Bellar v. Clary Trucking

2025 Ohio 932

• Court: Ohio Court of Appeals
• Decided: March 17, 2025
• Docket: 2024 CA 0055 & 2024 CA 0083
• Status: Published

Opinion

[Cite as Bellar v. Clary Trucking, 2025-Ohio-932.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

THOMAS BELLAR : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff-Appellant : Hon. Andrew J. King, J. : Hon. David M. Gormley, J. -vs- : : Case Nos. 2024 CA 0055 CLARY TRUCKING, ET AL. : 2024 CA 0083 : Defendants-Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2024 CV 00229

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 17, 2025

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

JARED T. BRANKAMP DAVID J. HEINLEIN 1118 Hutchins Street 250 W. Old Wilson Bridge Road Portsmouth, OH 45662 Suite 265 Worthington, OH 43085-2257

For OBWC

TIMOTHY E. KECK SUE POHLER 766 Northwest Boulevard Grandview Heights, OH 43212 King, J.

{¶ 1} Plaintiff-Appellant, Thomas Bellar, appeals from two judgment entries of the

Court of Common Pleas of Licking County, Ohio, one filed on May 21, 2024, dismissing

his refiled complaint and one filed on September 13, 2024, denying his motion for relief

from judgment.1 Defendants-Appellees are Clary Trucking, Inc. and Joshua Whitley. The

Ohio Bureau of Workers' Compensation is also a named party. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On September 12, 2018, Bellar sustained injuries in a motor vehicle

accident caused by Whitley while Whitley was operating a vehicle during the course and

scope of his employment with Clary Trucking.

{¶ 3} On August 28, 2020, Bellar filed a complaint against appellees in Licking

County (Case No. 2020CV00979). On September 3, 2020, Bellar filed an identical

complaint against appellees in Adams County (Case No. CVC20200301). On November

30, 2020, Bellar voluntarily dismissed the Adams County complaint under Civ.R. 41(A)(1).

{¶ 4} Bellar's attorney was Jeremy Burnside. Attorney Burnside passed away in

June 2022 after an extended illness. Attorney Burnside's associate, Robert Johnson,

filled in from approximately January 2021 until October 2022 when he left the law firm;

the case was then assigned to another associate in the firm, Bellar's current counsel,

Jared Brankamp.

{¶ 5} A jury trial was scheduled for March 6, 2023. Following a pretrial held on

February 24, 2023, a short continuance was granted and then on June 14, 2023, Bellar

1The trial court filed nunc pro tunc judgment entries on each entry on September 16, 2024;

there does not appear to be any changes from the original entries. filed a notice of voluntary dismissal without prejudice. Bellar claims neither he nor

Attorney Brankamp were aware of the Adams County filing and dismissal.

{¶ 6} On February 22, 2024, Bellar refiled his complaint against appellees in

Licking County (Case No. 2024CV00229). On March 18, 2024, appellees filed a motion

to dismiss under Civ.R. 12(B)(6), arguing the complaint was filed beyond the statute of

limitations and the savings statute had expired because the time to refile started when

the Adams County complaint was dismissed on November 30, 2020. By judgment entry

filed May 21, 2024, the trial court granted the motion.

{¶ 7} On June 24, 2024, Bellar filed a motion for relief from judgment under Civ.R.

60(B). A hearing was held on August 22, 2024. By judgment entry filed September 13,

2024, the trial court denied the motion.

{¶ 8} Bellar filed separate appeals, one for the Civ.R. 12(B)(6) dismissal and one

for the Civ.R. 60(B) denial; the two appeals were consolidated on October 18, 2024.

Bellar filed the following assignments of error:

I

{¶ 9} "THE TRIAL COURT ERRED IN COUNTING THE ADAMS COUNTY

VOLUNTARY DISMISSAL AGAINST APPELLANT FOR THE PURPOSE OF CIV.R. 41,

WHEN THE ADAMS COUNTY ACTION WAS VOID AB INITIO FOR LACK OF SUBJECT

MATTER JURISDICTION."

