Bumpus v. Ward

2014 Ohio 267

• Court: Ohio Court of Appeals
• Decided: January 22, 2014
• Docket: 13CA13, 13CA14
• Status: Published

Opinion

[Cite as Bumpus v. Ward, 2014-Ohio-267.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

MARTHA BUMPUS JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 13CA13 and 13CA14 LLOYD WARD, P.C., ET AL.

Defendants-Appellants OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 11OT05-0260

JUDGMENT: Reversed

DATE OF JUDGMENT ENTRY: January 22, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

JEREMIAH E. HECK BRYAN B. JOHNSON KATHERINE L. KEENAN 5003 Horizons Drive, Suite 200 LUFTMAN, HECK & ASSOCIATES, LLP Columbus, Ohio 43220-5292 580 East Rich Street Columbus, Ohio 43215

BRIAN M. GARVINE Law Office of Brian M. Garvine, LLC 5 E. Long Street, Suite 1100 Columbus, Ohio 43215 Knox County, Case No. 13CA13 and 13CA14 2

Hoffman, P.J.

{¶1} Defendants-appellants Lloyd Ward, P.C. dba Lloyd Ward and Associates,

Lloyd Ward Group, LLC, and Lloyd Ward, individually, and as Director and Owner of

Lloyd Ward, P.C., (“Appellants”) appeal separate judgment entries entered by the Knox

County Court of Common Pleas denying their separate motions to enforce a forum

selection clause and to compel arbitration in favor of Plaintiff-appellee Martha Bumpus.

STATEMENT OF THE PROCEDURAL HISTORY1

{¶2} On July 24, 2010, the parties entered into an agreement entitled "Client

Services Agreement- Savings and Debt Negotiation" whereby Appellee agreed to enroll

$37,410 of credit card debt in Appellants’ debt reduction program in exchange for

Appellant's efforts to negotiate down Appellee’s debt to a manageable amount.

{¶3} On May 6, 2011, Appellee filed a complaint in the Knox County Court of

Common Pleas against Appellants alleging violations of the Ohio Consumer Sales

Practices Act, the Ohio Credit Services Organization Act, the Ohio Credit Repair

Organization Act, fraud and piercing of the corporate veil.

{¶4} On June 23, 2011, Appellants filed a motion to dismiss for failure to state a

claim, or in the alternative to change venue based solely on the doctrine of forum non-

conveniens.

{¶5} On January 23, 2012, the trial court sustained the motion.

{¶6} Later that same day, the docket indicates Appellee filed a notice of

voluntary dismissal without prejudice, pursuant to Civil Rule 41(A).

1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Knox County, Case No. 13CA13 and 13CA14 3

{¶7} On February 22, 2012, Appellee filed a notice of appeal from the trial

court's January 23, 2012 Judgment Entry sustaining Appellants’ motion to dismiss.

{¶8} Via opinion and Judgment Entry filed October 9, 2012, this Court reversed

the decision of the trial court which had sustained Appellants’ motion to dismiss, and

remanded the case to the trial court for further proceedings. Bumpus v. Ward, Fifth

Dist. Knox. No. 2012 CA 5, 2012-Ohio-4674.

{¶9} On November 9, 2012, Appellee filed a motion to vacate her January 23,

2012 notice of voluntary dismissal filed pursuant to Civil Rule 41(A). Appellants

opposed the motion. On January 2, 2013, the trial court issued an entry granting

Appellee's motion to vacate her Civil Rule 41(A) notice of dismissal.

{¶10} On March 25, 2013, Appellants filed a motion to enforce the forum

selection clause in the agreement. Appellee opposed the motion.

{¶11} On April 3, 2013, Appellants filed a motion to compel arbitration. Appellee

again opposed the motion.

{¶12} On June 12, 2013, the trial court issued an entry denying Appellant's

motion to enforce the forum selection clause, and separately issued an entry denying

Appellants’ motion to compel arbitration.

{¶13} On June 18, 2013, Appellants filed separate notices of appeal from the

June 12, 2013 judgment entries of the Knox County Court of Common Pleas denying

the motion to enforce the forum selection clause and the motion to compel arbitration.

{¶14} Appellants assign as error: Knox County, Case No. 13CA13 and 13CA14 4

{¶15} “I. APPELLEE’S NOTICE OF VOLUNTARY DISMISSAL DIVESTED THE

TRIAL COURT OF SUBJECT MATTER JURISDICTION TO DETERMINE ANY

FURTHER MATTERS.

{¶16} “II. THE TRIAL COURT ERRED BY DETERMINING THAT APPELLANTS

HAD WAIVED THEIR RIGHT TO SEEK ENFORCEMENT OF THE FORUM

SELECTION CLAUSE.

{¶17} “III. THE TRIAL COURT ERRED BY REFUSING TO ENFORCE THE

FORUM SELECTION CLAUSE IN THE AGREEMENT BETWEEN THE PARTIES.

{¶18} “IV. THE TRIAL COURT ERRED BY REFUSING TO ENFORCE THE

ARBITRATION CLAUSE IN THE AGREEMENT BETWEEN THE PARTIES.”

I

{¶19} In the first assignment of error, Appellants assert the notice of voluntary

dismissal divested the trial court of jurisdiction. We agree.

{¶20} Ohio Civil Rule 41(A) provides,

{¶21} "(A) Voluntary dismissal: effect thereof

{¶22} "(1) By plaintiff; by stipulation. Subject to the provisions of Civ. R. 23(E),

Civ. R. 23.1, and Civ. R. 66, a plaintiff, without order of court, may dismiss all claims

asserted by that plaintiff against a defendant by doing either of the following:

{¶23} "(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;

{¶24} "(b) filing a stipulation of dismissal signed by all parties who have

appeared in the action. Knox County, Case No. 13CA13 and 13CA14 5

{¶25} "Unless otherwise stated in the notice of dismissal or stipulation, the

dismissal is without prejudice, except that a notice of dismissal operates as adjudication

upon the merits of any claim that the plaintiff has once dismissed in any court."

{¶26} In this case, the trial court's January 23, 2012 Judgment Entry dismissing

the action was time stamped and filed in the trial court docket prior to Appellee's Civil

Rule 41(A) voluntary dismissal of the action without prejudice. To that extent,

Appellee’s notice of voluntary dismissal was a nullity with respect to the trial court’s

order of dismissal. Accordingly, this Court had jurisdiction to rule upon the prior appeal

and render our decision in Bumpus v. Ward, Fifth Dist. Knox. No. 2012 CA 5, 2012-

Ohio-4674.

{¶27} However, upon this Court's reversal of the trial court’s January 23, 2012

Judgment Entry dismissing the case, the trial court resumed jurisdiction. Once

remanded, we find Appellee's Civil Rule 41(A) dismissal without prejudice became

immediately effective in dismissing the case.

{¶28} Once a case is dismissed, we hold Appellee cannot reverse the effect or

impact of her voluntary dismissal; rather, pursuant to Civil Rule 41 and Ohio law,

Appellee must recommence the action.

{¶29} Accordingly, we find the trial court erred in granting Appellee's motion to

vacate the voluntary dismissal. Appellants’ first assignment of error is sustained.

II. III., & IV.

{¶30} Based upon our disposition of Appellants’ first assignment of error,

Appellants’ second, third and fourth assigned errors are moot. Knox County, Case No. 13CA13 and 13CA14 6

{¶31} The January 12, 2013 judgment entries of the Knox County Court of

Common Pleas are reversed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur