Chadwick v. Barba Lou, Inc.

431 N.E.2d 660, 69 Ohio St. 2d 222, 23 Ohio Op. 3d 232, 1982 Ohio LEXIS 561

• Court: Ohio Supreme Court
• Decided: February 17, 1982
• Docket: No. 81-344
• Status: Published

Opinions

Sweeney, J.

I.

This action was filed more than two years from the date plaintiff’s cause of action accrued. Thus it is barred by R. C. 2305.10, the statute of limitations, unless it comes within the scope of R. C. 2305.19, the savings statute, or some other exception. R. C. 2305.19 provides, in part:

“In an action commenced * * * if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year after such date. * * * ” (Emphasis added.)

Appellant herein contends that the dismissal of his prior action constituted a “failure] otherwise than upon the merits” as that phrase is used in the statute, and that the instant action was timely filed under the authority of R. C. 2305.19.

Since the adoption of the Rules of Civil Procedure, the dismissal of actions is governed by Civ. R. 41. Civ. R. 41(A)¹ governs dismissals initiated by the plaintiff.² Under Civ. R. 41(A)(1)(a) the plaintiff may, in the absence of a dependent counterclaim, unilaterally dismiss his action before the commencement of trial simply by filing a notice of dismissal. Civ. R. 41(A)(1)(b) authorizes the dismissal of actions by stipulation of all parties. A dismissal under Civ. R. 41(A)(1), whether by notice or stipulation, is without prejudice “[ujnless otherwise stated in the notice of dismissal or stipulation,” however, “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.” Civ. R. 41(A)(2) provides for the dismissal of actions by order of the court upon plaintiffs motion to dismiss. Such a dismissal is subject to “such terms and conditions as the court deems proper,” and is, by express provision of the rule, a dismissal without prejudice unless otherwise specified in the court’s order.

The entry dismissing plaintiff-appellant’s first action does not expressly designate the subdivision of Civ. R. 41 pursuant to which it was made. However, it is apparent that the dismissal was made under the authority of Civ. R. 41(A)(2). The entry expressly states that the dismissal was made “[u]pon motion of the plaintiff.” It was signed by the judge and constituted an order of the court.³

As noted supra, such a Civ. R. 41(A)(2) dismissal is without prejudice unless otherwise specified in the order. In this instance the order expressly provided that the dismissal was without prejudice. What effect, if any, does the fact that the dismissal was “without prejudice” have in determining whether it constituted a failure otherwise than upon the merits so as to bring the subsequently filed action within the scope of the savings statute?

The Staff Note to Civ. R. 41 provides some guidance. It reads, in part:

“ * * * [Civ. R. 41] provides that voluntary or involuntary dismissal, depending upon the particular circumstances, may be with or without prejudice. If the 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.” (Emphasis added.)

Thus, an action dismissed “with prejudice” is vulnerable to the defense of res judicata. Neither the Rule itself nor the Staff Note pertinent thereto, however, expressly states the converse of the proposition, i.e., whether a dismissal without prejudice constitutes an action terminated “otherwise than upon the merits.”

We find that this latter proposition is true. That dismissal “without prejudice” is one “otherwise than upon the merits” not only accords with what can reasonably be assumed to have been the understanding of the court and the parties, but also is consistent with the interpretation given the phrase generally.⁴

Indeed, in Siegfried v. Railroad Co. (1893), 50 Ohio St. 294, the seminal Ohio case holding that a truly voluntary dismissal does not constitute a “fail[ure] otherwise than upon the merits” for purposes of the savings statute, the court assumed sub silentio that a voluntary dismissal is “otherwise than upon the merits.” The issue in that case centered solely upon whether a voluntary, unilateral withdrawal by the plaintiff constituted a “failure” as that word was used in R. S. 4991 (predecessor of R. C. 2305.19). In Siegfried the court answered the question in the negative, holding that a voluntary dismissal is not a “failure” for purposes of R. S. 4991. The court reasoned “ * * * [t]o fail, implies an effort or purpose to succeed. One cannot, properly, be said to fail in anything he does not undertake, nor, in an undertaking which he voluntarily abandons.”

