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EMC Mortgage Corp. v. Jenkins11/1/2005
on to dismiss into a motion for summary judgment was harmless and does not require reversal where, as here, all parties had a reasonable opportunity to present relevant evidence in support of their respective positions.
{ } In its decision and entry denying appellant's motion, the trial court found the two-dismissal rule, and thus the doctrine of res judicata, inapplicable based on its finding that the claims set forth in Chase's second complaint were not dismissed by the same plaintiff as the claims set forth in Chase's first complaint. The parties do not dispute the underlying facts. Rather, the only disputed issues concern whether the two-dismissal rule rendered Chase's second dismissal an adjudication on the merits and whether the doctrine of res judicata therefore bars EMC's claims. The applicability of res judicata is a question of law, which this court reviews de novo. Prairie Twp. Bd. of Trustees v. Ross, Franklin App. No. 03AP-509, 2004-Ohio-838, at .
{ } EMC raises various arguments as to why the two-dismissal rule does not preclude its claims. EMC argues that the two-dismissal rule is inapplicable because the first two actions against appellant were dismissed by Chase, a different plaintiff. EMC also argues that its claims differ from those alleged in the prior complaints. Lastly, EMC argues that the two-dismissal rule is inapplicable because appellant consented to the second dismissal. We will address each of EMC's arguments in turn.
{ } EMC first argues that the two-dismissal rule does not apply because EMC has not previously dismissed any claim against appellant. While we agree that EMC itself has not previously dismissed any claim against appellant, we disagree with EMC's contention that such fact renders the two-dismissal rule and the doctrine of res judicata inapplicable to its claims. Pursuant to Civ.R. 41(A)(1), "a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court." Civ.R. 41(A)(1) focuses on the plaintiff in the dismissed actions. It is undisputed that Chase filed and, by notice, voluntarily dismissed its claims against appellant for recovery on the note and mortgage in the first foreclosure action. It is further undisputed that Chase re-filed those claims in the second action and again filed a notice of voluntary dismissal of such claims. Thus, the plain language of Civ.R. 41(A)(1) suggests that Chase's second notice of voluntary dismissal operated as an adjudication upon the merits of Chase's claims against appellant, including claims for breach of the note and foreclosure of the mortgage now held by EMC.
{ } Nothing in Civ.R. 41(A) limits the preclusive effect of a second voluntary dismissal solely to the plaintiff who has twice dismissed. Rather, Civ.R. 41(A)(1) simply deems the claim twice dismissed adjudicated on the merits. If the adjudicated claim is again re-filed, principles of res judicata take over to determine whether the adjudication on the merits bars the re-filed claim.
{ } The Eighth District Court of Appeals has applied the two-dismissal rule and the doctrine of res judicata to bar a subrogee's claim after the subrogor twice dismissed its claims against a tortfeasor. See Ohio Dept. of Human Serv. v. Kozar (1995), 99 Ohio App.3d 713. In Kozar, the state, as subrogee of the estate of a deceased moped rider, brought an action against the driver of the automobile that fatally injured the rider, seeking to recover Medicaid benefits expended on behalf of the rider prior to his death. The rider's estate had previously commenced and voluntarily dismissed several actions against the driver for the rider's injuries and wrongful death. In the last of su
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