Summary
stating that this type of dismissal is not a proper predicate for Civ.R. 60 (B) relief
Summary of this case from State v. the V CompaniesOpinion
No. 79-455
Decided February 27, 1980.
Relief from judgment — Denied, when — Plaintiff's notice of dismissal not final judgment, when — Civ. R. 60(B), construed.
Unless plaintiff's Civ. R. 41(A)(1)(a) notice of dismissal operates as an adjudication upon the merits under Civ. R. 41(A)(1), it is not a final judgment, order or proceeding, within the meaning of Civ. R. 60(B).
APPEAL from the Court of Appeals for Franklin County.
On April 28, 1976, plaintiff-appellee, Oscar Hensley, the administrator of the estate of Elizabeth Hensley, filed a wrongful death action against defendant-appellant, Dr. J.L. Henry, alleging that defendant's medical malpractice caused the July 14, 1975, death of Elizabeth Hensley. After an arbitration board decided in favor of defendant, plaintiff chose not to accept the board's decision and the case was assigned for trial on January 30, 1978. See R.C. 2711.21.
On or about January 10, 1978, the parties approached the trial judge to discuss the possibility of continuing the action, pending appellate disposition in another case of certain legal questions concerning the Ohio Medical Malpractice Act. In accordance with his usual policy, the judge refused to grant the continuance.
On the morning of the day trial was to commence, January 30, the parties again approached the judge to consider dismissing the action, and refiling it once the above legal questions were resolved. The judge assured the parties that if this course were chosen, he would expeditiously advance and assign the case for trial. Later that morning, with assistance from defendant's counsel and the judge's secretary, plaintiff's counsel prepared the following notice:
"NOTICE OF DISMISSAL
"Pursuant to Rule 41 A(1)(a), and prior to the commencement of trial, Plaintiff hereby dismisses the within cause without prejudice."
Shortly thereafter, this notice of dismissal was signed as "approved" by the judge and filed with the clerk by defendant's counsel. Later that day, defendant's counsel, by telephone, informed plaintiff's counsel that the refiled action might be barred by the two-year statute of limitations applicable to wrongful death actions.
On July 10, 1978, the trial court granted plaintiff's motion for relief under Civ. R. 60(B) on the ground that the notice of dismissal had been filed due to error, inadvertence or excusable neglect. In this connection, the court first set aside the plaintiff's voluntary dismissal, and then dismissed the action without prejudice under Civ. R. 41(B)(1) for failure to prosecute with due diligence. On appeal, the Court of Appeals affirmed this judgment, ruling in effect that Civ. R. 60(B) permitted the trial court to relieve plaintiff from the consequences of Civ. R. 41(A)(1)(a) because plaintiff's dismissal notice was inadvertently filed.
The cause is now before this court pursuant to a motion to certify the record.
Messrs. Wolske Blue, Mr. Walter J. Wolske, Jr., and Mr. Dennis M. McCarthy, for appellee.
Messrs. Porter, Wright, Morris Arthur, Mr. James E. Pohlman and Ms. Roberta Y. Bavry, for appellant.
In this cause, we need only determine whether, under Civ. R. 60(B), the trial court could set aside plaintiff's Civ. R. 41(A)(1)(a) voluntary dismissal and then dismiss the action without prejudice under Civ. R. 41(B)(1) for failure to prosecute with due diligence. Defendant argues that the trial court could accomplish neither because plaintiff's filing of a Civ. R. 41(A)(1)(a) notice of dismissal divested the court of subject matter jurisdiction; and, alternatively, because plaintiff's dismissal is not a proper predicate for Civ. R. 60(B) relief.
In relevant part, Civ. R. 60(B) provides:
"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons:"
Civ. R. 41(A) provides, in part:
"(1) ***[A]n action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial***. Unless otherwise stated in the notice of dismissal***, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim."
In relevant part, Civ. R. 41(B)(1) provides:
"Where the plaintiff fails to prosecute***, the court*** on its own motion may, after notice to the plaintiff's counsel, dismiss the action or claim."
Pursuant to Civ. R. 41(B)(3), the judge specified the Civ. R. 41(B)(1) involuntary dismissal to be "without prejudice" and thus prevented it from having a res judicata effect.
The trial judge and both counsel assumed that while an involuntary dismissal without prejudice pursuant to Civ. R. 41(B)(1) would invoke the statute of limitations savings clause, R.C. 2305.19, plaintiff's voluntary dismissal pursuant to Civ. R. 41(A)(1)(a) would not. See Beckner v. Stover (1969), 18 Ohio St.2d 36.
Defendant does not dispute the court's inherent power to determine its jurisdiction which herein includes, inter alia, the power to determine if the filing complied with Civ. R. 41(A)(1)(a).
Assuming, arguendo, that an effective filing of a Civ. R. 41(A)(1)(a) notice of dismissal does not divest the trial court of jurisdiction, cf. American Cyanamid Co. v. McGhee (C.A. 5, 1963), 317 F.2d 295, the trial court was nevertheless incompetent to grant plaintiff relief. Civ. R. 60(B) is restrictive in that it permits the court to grant relief only from certain " final judgment[s], order[s], or proceeding[s]." (Emphasis added.) Under Civ. R. 41(A)(1), plaintiff's notice of dismissal does not operate "as an adjudication upon the merits" because plaintiff had not previously "dismissed in any court, an action based on***the same claim," and because the notice of dismissal did not "otherwise" state that it should so operate. As such, it is not a final judicial determination from which Civ. R. 60(B) can afford relief. See Hulson v. Atchinson, Topeka Santa Fe Ry. Co. (N.D. Ill. 1960), 27 F.R.D. 280, 284. Therefore, the trial court erred in setting aside plaintiff's Civ. R. 41(A)(1)(a) notice of dismissal.
"Since `judgment' is defined [in Rule 54(a)] as including a decree and any order from which an appeal lies***; and since final judgment is normally appealable, ***the words `order, or proceeding' in 60(b) can usually add nothing to what is embraced within the term `judgment.'" 7 Moore's Federal Practice (2 Ed. 1979) 341, at n. 9, Paragraph 60.27[1].
See, also, id., at page 220, Paragraph 60.18[8].
The judgment of the Court of Appeals is thus reversed and the cause remanded to the trial court with instructions that it vacate its Civ. R. 41(B)(1) involuntary dismissal and reinstate plaintiff's Civ. R. 41(A)(1)(a) voluntary dismissal without prejudice.
Judgment reversed and cause remanded.
P. BROWN, SWEENEY and LOCHER, JJ., concur.
CELEBREZZE, C.J., and HOLMES, J., dissent.
HERBERT, J., not participating.