II

{¶ 10} "THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION TO

DISMISS WHEN IT APPLIED THE SAVINGS STATUTE'S ONE YEAR LIMIT FROM THE

DATE OF A VOID DISMISSAL." III

{¶ 11} "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT WHEN APPELLANT WAS

SURPRISED BY THE EXISTENCE OF THE ADAMS COUNTY PROCEEDINGS, NO

ADDITIONAL BENEFIT WAS CONFERRED ON HIM, APPELLEE WAS NOT

PREJUDICED, AND CASES SHOULD BE DECIDED ON THEIR MERITS."

{¶ 12} In his first assignment of error, Bellar claims the trial court erred in finding

the Adams County voluntary dismissal counted against him for the purpose of Civ.R. 41

because the action was void ab initio for lack of subject matter jurisdiction. We disagree.

{¶ 13} Bellar correctly argues "a judgment rendered by a court lacking subject

matter jurisdiction is void ab initio." Patton v. Diemer, 35 Ohio St.3d 68, 70 (1988);

Appellant's Brief at 5. "Subject-matter jurisdiction of a court connotes the power to hear

and decide a case upon its merits." Morrison v. Steiner, 32 Ohio St.2d 86, 87 (1972).

{¶ 14} Article IV, Section 4(B) of the Ohio Constitution states: "The courts of

common pleas and divisions thereof shall have such original jurisdiction over all justiciable

matters . . . as may be provided by law." This current version was adopted in 1968. Prior

to this current version, the provision read: "The jurisdiction of the courts of common pleas,

and of the judges thereof shall be fixed by law." In comparing the two provisions, it is

clear that in 1968, the voters of Ohio constitutionalized the common pleas courts'

historically expansive and inclusive subject matter jurisdiction. Indeed, the Supreme

Court of Ohio has said as much: "This court has long held that the court of common pleas is a court of general jurisdiction, with subject-matter jurisdiction that extends to 'all matters

at law and in equity that are not denied to it.'" Bank of America, N.A. v. Kuchta, 2014-

Ohio-4275, ¶ 20, quoting Saxton v. Seiberling, 48 Ohio St. 554, 558-559 (1891); accord

State v. Thoen, 2024-Ohio-5720, ¶ 21-22 (5th Dist.); see also Cirotto v. American Self

Storage of Pickerington, LLC, 2023-Ohio-4335 (5th Dist.) (King, J., dissenting). Because

the Constitution's default rule is a common pleas court will have subject matter

jurisdiction, "the law" (a statute) must provide for the exception to its jurisdiction. Thus,

only the General Assembly can limit a common pleas court's subject matter jurisdiction.

State v. Wilson, 73 Ohio St.3d 40, 42 (1995); Thoen at ¶ 24. In determining whether a

statute has circumscribed the power of the common pleas court to hear a particular

matter, we examine the statute to see if there is a clear statement divesting the common

pleas court of subject matter jurisdiction. Thoen at ¶ 25. We do not find that here.

{¶ 15} Bellar argues the Adams County court lacked subject matter jurisdiction

because of the jurisdictional priority rule. That rule states: "As between courts of

concurrent jurisdiction, the one whose power is first invoked by the institution of proper

proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon

the whole issue and to settle the rights of the parties." John Weenink & Sons Co. v. Court

of Common Pleas of Cuyahoga County, 150 Ohio St. 349 (1948), paragraph two of the

syllabus.

{¶ 16} But the jurisdictional priority rule did not preclude subject matter jurisdiction

in the Adams County court. Under Civ.R. 3(C), "[a]ny action may be venued,

commenced, and decided in any court in any county." Adams County had just as much

subject matter jurisdiction as Licking County in this case. Bellar chose to invoke both. At that point, the jurisdictional priority rule could have been raised or a challenge made under

the doctrine of forum non conveniens to limit the action to one court. Triad Hunter, LLC

v. Eagle Natrium, LLC, 2019-Ohio-940, ¶ 49 (7th Dist.), citing Chambers v. Merrell-Dow

Pharmaceuticals, Inc., 35 Ohio St.3d 123, 126 (1988) ("The doctrine presupposes there

is jurisdiction, venue, and another available forum"). In fact, by arguing the jurisdictional

priority rule, Bellar in effect is arguing Adams County and Licking County had concurrent

jurisdiction. Concurrent jurisdiction "exists when several different courts or tribunals are

authorized to deal with the same subject matter." Adams Robinson Enterprises v.

