Haller v. Goodyear Tire & Rubber Co.6/26/2002
. We will discuss each in turn.
A.
First Assignment of Error
"THE TRIAL COURT ERRED IN FAILING TO GRANT SUMMARY JUDGMENT IN FAVOR OF THE APPELLANT."
In its first assignment of error, Goodyear asserts that the trial court erred in denying its motion for summary judgment, as Ms. Haller's complaint in Haller III was barred by res judicata due to the operation of the "two-dismissal rule" of Civ.R. 41(A)(1)(a). For the reasons that follow, we disagree.
Civ.R. 41(A)(1)(a) allows a plaintiff to voluntarily dismiss all of his or her claims against a defendant, without approval of the court or any adverse party, by filing a notice of dismissal prior to trial, unless the case involves a counterclaim which cannot be independently adjudicated. Frysinger v. Leech (1987), 32 Ohio St.3d 38, 42; Civ.R. 41(A)(1)(a). Unless otherwise stated in the notice of dismissal, the first Civ.R. 41(A)(1) dismissal is without prejudice and renders the parties specifically named in the dismissal as if no suit had ever been filed. Denham v. New Carlisle (1999), 86 Ohio St.3d 594, 596; Civ.R. 41(A)(1). Unlike a first Civ.R. 41(A)(1) dismissal, a second dismissal under the rule "operates as an adjudication upon the merits[.]" Civ.R. 41(A)(1). Consequently, the third filing of the same action is barred by res judicata. Forshey v. Airborne Freight Corp. (2001), 142 Ohio App.3d 404, 411.
Civ.R. 41(A)(2), on the other hand, does not allow a party to dismiss an action without any court intervention and provides for a dismissal by order of the court upon such terms and conditions that the court deems proper. "If a party who filed a notice of dismissal under Civ.R. 41(A)(1) in a previous action files a second action based on or including the same claim and then wishes to dismiss the second action, [the party] is required to obtain a dismissal under Civ.R. 41(A)(2) in order to preserve the right to refile." Ham v. Park (1996), 110 Ohio App.3d 803, 813.
In the present case, both parties concede that, unless the nunc pro tunc entry rendering the dismissal in Haller II pursuant to Civ.R. 41(A)(2) is valid, the June 3, 1998 dismissal filed in Haller II was the second dismissal for the purposes of Civ.R. 41(A)(1) and, therefore, operated as an adjudication upon the merits. Consequently, on appeal, Goodyear has set forth several arguments challenging the propriety of the nunc pro tunc entry. In response, Ms. Haller has argued that, by failing to timely appeal the nunc pro tunc order, Goodyear waived its right to challenge that decision. We agree with Ms. Haller.
Before an appellate court can exercise its appellate jurisdiction, the order being appealed must be a final order, pursuant to R.C. 2505.02, and appealable, pursuant to R.C. 2505.03. Harkai v. Scherba Industries, Inc. (2000), 136 Ohio App.3d 211, 219. R.C. 2505.02 defines "final orders," Dunn v. Westlake (1991), 61 Ohio St.3d 102, 108, and provides in relevant part: " n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * n order that vacates or sets aside a judgment or grants a new trial[.]" R.C. 2505.02(B)(3). Significantly, a second dismissal pursuant to Civ.R. 41(A)(1) operates as an adjudication upon the merits and, therefore, is a final judgment, order, or proceeding, which is appealable under R.C. 2505.03. See Tower City Properties v. Cuyahoga Cty. Bd. of Revision (1990), 49 Ohio St.3d 67, 69. Consequently, by changing the June 3, 1998 dismissal from a second Civ.R. 41(A)(1) dismissal to a Civ.R. 41(A)(2) dismissal in the nunc pro tunc entry, the trial court in Haller II effectively vacated or set aside a final judgment. See R.C. 2
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