Garr v. Columbia Polymers, Inc.
2016 Ohio 7555
Ohio Ct. App.2016Background
- Jeanette M. Garr originally sued Columbia Polymers, Inc. and David Zuppan in 2007 alleging various contract, fiduciary, fraud, unjust enrichment, and injunctive/declaratory claims related to a 2006 patent and work performed 2001–2005.
- The 2007 case (2007 CV 1250) was voluntarily dismissed by Garr in 2008 after summary judgment was granted as to Columbia.
- Garr refiled in 2009 (2009 CV 2588), added an alter-ego/piercing-the-veil claim against Zuppan, and litigated through cross-motions for summary judgment and other motions; a motion to enforce settlement was denied in May 2016.
- On July 1, 2016 the trial court sua sponte dismissed the 2009 case without prejudice for want of prosecution under Trumbull County Sup.R. 40(A).
- Garr appealed the July 1, 2016 dismissal, arguing the entry was a final appealable order or that the case should be remanded for the trial court to determine whether R.C. 2305.19 (the savings statute) had been invoked.
- Appellees responded that the savings statute had been previously invoked and that the dismissal therefore was a final order; the appellate court issued a show-cause and then considered jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the July 1, 2016 dismissal is a final appealable order | Garr contends the dismissal effectively allows refiling under the savings statute and thus should be treated as final or remanded to decide the savings statute | Columbia/Zuppan argue the savings statute was already invoked and the dismissal is final | Dismissal without prejudice under Sup.R. 40(A) is not a final appealable order; appellate court lacks jurisdiction and appeal dismissed |
| Whether the savings statute (R.C. 2305.19) was invoked by Garr’s refiling | Garr asserts she may have invoked the savings statute by refiling after earlier dismissal | Appellees claim the savings statute was already used, supporting finality | Court finds savings statute was not invoked on refiling because the claims remained within the statute of limitations when refiled in 2009 |
| Applicability of the “double dismissal” rule (two-dismissal rule) | Garr implies prior dismissal history may render current dismissal final | Appellees assert prior dismissals make dismissal final | Two-dismissal rule applies only to two voluntary dismissals under Civ.R. 41(A)(1); because the second dismissal here was by court order (Sup.R. 40(A)), the rule does not apply |
| Whether an involuntary dismissal without prejudice is final | Garr seeks review of the court-ordered dismissal | Appellees maintain circumstances support finality | Court reiterates that involuntary dismissals without prejudice are generally not final appealable orders |
Key Cases Cited
- Noble v. Colwell, 44 Ohio St.3d 92 (jurisdiction requires final order)
- Gen. Acc. Ins. Co. v. Ins. of N. Am., 44 Ohio St.3d 17 (appellate jurisdiction limited to final orders)
- Thomas v. Freeman, 79 Ohio St.3d 221 (savings statute may be used only once)
- Triplett v. Beachwood Vill., Inc., 158 Ohio App.3d 465 (savings statute applies only when statute of limitations has expired)
- Denman v. New Carlisle, 86 Ohio St.3d 594 (first voluntary dismissal leaves parties as if no suit filed)
- Forshey v. Airborne Freight Corp., 142 Ohio App.3d 404 (second voluntary dismissal treated as dismissal on merits under two-dismissal rule)
- EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240 (two-dismissal rule does not apply where second dismissal is by court order)