can dismiss the case without approval of the court and without approval from any adverse party by simply filing a written notice of dismissal before the trial begins. Civ.R. 41(A)(1)(a). Second, the plaintiff can dismiss the case without court approval by filing a stipulation of dismissal agreed to by all parties. Civ.R. 41(A)(1)(b). Third, the plaintiff can ask the trial court to dismiss the case. Civ.R. 41(A)(2). Frysinger, 32 Ohio St.3d at 42-43, 512 N.E.2d 337. See, also, Chadwick v. Barba Lou (1982), 69 Ohio St.2d 222, 229, 23 O.O.3d 232, 431 N.E.2d 660. Each of the three methods places concrete limitations on the plaintiff's ability to refile his or her complaint. Frysinger, 32 Ohio St.3d at 42-43, 512 N.E.2d 337; Chadwick, 69 Ohio St.2d at 229, 23 O.O.3d 232, 431 N.E.2d 660.

{¶ 10} It is well established that when a plaintiff files two unilateral notices of dismissal under Civ.R. 41(A)(1)(a) regarding the same claim, the second notice of dismissal functions as an adjudication of the merits of that claim, regardless of any contrary language in the second notice stating that the dismissal is meant to be without prejudice. See, e.g., EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240, 2005-Ohio-5799, 841 N.E.2d 855, ¶ 32; Robinson v. Allstate Ins. Co., 8th Dist. No. 84666, 2004-Ohio-7032, 2004 WL 2980489, ¶ 29; Forshey v. Airborne Freight Corp. (2001), 142 Ohio App.3d 404, 408, 755 N.E.2d 969; Mays v. Kroger Co. (1998), 129 Ohio App.3d 159, 161-162, 717 N.E.2d 398; Internatl. Computing & Electronic Eng. Corp. v. Ohio Dept. of Adm. Servs. (May 9, 1996), 10th Dist. No. 95API11-1475, 1996 WL 239590. In that situation, the second dismissal is with prejudice under the double-dismissal rule, and res judicata applies if the plaintiff files a third complaint asserting the same cause of action. See 1970 Staff Note to Civ.R. 41 (When a 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").

{¶ 11} Because the double-dismissal rule specifically mentions "a notice of dismissal" when referring to the second dismissal, it is readily apparent that the second dismissal must be pursuant to Civ.R. 41(A)(1)(a) for the double-dismissal rule to operate. The issue in this case is whether the phrase in that last sentence of Civ.R. 41(A)(1) referring to the initial dismissal ("any claim that the plaintiff has once dismissed") countenances any previous dismissal initiated by a plaintiff under Civ.R. 41(A), or countenances only a previous dismissal under Civ.R. 41(A)(1)(a).

{¶ 12} Dr. Andrish argues that the literal phrasing of the rule as written—"any claim that the plaintiff has once dismissed"—conspicuously does not limit the first dismissal to only a notice dismissal. Therefore, Dr. Andrish argues, the rule should be interpreted so that a first dismissal satisfies the initial condition for the double-dismissal rule's operation whenever that first dismissal was "secured" by a plaintiff under any of the three dismissal mechanisms of Civ.R. 41(A). Dr. Andrish asserts that the rule should be called the "last-dismissal rule" rather than the "double-dismissal rule" to more accurately describe its application, and he urges this court to "enforce the rule as written."

{¶ 13} Olynyk counters by arguing that Civ.R. 41(A)(1)'s double-dismissal rule applies only when the first dismissal was also a notice dismissal under Civ.R. 41(A)(1)(a). As Olynyk points out, many appellate courts have held, as the court of appeals did in this case, that for the double-dismissal rule to apply, both dismissals must be notice dismissals under Civ.R. 41(A)(1)(a). A number of those decisions involved the same scenario as in this case, with the first dismissal by order of court under Civ.R. 41(A)(2) and the second dismissal a notice dismissal under Civ.R. 41(A)(1)(a). See, e.g., Heskett v. Paulig (1999), 131 Ohio App.3d 221, 225, 722 N.E.2d 142; Ham v. Park (1996), 110 Ohio App.3d 803, 813-814, 675 N.E.2d 505; Bowen v. Tony Perry Chevrolet (Aug. 16, 1995), 9th Dist. No. 2415-M, 1995 WL 499979, *3; Riley v. Med. College of Ohio Hosps. (1992), 83 Ohio App.3d 139, 141, 614 N.E.2d 788.

{¶ 14} Courts have further held in cases presenting slightly different scenarios that the double-dismissal rule operates only when two Civ.R. 41(A)(1)(a) notice dismissals are involved and not in other situations. See, e.g., Nemeth v. Aced, Hobbs, Wassell & O'Connor (Feb. 22, 1996), 10th Dist. No. 95APE06-768, 1996 WL 76319, *4 (double-dismissal rule does not apply when first dismissal was by stipulation); Hershiser v. BOS Corp. (1990), 69 Ohio App.3d 186, 189, 590 N.E.2d 323 (double-dismissal rule not triggered when first dismissal was by stipulation); Graham v. Pavarini (1983), 9 Ohio App.3d 89, 93-94, 9 OBR 140, 458 N.E.2d 421 (double-dismissal rule does not apply when neither dismissal was a notice dismissal).

{¶ 15} Some guidance in resolving the issue presented by this case can be gleaned from Chadwick, 69 Ohio St.2d 222, 23 O.O.3d 232, 431 N.E.2d 660, and Frysinger, 32 Ohio St.3d 38, 512 N.E.2d 337. Both of those cases concerned whether the saving statute, R.C. 2305.19, applies after a Civ.R. 41(A) dismissal to "save" the refiled action from being barred by the relevant statute of limitations. Neither case involved two dismissals—Chadwick...