Sipes v. Sipes ( 2012 )

[Cite as Sipes v. Sipes, 2012-Ohio-3215.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CYNTHIA E. SIPES :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
: NUNC PRO TUNC
:
DAVID L. SIPES : Filed July 13, 2012
:
:
Defendant-Appellant : CASE NO. 2011-CA-00101
This cause comes before us on the issuance of an opinion and judgment entry
nunc pro tunc to correct a scrivener’s error for misidentification of the appellee to correct
the middle initial to “E”.
IT IS SO ORDERED.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
CYNTHIA E. SIPES : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2011-CA-101
DAVID L. SIPES :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court
of Common Pleas, Domestic Relations
Division, Case No. 2008-DIV-1058
JUDGMENT: Reversed
DATE OF JUDGMENT ENTRY: July 13, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRENT L. ENGLISH CHARLES D LYNCH
1500 West Third Street Six West Third Street, #200
Cleveland, OH 44113-1422 Mansfield, OH 44902
[Cite as Sipes v. Sipes, 2012-Ohio-3215.]
Gwin, P.J.
{¶1} Defendant-appellant David L. Sipes appeals a judgment of the Court of
Common Pleas, Domestic Relations Division, of Richland County, Ohio, entered in favor
of plaintiff-appellee Cynthia A. Sipes. Appellant assigns three errors to the trial court:
{¶2} “I. THE TRIAL COURT COMMITTED ERROR IN FINDING THAT
HUSBAND’S VOLUNTARY NOTICE OF DISMISSAL OF HIS DIVORCE COMPLAINT
PURSUANT TO CIVIL RULE 41 (A)(1)(a) WAS AN ADJUDICATION ON THE MERITS.
{¶3} “II. THE TRIAL COURT COMMITTED ERROR IN APPLYING CIVIL RULE
60 (b) TO A VOLUNTARY NOTICE OF DISMISSAL OF HUSBAND’S DIVORCE
COMPLAINT FILED PURSUANT TO CIVIL RULE 41 (A)(1)(a) WHEN THE DISMISSAL
WAS NOT AN ADJUDICATION ON THE MERITS.
{¶4} “III. THE TRIAL COURT COMMITTED ERROR IN SUA SPONTE
REINSTATING HUSBAND’S DIVORCE COMPLAINT WHICH HUSBAND HAD
VOLUNTARILY DISMISSED PURSUANT TO CIVIL RULE 41 (A)(1)(a) WHEN THERE
WAS NO MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIVIL RULE 60
(B) FILED BY WIFE.”
{¶5} In its judgment entry of September 30, 2011, the trial court set out the
procedural history in this case. On August 8, 2010, appellant filed a complaint for
divorce under this case number. Appellee filed an answer and counterclaim on
September 30, 2010. While the divorce action was pending, appellee moved from the
state of Ohio. Prior to trial the parties agreed to jointly dismiss their respective actions
and appellant agreed to re-file a complaint for divorce. The original divorce case, Case
No. 2008-DIV-1058, was dismissed on January 12, 2010, and the complaint was re-filed
Richland County, Case No. 2011-CA-101 3
the same day, and given the number 2010DIV-0037. The court found appellee did not
file a counterclaim in the second action because the counsel she had then believed
there was a jurisdictional bar to doing so because appellee was not an Ohio resident.
{¶6} The second divorce case was set for trial on November 3 and 4, 2010. On
the first day of trial, appellant voluntarily dismissed his complaint. The court found this
left appellee without legal recourse to file an action in Ohio that would vest the court
with subject matter jurisdiction.
{¶7} Appellee filed a motion pursuant to Civ. R. 60 (B) in the present case,
2008-DIV-1058. The trial court found the dismissal of Case Number 2008-DIV-1058
was not adjudication on the merits, and thus Civ. R. 60 (B) did not apply. The trial court
further found the dismissal of 2010DIV-0037 was an adjudication on the merits under
“two dismissal rule”. The court found for this reason Civ. R. 60 (B) would lie against the
dismissal in the 2010 case, and the court reinstated the second complaint.
I.
{¶8} In his first assignment of error, appellant argues the court committed error
in finding his notice of dismissal filed in the second case was adjudication on the merits.
We agree.