In a subsequent case, Cero Realty Corp. v. American Mfgs. Mutual Ins. Co. (1960), 171 Ohio St. 82, the court modified the Siegfried rule. The court held there that not all dismissals initiated by the plaintiff, are necessarily “voluntary” as that term was used in the Siegfried case. In Cero Realty, the plaintiff dismissed its action after its petition had twice been struck down on the defendants’ demurrers. Upon refiling, the plaintiff asserted that its otherwise time-barred claims came within the savings statute. The court held that R. C. 2305.19 is to be “given a liberal construction to permit the decision of cases upon their merits rather than upon mere technicalities of procedure.” Although the plaintiff elected to dismiss his cause, that election was not held to be “voluntary” because it was prompted by adverse court action. Because the dismissal was not truly voluntary, as had been the situation in Siegfried v. Railroad Co., supra, the dismissal was found to be a “failure” for purposes of R. C. 2305.19.⁵

The most recent statement by this court pertaining to the issue at hand was made in Beckner v. Stover (1969), 18 Ohio St. 2d 36. The syllabus to that case reads:

“A plaintiff has not ‘failed otherwise than upon the merits,’ within the meaning of Section 2305.19, Revised Code, where he has voluntarily dismissed his timely commenced action without prejudice in response to adverse rulings of the trial court, unless those rulings will prevent a trial of the cause upon its merits. * * * ”⁶

Notably, all three of the foregoing cases were decided prior to the adoption of the Rules of Civil Procedure. We believe that the line of cases beginning with Siegfried v. Railroad Co., supra, should be re-examined in light of those rules.

Prior to the adoption of the Civil Rules, dismissals were governed by statute. Under R. C. 2323.05 a plaintiff could dismiss his action at any time prior to its final submission to the jury or court. The court could order a dismissal in response to certain types of plaintiff misconduct. However, under this pre-Rule statutory procedure, these dismissals, whether voluntarily initiated by the plaintiff or resulting from the motion of the defendant or the court, could only be made without prejudice. Similarly, under pre-Rule practice there was no limit to the number of voluntary dismissals a plaintiff might make. Under these circumstances the possibility of plaintiff abuse existed. A plaintiff could harass a defendant by repeatedly filing actions based on the same claim, each time voluntarily dismissing the case just prior to adjudication. A review of the preRules cases justifies the conclusion that the phrase “fails otherwise than upon the merits” in R. C. 2305.19 was narrowly construed in order to provide a limit to an otherwise unlimited possibility of abuse under code procedure.⁷ That this policy consideration was a primary justification for the court’s holding is most overtly disclosed in Beckner v. Stover, supra, at page 40, where the court noted that to reject the Siegfried rationale “would be to establish a rule whereby litigants could substitute a voluntary dismissal without prejudice for an appeal from claimed errors occurring during a trial. Under such a practice, parties could try and retry their causes indefinitely until the most favorable circumstances for submission were finally achieved. In our opinion, Section 2305.19, neither provides for nor permits such a practice.” (Emphasis added.)

Since the adoption of the Civil Rules, however, it is no longer necessary to narrowly define the phrase “fails otherwise than upon the merits” in order to prevent the unlimited abuse feared by the court in earlier cases. Under Civ. R. 41(A)(1) a plaintiff may only once unilaterally dismiss an action while reserving his right to refile. A subsequent dismissal by notice operates as an adjudication upon the merits and is res judicata. Similarly, the Rule forbids a plaintiff from unilaterally withdrawing by notice once trial has been commenced. After commencement of trial the plaintiff must have the concurrence to the withdrawal of all other parties (dismissal by stipulation), or subject himself to the court’s discretion by moving for a court-ordered dismissal pursuant to Civ. R. 41(A)(2). Indeed the possibility of plaintiff abuse is almost entirely mitigated where a dismissal is made pursuant to Civ. R. 41(A)(2) and, thus, is subject totally to the control of the court, acting within its sound discretion.

In light of these changed procedural circumstances, and in order to give the savings statute a liberal construction, where a dismissal is ordered pursuant to Civ. R. 41(A)(2), we find little justification for clinging to the Siegfried definition of the word “fails” in R. C. 2305.19.⁸

Other state courts have found voluntary dismissals to be “failures” for purposes of savings provisions similar to R. C. 2305.19, because the plaintiff has failed to obtain the object of his suit. McWhirt v. McKee (1870), 6 Kan. 412; Meyer v. Wilson (1930), 131 Kan. 717, 293 P. 738; Wilson v. Wheeler (1911), 28 Okla. 726, 115 P. 1117. Such an interpretation is consistent with the definition commonly accorded the word “failure.”⁹ We will not violate the policies underlying statutes of limitations of preventing unfair surprise and delay in asserting claims by joining those jurisdictions, as the defendant was made aware of the existence of the claim during the original limitations period.

Because the dismissal without prejudice ordered in plaintiff-appellant’s first action pursuant to Civ. R. 41(A)(2) was both a “failure” of the plaintiff’s action as well as an order based “otherwise than on the merits,” the instant action falls within R. C. 2305.19, and was timely filed.

II.

In describing his fall, the plaintiff testified that, in starting his descent down the cement steps from the Klip Inn, his foot “flew out from under him.” He described the steps as being slanted and broken with slight depressions, and covered with slush and ice. He testified that there was no railing to which he could have held.

