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EMC Mortgage Corp. v. Jenkins11/1/2005
{ } In this appeal from a final judgment entry and decree of foreclosure entered by the Franklin County Court of Common Pleas on November 8, 2004, defendant-appellant, Otis L. Jenkins ("appellant"), assigns as error the trial court's denial of his motion to dismiss the underlying action initiated by plaintiff-appellee, EMC Mortgage Corporation ("EMC"). For the following reasons, we reverse the trial court's judgment.
{ } The underlying action is the third successive foreclosure action initiated against appellant in the Franklin County Court of Common Pleas, arising out of an adjustable rate note (the "note") and open-end mortgage (the "mortgage") which appellant allegedly executed on May 12, 2000, through a power of attorney. The Chase Manhattan Bank ("Chase") commenced the first two such actions, whereas EMC commenced the third action, from which appellant presently appeals.
{ } Chase filed the first foreclosure action against appellant (case No. 01CVE08-8447) on August 29, 2001, and dismissed that action by filing a notice of dismissal of its claims without prejudice on October 9, 2001. Chase re-filed its claims against appellant on November 13, 2001 (case No. 01CVE11-11249). On December 16, 2002, the date scheduled for trial of its re-filed claims, Chase filed a second notice of dismissal, pursuant to Civ.R. 41(A), purporting to dismiss its re-filed claims without prejudice.
{ } On December 19, 2002, EMC filed the third foreclosure action against appellant. In its complaint, EMC sought recovery on the same note and foreclosure of the same mortgage that formed the basis of Chase's prior cases. EMC became the holder of the note and mortgage by assignment while Chase's second foreclosure action was pending. Even though Chase and EMC were represented by the same counsel, EMC was not substituted as the plaintiff in the second foreclosure action, which remained pending in Chase's name until Chase voluntarily dismissed it on the date of trial.
{ } On April 24, 2003, appellant moved the trial court to dismiss EMC's complaint. Appellant argued that the court lacked jurisdiction over the matter because, pursuant to the two-dismissal rule set forth in Civ.R. 41(A)(1), Chase's voluntary dismissal of its second complaint constituted an adjudication on the merits of the claims now asserted by EMC. EMC opposed appellant's motion to dismiss. After a hearing on appellant's motion, the trial court denied the motion to dismiss and proceeded to trial on EMC's claims, after which the court entered judgment in EMC's favor.
{ } The trial court filed its final judgment entry and decree of foreclosure on November 8, 2004. Appellant timely appealed. Interlocutory orders, including the court's denial of appellant's motion to dismiss are merged into the final judgment; thus an appeal from the final judgment includes all interlocutory orders merged with it. Shaffer v. OhioHealth Corp., Franklin App. No. 04AP-236, 2004-Ohio-6523, at . Appellant asserts the following assignment of error:
THE COURT BELOW ERRED WHEN IT DENIED THE MOTION OF OTIS JENKINS' MOTION TO DISMISS AS PLAINTIFF HAD FILED THE ACTION TWICE PREVIOUSLY AND DISMISSED BOTH PRIOR ACTIONS PURSUANT TO Civ. R. 41(A).
{ } Civ.R. 41(A) governs voluntary dismissals of civil actions. Civ.R. 41(A)(1) provides for voluntary dismissal by the plaintiff and provides as follows:
(1) * * * Subject to the provisions of Civ. R. 23(E), Civ. R. 23.1, and Civ. R. 66, a plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant by doing either of the following:
(a) filing a notice of dismissal at any time before the comme
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