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EMC Mortgage Corp. v. Jenkins11/1/2005
ase immediately prior to dismissal and did not object to appellant's stated intention to dismiss the case does not alter the inescapable conclusion that Chase's voluntary dismissal was unilaterally accomplished by notice pursuant to Civ.R. 41(A)(1)(a). Id., distinguishing Graham v. Pavarini (1983), 9 Ohio App.3d 89, 94.
{ } In Internatl. Computing, the plaintiff made a similar argument that a second dismissal was not a dismissal by notice under Civ.R. 41(A)(1)(a) but, rather, a stipulation of dismissal. Therein, the plaintiff filed a document entitled "NOTICE OF VOLUNTARY DISMISSAL," which cited Civ.R. 41(A)(1) and utilized language ostensibly in the plaintiff's voice. Plaintiff's counsel signed the notice of dismissal. Additionally, at the bottom of the page, defense counsel also signed the notice of dismissal. This court found that defense counsel's signature, appearing at the bottom of the page and not accorded status equal to the signature of plaintiff's counsel, was merely an acknowledgment rather than a stipulation. Thus, we concluded that the dismissal was made by notice, pursuant to Civ.R. 41(A)(1)(a), and implicated the two-dismissal rule. In this case, we likewise find that dismissal of the second foreclosure action was accomplished by notice and not by stipulation of the parties. The belief of Chase's counsel, who now represents EMC, that appellant's counsel was unopposed to the second dismissal does not alter that conclusion. Therefore, the two-dismissal rule renders that dismissal an adjudication on the merits.
{ } Chase voluntarily dismissed its second foreclosure action by notice, pursuant to Civ.R. 41(A)(1)(a), having previously dismissed its claims in the first foreclosure action in the same manner. Pursuant to Civ.R. 41(A), its second dismissal constituted an adjudication on the merits of the claims asserted therein. Upon review, we conclude that the doctrine of res judicata bars EMC's claims and that the trial court erred by failing to dismiss EMC's claims. Therefore, we sustain appellant's assignment of error, reverse the judgment of the Franklin County Court of Common Pleas, and remand this matter with instructions to dismiss EMC's claims.
Judgment reversed and cause remanded with instructions.
PETREE and TRAVIS, JJ., concur.
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