Although a negligence action by a business invitee will not lie where the sole negligence asserted is a failure for an unreasonable time to remove natural accumulations of ice and snow, Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St. 2d 38, here plaintiff’s testimony constituted evidence that the combination of circumstances, including defects and depressions in the steps, adverse weather conditions and lack of a handrail, caused a highly dangerous condition beyond the reasonable expectation of the traveler. The issue of negligence was properly before the jury. See Cash v. Cincinnati (1981), 66 Ohio St. 2d 319.

For the foregoing reasons, the judgment of the Court of Appeals is reversed.

Judgment reversed.

Celebrezze, C. J., W. Brown, Locher and C. Brown, JJ., concur. Holmes, J., concurs in syllabus but dissents from the judgment. Krupansky, J., concurs in part and dissents in part.

1 Civ. R. 41 provides:

“(A) Voluntary dismissal: effect thereof.

“(1) By plaintiff; by stipulation. Subject to the provisions of Rule 23(E) and Rule 66; 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 a counterclaim which cannot remain pending for independent adjudication by the court has been served by the defendant or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. 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.

“(2) By order of court. Except as provided in subsection (1) an action 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. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.”

2 See Staff Note to Civ. R. 41(B): “ * * * An involuntary dismissal is initiated by the defendant or by the court, voluntary dismissals being limited to the initiative of the plaintiff.” Although Civ. R. 41(A) dismissals frequently are denominated “voluntary” dismissals, a dismissal entered pursuant to Civ. R. 41(A)(2), although initiated by the plaintiffs motion, may fall short of being “voluntarily” made, as that word is commonly understood, due to the court’s supervision of its terms. See Webster’s New Collegiate Dictionary: “voluntary 1: proceeding from the will or from one’s own choice or consent 2: unconstrained by interference * * * .” (Emphasis added.)

3 Although counsel for both the plaintiff and the defendant affixed their signatures in approval of the entry, the document would have been without legal effect absent the judge’s signature. The appearance of the signatures of counsel in approval does not justify a conclusion that the dismissal was made by notice (Civ. R. 41[A][1][a]) or by stipulation of the parties (Civ. R. 41 [A] [1] [b]).

4 In defining the phrase “without prejudice” Black’s Law Dictionary (5 Ed.) states that when included in an order the words “show that the judicial act is not intended to be res judicata, of the merits of the controversy.” See, also, Palmer v. Rucker (1972), 289 Ala. 496, 503, 268 So. 2d 773. (“The words ‘without prejudice’ in their general adaptation, when used in a decree, mean that there is no decision of the controversy on its merits, * * * ”); Recent Cases, 29 Univ. of Cincinnati L. Rev. 516. (“A dismissal without prejudice is not a disposition upon the merits.”)

5 Although ostensibly upholding Siegfried, the Cero Realty Corp. court suggested in dicta that all voluntary dismissals should be afforded the benefits of the savings statute. As a result, at least one court thereafter concluded that any voluntary nonsuit or dismissal under R. C. 2323.05(A) qualified as one which “fails” within the meaning of the savings statute. Beckner v. Stover (1968), 13 Ohio App. 2d 222.

6 Although the Beckner court purported to distinguish the Cero Realty case and not overrule it, had the Beckner rule been applied to the facts of Cero Realty, it is unlikely that the savings statute would have been held applicable. The adverse ruling of the trial court in that case did not technically prevent a trial of the cause upon the merits. Rather, the plaintiff could have filed a second amended petition and further prosecuted the case. See Recent Cases, 29 Univ. of Cincinnati L. Rev. 516, 517.

7 See Browne, Voluntary Dismissals and the Savings Statute: Has Rule 41(A) Changed the Law?, 23 Cleve. St. L. Rev. 215, fn. 24, at page 223: “Under the Code, nothing could be done to curb voluntary dismissals and refilings occurring before the statute of limitations had run, since §2323.05 provided for unlimited voluntary dismissals in that situation. * * * But if the voluntary dismissal and the refiling both took place after the statute had run, the second action could be barred by judicial construction which limited the word ‘fail’ as used in §2305.19. Thus, under the Code, this latter is the only instance in which voluntary dismissals could be controlled.”

8 Because our inquiry herein is directed to a Civ. R. 41(A)(2) dismissal, we express no opinion as to the continued vitality of the Siegfried rule where a voluntary dismissal is made pursuant to notice or stipulation.

9 Webster’s New Collegiate Dictionary defines the verb “fail” as “to fall short” or “to be unsuccessful.” Black’s Law Dictionary (5 Ed.) defines “failure” as an “abandonment or defeat.”