[Cite as Chef's Garden, Inc. v. Reep, 2011-Ohio-3407.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
The Chef's Garden, Inc., et al.
Appellants
Court of Appeals No. E-10-048
Trial Court No. 2010-CV-0178
v.
Jeff Reep, etc., et al.
Appellees
DECISION AND JUDGMENT
Decided: July 8, 2011
*****
David S. Pennington and Robert E. Moore, for appellants.
Brian J. Halligan and Valerie A. Lang, for appellees.
*****
HANDWORK, J.
{¶ 1} Appellants, Chef's Garden, Inc., Robert L. Jones, The Research, Education
and Charitable Association for the Benefit of Chef and Farmer, Culinary Vegetable
Institute, Inc., and Le Jardin D'Eden, LLC., appeal from a judgment by the Erie County
Court of Common Pleas, granting a motion to dismiss filed by appellees, Jeff Reep and
Ashland Comfort Control, Inc. For the reasons that follow, we reverse the judgment of
the trial court.
{¶ 2} Chef's Garden is a vegetable farm that leases a commercial building from
Culinary Vegetable Institute, Inc. On or about July 30, 2002, Chef's Garden, by and
through its Secretary, Robert L. Jones, contracted with Ashland Comfort Control
("Ashland"), by and through its President and Secretary, Jeff Reep, to provide HVAC
equipment and services at the Culinary Vegetable Institute, Inc. building.
{¶ 3} After work on the contract began, Chef's Garden became dissatisfied with
Ashland Comfort's services and, in December 2002, filed a complaint against Ashland for
breach of contract and other claims. On September 14, 2009, the matter went to a jury
trial.
{¶ 4} Halfway through the second day of the trial, a problem occurred during
Robert L. Jones's cross-examination. According to Ashland, at this point Chef's Garden
realized that "although it had standing to prosecute the lawsuit[,] it nevertheless could not
prove its claimed damages[, because] Chef's Garden did not own the improved real estate
where the work was performed."
{¶ 5} Appellants assert that during Jones's testimony, "it became clear that a full
and fair adjudication would require joining third parties who were not before the court as
parties. These parties were primarily third-party beneficiaries of the contract."
{¶ 6} The evidence is undisputed in this case that Culinary Vegetable Institute is a
separate business that, like Chef's Garden, is owned by the Jones family. Also
2.
undisputed is that Culinary Vegetable Institute rents real estate for its building from Le
Jardin D'Eden LLC. Le Jardin D'Eden LLC, is yet another Jones family-owned business.
{¶ 7} Veggie U., also a Jones family-owned business, exists, according to
appellants, "for the purposes of research and education regarding the benefits and
preparation of vegetables." Appellants state in their appellate brief that Veggie U.
conducts certain of its business in the Culinary Vegetable Institute building.
{¶ 8} As indicated in the transcript of the original action, the trial court was
initially going to dismiss the action sua sponte and without prejudice, by way of a journal
entry.1 The transcript makes clear that it was the plaintiff's intent to dismiss the matter
without prejudice and to preserve the right to re-file the matter in the future. Thereafter,
counsel for the defense argued that because the dismissal was a "unilateral act" –
presumably because the defendant did not agree to the dismissal – it should occur by
"notice."
{¶ 9} Plaintiff did not object to this change, and subsequently filed a notice of
voluntary dismissal "pursuant to Civil Rule 41(A)(1)(a)," and "without prejudice."
Thereafter, the plaintiff filed a motion seeking the trial court's permission to voluntarily
dismiss the action without prejudice. In a judgment entry dated September 30, 2009, the
trial court granted the plaintiff's written motion.
{¶ 10} On March 3, 2010, the plaintiff's action was re-filed in the instant case,
with new plaintiffs named in the complaint. On April 30, 2010, appellees filed a motion
1
Pursuant to this court's order of March 23, 2011, only pages 136, 189, 200 and
201 of the trial transcript remain as part of the record in this case.
3.
to dismiss the action on the ground that it was barred by res judicata. The trial court
granted the motion by judgment entry dated July 29, 2010. As part of its analysis, the
trial found that the notice of voluntary dismissal that was filed by Chef's Garden, Inc. in
the earlier action "necessarily divest[ed ] [the trial court] of further jurisdiction [in that
action] and effectively dismiss[ed] the case on the merits, with prejudice as to future
action."
{¶ 11} Appellants timely filed their notice of appeal, asserting the following
assignments of error:
{¶ 12} 1. "The trial court erred when it deemed a dismissal for the purpose of
joining necessary parties a dismissal on the merits, with prejudice."
{¶ 13} 2. "The trial court erred when it determined that the claims of plaintiffs
who were not a party to the original case (Case No. 04-CV-762), were barred in the refiled case (Case No. 2010-CV-178) by the doctrine of res judicata."
