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EMC Mortgage Corp. v. Jenkins11/1/2005
rising out of the transaction or occurrence that was the subject matter of the previous action." Grava at syllabus. The fact that a number of different legal theories may cast liability on an actor arising out of a given episode does not create multiple transactions or claims. Id. at 382, citing Comment c to 1 Restatement of the Law 2d, Judgments (1982), Section 24(1), at 200. EMC's claim for unjust enrichment arises out of the same transaction or occurrence as the claims for breach of the note and foreclosure asserted in Chase's previous complaints and re-asserted by EMC herein. EMC's unjust enrichment claim is based on the allegation that appellant was enriched by the proceeds of the loan underlying the note and mortgage and that such enrichment would be unjust in the absence of payment by appellant. Because EMC's unjust enrichment claim arises out of the same transaction or occurrence as the foreclosure claims previously asserted against appellant, the doctrine of res judicata, if otherwise applicable, bars litigation of EMC's unjust enrichment claim as well as its other claims.
{ } In its final argument, EMC suggests that, at the time of Chase's second dismissal, both appellant and the trial court understood that the action would be re-filed. Therefore, EMC argues that the second dismissal does not implicate the two-dismissal rule. Civ.R. 41(A) provides for three types of voluntary dismissals: (1) by notice, (2) by stipulation, and (3) by court order. For the two-dismissal rule to apply, both dismissals must be Civ.R. 41(A)(1)(a) dismissals by notice. Internatl. Computing & Electronic Eng. Corp. v. Ohio Dept. of Adm. Serv. (May 9, 1996), Franklin App. No. 95API11-1475. The two-dismissal rule does not apply where the second dismissal is made by stipulation of the parties or by court order. Rather, Ohio courts have held that the rule applies only to unilateral notices of dismissal filed by the plaintiff. Luciani v. Schiavone (C.A.6, 2000), 210 F.3d 372 (Unpublished Opinion, 2000 WL 331974).
{ } In support of its argument that the second dismissal was not a unilateral dismissal by notice, EMC points to the affidavit filed in opposition to appellant's motion to dismiss. EMC's counsel, Thomas L. Henderson, who represented Chase in the second foreclosure action and whose law firm represented Chase in the first foreclosure action, executed the affidavit. In his affidavit, Mr. Henderson states that, " ased upon representations made during the in chambers conference [on the scheduled trial date], I believed that counsel for [appellant] agreed to the dismissal of the Complaint[.]" Mr. Henderson also stated that " counsel for [appellant] walked with me to the Clerk's office to file the Notice of Dismissal, at which time we discussed how the case would proceed either in Probate Court or in Common Pleas upon a re-filing. I believed that both counsel for [appellant] and the Court were in agreement as to the dismissal."
{ } The document dismissing the second foreclosure action is entitled "NOTICE OF DISMISSAL" and reads: "Now comes the Plaintiff, by and through counsel, pursuant to Rule 41(A) of the Ohio Rules of Civil Procedure, to hereby give NOTICE f dismissal of Plaintiff's Complaint, without prejudice." The notice of dismissal is signed only by Chase's counsel and contains no signature line for either appellant's counsel or the trial court. The unambiguous language of the notice of dismissal, coupled with the lack of signature lines for opposing counsel and the court, demonstrates that Chase dismissed the second foreclosure action by notice pursuant to Civ.R. 41(A)(1)(a). See Internatl. Computing. The fact that appellant's counsel and the court participated in discussions regarding the c
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