Envirologix Corp., 111 Ohio App.3d 426, 429 (2d Dist. 1996), citing 22 Ohio Jur.3d, Courts

and Judges, § 321 and 322 (1980). Therefore, under concurrent jurisdiction, Adams

County was "authorized to deal with the same subject matter."

{¶ 17} Bellar further argues because the Licking County case was filed first and

service on all parties was achieved on September 8, 2020, five days after the Adams

County complaint was filed, the Adams County proceedings became void ab initio.

Appellant's Brief at 7. But achieving service in the Licking County case did not preclude

Bellar from achieving service in the Adams County case; Bellar could have achieved

service in Adams County and then chosen which forum to pursue, understanding

appellees could challenge venue.

{¶ 18} Based upon the foregoing, the Adams County court had subject matter

jurisdiction and the action filed therein was not void ab initio for lack of subject matter

jurisdiction. Bellar chose to voluntarily dismiss the Adams County complaint under Civ.R.

41(A)(1). We find the trial court did not err in finding the Adams County voluntary

dismissal counted against Bellar. {¶ 19} Assignment of Error I is denied.

{¶ 20} In his second assignment of error, Bellar claims the trial court erred in

applying the one-year extension of the savings statute from the date of a void dismissal.

We decline to address this argument and deny the assignment of error for other reasons.

{¶ 21} First, as found above, the dismissal was not void. Bellar filed the Adams

County action and then voluntarily dismissed it on November 30, 2020. He then

voluntarily dismissed the Licking County action on June 14, 2023, and refiled it in Licking

County on February 22, 2024. It is undisputed the statute of limitations expired on

September 12, 2020. See R.C. 2305.10(A). Under R.C. 2305.19(A), known as the

savings statute, a plaintiff may be able to refile a lawsuit after the applicable statute of

limitations has run: "In any action that is commenced or attempted to be commenced . . .

if the plaintiff fails otherwise than upon the merits, the plaintiff . . . may commence a new

action within one year after the date of . . . the plaintiff's failure otherwise than upon the

merits or within the period of the original applicable statute of limitations, whichever

occurs later." (Emphasis added.)

{¶ 22} In their Civ.R. 12(B)(6) motion to dismiss the Licking County refiled action,

appellees argued the savings statute had expired because the time to refile started when

the Adams County complaint was dismissed on November 30, 2020; therefore, Bellar had

until November 30, 2021, to refile the action and failed to do so. The trial court analyzed

R.C. 2305.19(A) and agreed, finding Bellar refiled his complaint on February 22, 2024,

beyond the one year in which to file the new action, November 30, 2021. {¶ 23} Bellar argues the applicable dismissal for the savings statute was the

dismissal of the Licking County complaint on June 14, 2023, and because he refiled it on

February 22, 2024, it was within time. But Bellar ignores the language of Civ.R. 41(A)(1)

which governs voluntary dismissals. The rule states: "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." (Emphasis added.) The trial court cited this rule and found

because both dismissals were voluntary dismissals by Bellar, the June 14, 2023 dismissal

operated as an adjudication upon the merits. As cited above, an adjudication upon the

merits precludes the application of the savings statute. R.C. 2305.19(A). In support, the

trial court cited the case of Olynyk v. Scoles, 2007-Ohio-2878, ¶ 10, wherein the Supreme

Court of Ohio held:

It is well established that when a plaintiff files two unilateral notices

of dismissal under Civ.R. 41(A)(1)(a) regarding the same claim, the second

notice of dismissal functions as an adjudication of the merits of that claim,

regardless of any contrary language in the second notice stating that the

dismissal is meant to be without prejudice. In that situation, the second

dismissal is with prejudice under the double-dismissal rule, and res judicata

applies if the plaintiff files a third complaint asserting the same cause of

action. See 1970 Staff Note to Civ.R. 41 (when a dismissal is with prejudice,

"the dismissed action in effect has been adjudicated upon the merits, and an action based on or including the same claim may not be retried").