{¶ 14} 3. "The trial court erred when it failed to consider, or rule upon, the
equitable doctrine of invited error."
{¶ 15} Appellants argue in their first assignment of error that the trial court erred
in deeming the dismissal in the earlier action a dismissal on the merits, with prejudice.
We agree.
{¶ 16} Civ.R. 41 pertinently provides:
{¶ 17} "(A) Voluntary dismissal: effect thereof.
4.
{¶ 18} "(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:
{¶ 19} "(a) filing a notice of dismissal at any time before the commencement of
trial * * *;
{¶ 20} "(b) filing a stipulation of dismissal signed by all parties who have
appeared in the action.
{¶ 21} "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."
{¶ 22} Thus, Civ.R. 41(A) gives a plaintiff authority to dismiss an action without a
court order under just two circumstances: (1) where the plaintiff files notice of dismissal
before the commencement of trial; or (2) where the plaintiff files a stipulation of
dismissal that has been signed by all of the parties who have appeared in the action.
Civ.R. 41(A)(1). Inasmuch as the defendant in the original action clearly did not enter
into a stipulation of dismissal, Civ.R. 41(A)(1)(b) is inapplicable to the instant analysis.
Accordingly, any dismissal by the plaintiff, alone, would have to have occurred by
notice.
{¶ 23} As indicated by appellees, the filing of a notice of dismissal, pursuant to
Civ.R. 41(A)(1)(a), results in an immediate dismissal of the action, which divests the trial
5.
court in which the notice is filed of further jurisdiction to enter an order or render
judgment. Otworth v. Dept. of Mental Health (Oct. 13, 1992), 10th Dist. No. 92AP-555.
{¶ 24} Here, however, Chef's Garden did not file its notice of voluntary dismissal
before the commencement of trial. As indicated above, the notice was not filed until the
second day of trial, and was filed in response to answers that were given by appellant
Robert L. Jones on cross-examination.
{¶ 25} Because the notice was not filed before the commencement of trial, the
notice was not filed in conformity with the express provisions of Civ.R. 41(A)(1)(a).
{¶ 26} We conclude that because Civ.R. 41(A)(1)(a) does not provide for, or
otherwise contemplate, a plaintiff's voluntarily dismissing an action by notice after the
commencement of trial, the purported notice of voluntary dismissal pursuant to Civ.R.
41(A)(1)(a) is a nullity and, as such, did not divest the trial court of jurisdiction. Cf.
Borchers v. Winzeler Excavating Co. (April 10, 1992), 2d Dist. No. 13297 (holding that
because Civ.R. 41(A)(1) does not provide for, or otherwise contemplate, the voluntary
dismissal, without prejudice, of less than a plaintiff's entire cause of action, the plaintiffs'
purported voluntary dismissal, without prejudice, of their third claim for relief was a
nullity).
{¶ 27} Civ.R. 41(A)(2) relevantly provides:
{¶ 28} "By order of court. Except as provided in division (A)(1) of this rule, a
claim shall not be dismissed at the plaintiff's instance except upon the order of court and
upon such terms and conditions as the court deems proper. * * * Unless otherwise
specified in the order, a dismissal under division (A)(2) of this rule is without prejudice."
6.
{¶ 29} Ohio law is well settled that a voluntary dismissal without prejudice
pursuant to Civ.R. 41(A)(2) is not an adjudication on the merits. Siket v. L.K. Comstock
& Co., Inc. (Sep. 30, 1987), 11th Dist. No. 12-080.
{¶ 30} Because the originally filed notice of voluntary dismissal was a nullity, we
conclude that the later filed motion to dismiss, without prejudice, that was filed by the
plaintiff in the original action and the judgment entry granting that motion are the
documents that ultimately terminated that action.
{¶ 31} The trial court expressly stated in its September 30, 2009 judgment entry
granting the motion that the matter was dismissed without prejudice, and that the plaintiff
retained the right to re-file at a later date.
{¶ 32} This dismissal, which was, in fact, pursuant to Civ.R. 41(A)(2), was not an
adjudication on the merits. See Siket, supra.
{¶ 33} For all of the foregoing reasons, appellants' first assignment of error is
found well-taken. Based upon this conclusion, we find appellants' second and third
assignments to be rendered moot. Accordingly, the judgment of the Erie County Court of
Common Pleas is reversed. Appellees are ordered to pay the costs of this appeal pursuant
to App.R. 24.
JUDGMENT REVERSED.
7.
Chef''s Garden, Inc.
v. Reep
E-10-048
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See,
also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
_______________________________
JUDGE
Mark L. Pietrykowski, J.
Thomas J. Osowik, P.J.
CONCUR.
_______________________________
JUDGE
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio's Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court's web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
8.
