Standard Oil Co. v. Grice

• Decision Date: 20 August 1975
• Citation: 345 N.E.2d 458,46 Ohio App.2d 97,75 O.O.2d 81
• Parties: , 75 O.O.2d 81 STANDARD OIL COMPANY, Appellee, v. GRICE, Admx., et al., Appellee, Indiana Insurance Company, Appellant.
• Court: Ohio Court of Appeals

Page 97

46 Ohio App.2d 97

345 N.E.2d 458, 75 O.O.2d 81

STANDARD OIL COMPANY, Appellee, v. GRICE, Admx., et al., Appellee, Indiana Insurance Company, Appellant.

Court of Appeals of Ohio, Second District, Darke County.

Aug. 20, 1975.

Syllabus by the Court

Under Civil Rule 41, a voluntary dismissal before the commencement of trial is timely if it is filed after an adverse decision on the merits but before such decision is journalized.

Squire, Sanders & Dempsey, George I. Meisel, Cleveland, and Marchal & Marchal, Greenville, for appellee.

Dorfmeier, Schmidt & Stone, Dayton, for appellee, Lois L. Grice, Admx.

F. Thomas Green, Dayton, for appellant.

McBRIDE, Judge.

In the within appeal, both the plaintiff, The Standard Oil Company, and defendant Indiana Insurance Company have formally dismissed their claim and counterclaim. The issue is whether the dismissal by Indiana Insurance Company was voluntary or involuntary and with or without prejudice. The entanglements leading to the issue prompted the trial judge to comment that although it was of no importance to the decision the activities of counsel were trying the patience of the court.

Indiana Insurance Company, the appellant and counterclaimant below, assigned three items of error. The first assignment claims error in the overruling of Indiana's motion to require Standard to answer interrogatories as to the identity of Standard's employees. Since the subsequent assignments of error are sustained, decisions to earlier skirmishes of counsel were waived by appellant by its voluntary dismissal. For this reason the first assignment is denied.

The two remaining assignments relate to the terminal process and will be discussed together. It appears that Indiana served notice of the voluntary dismissal of its counterclaim after an adverse opinion, but before the filing of a judgment entry on the motion of plaintiff to dismiss, or in the alternative for a summary judgment on Indiana's counterclaim. Thereafter, a judgment entry was filed dismissing Indiana's counterclaim on the merits. Indiana asserts in Item 2 that the dismissal by the court on the merits was in error and in Item 3 that the striking of Indiana's earlier voluntary dismissal of its counterclaim was also in error and prejudicial.

Questions are raised as to whether the motion to dismiss was timely filed and whether the decision of the trial court was on the motion to dismiss or on the alternate motion for summary judgment; however, as indicated in discussing the first assignment, the preliminary complaints fell by the wayside upon the filing of a voluntary termination by the appellant.

Was the trial court wrong in striking the appellant's notice of voluntary termination and replacing it with an entry on the decision on the plaintiff's motion which amounted to a judgment on the merits? The answer lies in Civil Rule 41(A)(1) and (C).

The voluntary dismissal was served after the court rendered an adverse opinion on the merits, but before such opinion was journalized. The plaintiff argues that a party cannot avoid the impending res judicata effect of a decision by way of a voluntary dismissal before a decision of the court is journalized. Plaintiff also urges that the submission on a motion for summary judgment should be considered the same as the commencement of trial so as to prevent a voluntary dismissal by a party.

Civil Rule 41(A)(1) provides:

'* * * an action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial * * * (Emphasis added.)

Under Fed.R.Civ.P. 41, such dismissal may be made:

'* * * by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs * * *.' (Emphasis added.)

The modification of the federal rule is so obvious that no reference has been found in the staff notes on plaintiff's argument that the court may change the time requirement for filing a notice of voluntary dismissal from the commencement of the trial to an earlier moment in the proceedings.

We find it helpful to refer to minutes and personal notes of the civil rules committee. The original draft of Rule 41, prepared by a subcommittee, contained the language of the federal rule. Objections were expressed by attorney members to the proposed time limitation upon the right of a claimant to voluntarily dismiss his action without...