(Citations omitted.)

See also McCollough v. Bennett, 2024-Ohio-2783, ¶ 21.

{¶ 24} Because the double-dismissal rule applies in this case and the savings

statute does not, we decline to review whether the trial court erred in applying the savings

statute from the date of the Adams County dismissal because the argument is irrelevant.

Had one of the dismissals been other than a Civ.R. 41(A)(1) voluntary dismissal, there

may have been a different outcome, but that is a case for another day. See McCollough,

2024-Ohio-2783, at ¶ 1-2 (following the plain terms of the savings statute, a third

complaint, after two trial court dismissals, filed after the statute of limitations but within

one year of the dismissal of the second lawsuit, was timely commenced).

{¶ 25} Assignment of Error II is denied.

III

{¶ 26} In his third assignment of error, Bellar claims the trial court abused its

discretion in denying his Civ.R. 60(B) motion for relief from judgment. We disagree.

{¶ 27} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's

sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75 (1987). "Abuse of discretion" means

an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon,

Inc., 19 Ohio St.3d 83, 87 (1985). Most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are unconscionable or

arbitrary. AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp.,

50 Ohio St.3d 157, 161 (1990). An unreasonable decision is one backed by no sound reasoning process which would support that decision. Id. "It is not enough that the

reviewing court, were it deciding the issue de novo, would not have found that reasoning

process to be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result." Id.

{¶ 28} Bellar based his Civ.R. 60(B) motion on "mistake, inadvertence, surprise or

excusable neglect" and "any other reason justifying relief from the judgment." Civ.R.

60(B)(1) and (5). In GTE Automatic Electric Inc. v. ARC Industries, Inc., 47 Ohio St.2d

146 (1976), paragraph two of the syllabus, the Supreme Court of Ohio held:

To prevail on a motion brought under Civ.R. 60(B), the movant must

demonstrate that: (1) the party has a meritorious defense or claim to present

if relief is granted; (2) the party is entitled to relief under one of the grounds

stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a

reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or

(3), not more than one year after the judgment, order or proceeding was

entered or taken.

{¶ 29} Bellar argues he was surprised by the existence of the Adams County

action, no additional benefit was conferred on him, appellees were not prejudiced, and

cases should be decided on their merits. Appellant's Brief at 11. Primarily, Bellar argues

he was surprised by the Adams County filing and dismissal. The Adams County case

was filed on September 3, 2020, and voluntarily dismissed on November 30, 2020.

Bellar's counsel who submitted the filings passed away in June 2022 after an extended illness. An associate attorney took over the case from January 2021 to October 2022

until he left the law firm; the case was then assigned to another associate attorney in the

law firm, Bellar's current counsel. Neither Bellar nor his current counsel were aware of

the Adams County filings. August 22, 2024 T. at 10. We note although Bellar states

second counsel took over in January 2021, his name is listed as secondary counsel on

the first Licking County complaint filed on August 28, 2020, and the Adams County

complaint filed on September 3, 2020.

{¶ 30} In denying the motion for relief from judgment, the trial court acknowledged

the tragic passing of Bellar's first counsel, but noted his second counsel's name "appears

in the signature block of the filing which dismissed the Adams County Complaint on

November 30, 2020." September 13, 2024 Judgment Entry at 6. From this, the trial court

inferred second counsel "was or should have been familiar with that case" and he and

current counsel "had an obligation to communicate concerning the same." Id. The trial

court reiterated that the second voluntary dismissal under Civ.R. 41(A)(1) operated as an

adjudication on the merits. Id. at 6-7.