{¶9} Civ. R. 41 states in pertinent part:
{¶10} Voluntary dismissal: effect thereof
{¶11} (1) By plaintiff; by stipulation.
{¶12} * * * [A] plaintiff, without order of court, may dismiss all claims
asserted by that plaintiff against a defendant by doing either of the
following:
Richland County, Case No. 2011-CA-101 4
{¶13} (a) filing a notice of dismissal at any time before the
commencement of trial unless a counterclaim which cannot remain
pending for independent adjudication by the court has been served by that
defendant;
{¶14} (b) filing a stipulation of dismissal signed by all parties who have
appeared in the action.
{¶15} Unless otherwise stated in the notice of dismissal or stipulation, the
dismissal is without prejudice, except that a notice of dismissal operates
as an adjudication upon the merits of any claim that the plaintiff has once
dismissed in any court.
{¶16} (2) By order of court. Except as provided in division (A)(1) of this
rule, a claim shall not be dismissed at the plaintiff's instance except upon
order of the court and upon such terms and conditions as the court deems
proper. * * *
{¶17} There are three ways a plaintiff can dismiss a complaint under Civ. R. 41
(A). First, a plaintiff may file a notice of dismissal, which divests the trial court from
jurisdiction if there are no pending counterclaims pending for independent adjudication.
Civ. R. 41(A)(1)(a), Thorton v. Montville Plastics & Rubber, Inc., 11th District No. 2006-
G-2744,2007-Ohio-3475, ¶ 16.
{¶18} The second way a plaintiff can dismiss a case is by filing a stipulation
signed by all parties pursuant to Civ. R. 41 (A)(1)(B). The dismissal acts as a voluntary
dismissal of each party’s claims.Civ.R. 41 (A)(1)(b), Feckner v. Donley’s, Inc., 8th
District App. No. 888926, 2007-Ohio-5335 ¶ 20.
Richland County, Case No. 2011-CA-101 5
{¶19} The third way a plaintiff may dismiss a case is by motion to the court
pursuant to Civ. R. 41 (A)(2). Under this scenario, there is no notice of dismissal, but
rather a judgment entry from the court.
{¶20} The double dismissal rule applies only when both dismissals were notice
dismissals under Civ. R. 41 (A)(1)(a). Dismissals pursuant to Civ.R. 41(A)(1)(b) and (c)
do not trigger the double dismissal rule. Olynyk v. Scoles, 114 Ohio St. 3d 56, 2007-
Ohio-2878, 868 N.E. 2d 254, ¶31.
{¶21} Because the first dismissal in the 2008 case was pursuant to a court order
rather than a voluntary notice of dismissal, the two-dismissal rule does not apply.
{¶22} The first assignment of error is sustained.
II.
{¶23} In his second assignment of error, appellant argues the court erred in
applying Civ. R. 60 (B) to the second action because the dismissal was not an
adjudication on the merits. We agree. Appellant’s dismissal of 2010DIV-0037 was
neither on the merits nor the second dismissal pursuant to Civ. R. 41(A)(1)(a). As the
trial court correctly noted, Civ. R. 60 (B) cannot be invoked to revive an action which
has not been adjudicated on the merits. Hensley, Administrator v. Henry, 61 Ohio St.
2d 277, 400 N.E. 2d 1353 (1980), citations deleted. See also, Thorton, supra.
{¶24} The second assignment of error is sustained.
III.
{¶25} In his third assignment of error, appellant argues the trial court committed
error in sua sponte reinstating the divorce complaint pursuant to Civ. R. 60 (B) because
Richland County, Case No. 2011-CA-101 6
the motion was filed in the 2008 case but was not filed in the 2010 case. We agree with
appellant, and find the court had no jurisdiction to reinstitute the second case.
{¶26} The third assignment of error is sustained.
{¶27} For the foregoing reasons, the judgment of the Court of Common Pleas,
Domestic Relations Division, of Richland County, Ohio, is reversed.
By Gwin, P.J.,
Farmer, J., and
Edwards, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS
WSG:clw 0607
[Cite as Sipes v. Sipes, 2012-Ohio-3215.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CYNTHIA E. SIPES :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DAVID L. SIPES :
:
:
Defendant-Appellant : CASE NO. 2011-CA-101
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas, Domestic Relations Division, of Richland County, Ohio, is
reversed. Costs to appellee.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS