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Baysinger v. Home Developers3/29/2001
The Ohio Supreme Court in Hensley v. Henry (1980), 61 Ohio St.2d 277, addressed this exact issue. The Supreme Court held:
Unless plaintiff's Civ.R. 41(A)(1)(a) notice of dismissal operates as an adjudication upon the merits under Civ.R. 41(A)(1), it is not a final judgment, order or proceeding, within the meaning of Civ.R. 60(B). Id. at syllabus.
In the case before us, the voluntary dismissal of the action did not operate as an adjudication upon the merits because plaintiff had not previously dismissed the action. Although the voluntary dismissal was filed twice, once the case was voluntarily dismissed the first time, it was not refiled prior to the subsequent second dismissal. In fact, the second dismissal is a nullity because the case was already dismissed prior to the filing of the second voluntary dismissal. Therefore, pursuant to Hensley, supra, the trial court properly denied the plaintiff's Civ.R. 60(B) motion to vacate the dismissal. See, also, Sayre v. Valley Ford Truck Sales, Inc. (Aug. 17, 2000), Cuyahoga App. No. 76515, unreported.
The dismissal was clearly entered pursuant to Civ.R. 41(A)(1)(a), in spite of plaintiff's contention that the motion was dismissed by the court pursuant to Civ.R. 41(A)(2). The two motions explicitly state that they are motions for voluntary dismissal and were signed by counsel on behalf of plaintiff.
Since the trial court lacked jurisdiction to vacate a non-final order, the remaining arguments raised by the appellant are moot and need not be addressed.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIMOTHY E. McMONAGLE, P.J. and KENNETH A. ROCCO, J., CONCUR
COLLEEN CONWAY COONEY JUDGE
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