Summary
In State ex rel. Hunt v. Thompson, 63 Ohio St.3d 182, 586 N.E.2d 107 (1992), the Supreme Court of Ohio issued the writ of prohibition when the plaintiffs dismissed their case under Civ.R. 41(A)(1).
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No. 90-1817
Submitted December 3, 1991 —
Decided March 11, 1992.
APPEAL from the Court of Appeals for Franklin County, No. 88AP-723.
Leonard O. Hunt and Shirley C. Hunt, appellants, sued, inter alia, Jack R. Pigman and Robert J. Kegerreis, intervening respondents and appellees, in Franklin County Common Pleas Court. The case was assigned to Judge Thompson, appellee. Thompson granted the Hunts's ex parte motion for a voluntary dismissal without prejudice, and intervenors appealed this dismissal to the Court of Appeals for Franklin County. The court of appeals ruled that the dismissal was ineffective, because intervenors had not been heard on the motion, and reversed the judgment.
While that appeal was pending, the Hunts, conceding that the ex parte dismissal entry was error, filed a notice of dismissal with the trial court under Civ.R. 41(A)(1)(a). When the court of appeals remanded the case to the trial court, the Hunts sought a ruling from Thompson on the effect of the notice of dismissal. Thompson decided that he was without jurisdiction when this notice of dismissal was filed, that the notice, consequently, was a nullity, and that he would proceed in the case.
The Hunts filed a complaint in prohibition with the Court of Appeals for Franklin County to prevent Thompson from proceeding. The court of appeals concluded that the notice of dismissal was effective to dismiss the case but that the Hunts had an adequate remedy at law by filing another notice of dismissal. Accordingly, the court denied the writ.
The cause is before this court upon an appeal as of right.
Robert C. Paxton II Associates and Robert C. Paxton II, for appellants.
Squire, Sanders Dempsey, Alan L. Briggs and Michael W. Pettit, for appellee Pigman.
Faruki, Gilliam Ireland and Armistead W. Gilliam, Jr., for appellee Kegerreis.
The Hunts argue that Thompson is without jurisdiction whatsoever to act and that the appellate court should have issued the writ. Pigman and Kegerreis contend that the Hunts have an adequate remedy at law by filing a second notice of dismissal.
According to Ohio Dept. of Adm. Serv., Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48, 562 N.E.2d 125, syllabus:
"When a court patently and unambiguously lacks jurisdiction to consider a matter, a writ of prohibition will issue to prevent assumption of jurisdiction * * *. [Citations omitted.]"
In State, ex rel. Rice, v. McGrath (1991), 62 Ohio St.3d 70, 577 N.E.2d 1100, we issued a writ to prevent a judge from taking further action in a case that he had earlier unconditionally dismissed. We held that the judge patently and unambiguously lacked jurisdiction over the case.
Civ.R. 41(A)(1) states:
"Subject to the provisions of Rule 23(E) [class actions] and Rule 66 [receiverships], an 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 or stipulation, 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."
Under Civ.R. 41(A)(1)(a), therefore, a plaintiff may dismiss his complaint. If a plaintiff does so, the court, consequently, loses jurisdiction over the case. Under Rice, the trial court here patently and unambiguously lacked jurisdiction over the case, and the court of appeals erred in denying the writ prohibiting the trial court from proceeding further. Moreover, if the Hunts file a second notice of dismissal, as the appellate court suggests, the notice would operate as an adjudication upon the merits. Thus, this remedy is not an adequate one. Accordingly, we reverse the judgment of the court of appeals and grant the writ.
Judgment reversed and writ granted.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.