{¶ 31} The second attorney was listed on the Adams County pleadings. It is hard

to argue surprise when the case file stayed with the same law firm throughout. It was not

unreasonable for the trial court to infer second counsel was familiar with the Adams

County action and he and current counsel should have communicated with each other.

Further, the double-dismissal language of Civ.R. 41(A)(1) precludes the trial court from

hearing a third-filed complaint because once Bellar filed his second voluntary notice of

dismissal, "the second dismissal is with prejudice under the double-dismissal rule, and res judicata applies if the plaintiff files a third complaint asserting the same cause of

action." Olynyk, 2007-Ohio-2878, at ¶ 10; McCollough, 2024-Ohio-2783, at ¶ 21.

{¶ 32} Upon review, we find the trial court did not abuse its discretion in denying

Bellar's Civ.R. 60(B) motion for relief from judgment.

{¶ 33} The judgments of the Court of Common Pleas of Licking County, Ohio are

hereby affirmed.

By King, J.

Baldwin, P.J. and

Gormley, J. concur. Gormley, J., concurring in the opinion and judgment

{¶ 34} I join the court’s opinion and judgment in full.

{¶ 35} I write separately simply to note that in my view, this court in the past has

regrettably conflated the concepts of subject-matter jurisdiction on the one hand and

jurisdiction over a particular case on the other. The distinction is relevant in this case, in

which appellant Bellar has, as the court’s opinion today explains, urged us to find that the

trial court in Adams County initially had but later did not have subject-matter jurisdiction

to hear this case. Bellar of course relies on the so-called jurisdictional-priority rule in

making that claim.

{¶ 36} In my view, subject-matter jurisdiction is not something that can be flipped

on and off like a light switch. Rather, “[s]ubject-matter jurisdiction refers to the

constitutional or statutory power of a court to adjudicate a particular class or type of case.”

State ex rel. Taylor v. Montgomery Cty. Court of Common Pleas, 2024-Ohio-1127, ¶ 15.

Absent a statutory amendment — or a constitutional one — a court’s subject-matter

jurisdiction is fixed and is unaffected by the actions of the parties. See Pratts v. Hurley,

2004-Ohio-1980, ¶ 34 (“Subject-matter jurisdiction is a court’s power over a type of case.

It is determined as a matter of law, and once conferred, it remains”).

{¶ 37} What can change is a court’s jurisdiction — as opposed to subject-matter

jurisdiction — to hear a particular case, and that is what happens under the jurisdictional-

priority rule. Under that principle, “as between state courts of concurrent jurisdiction, the

tribunal whose power is first invoked acquires exclusive jurisdiction to adjudicate the

whole issue and settle the rights of the parties.” Gemmell v. Anthony, 2024-Ohio-3129,

¶ 52 (4th Dist.). {¶ 38} To be sure, our court wrote nearly two decades ago that under the

jurisdictional-priority rule, “the court whose power was last invoked should dismiss the

claims for lack of subject-matter jurisdiction.” Holmes Cty. Bd. of Comm’rs v. McDowell,

2006-Ohio-5017, ¶ 27 (5th Dist.). We ought to have chosen our words more carefully

then and should not have used the term “subject-matter jurisdiction” to describe the

impact of the jurisdictional-priority rule.

{¶ 39} The distinction between subject-matter jurisdiction and jurisdiction is

perhaps a minor one, but ours is a profession in which words matter. Mark Twain was of

course a writer and not a lawyer, but his thoughts on choosing the right word come to

mind. As Twain supposedly said — according to George Bainton in the 1890 publication

The Art of Authorship — the difference between the right word and the almost right word

is the difference between lightning and a lightning bug. Indeed.

{¶ 40} In the end, the concern that I have voiced is of no consequence to today’s

holding, and I agree in full with my colleagues in this case. As Judge King’s opinion for

the court indicates, Bellar is bound by the express language of Civil Rule 41(A)(1). By

voluntarily dismissing the same case twice, Bellar is now barred, as the trial court found,

from initiating the case a third time.