State Ex Rel. Fifth Third Mortgage Co. v. Russo
129 Ohio St. 3d 250
| Ohio | 2011Background
- Fifth Third filed a foreclosure action; loan-modification increased debt and stated it did not release the note.
- Fifth Third voluntarily dismissed the foreclosure case under Civ.R. 41(A)(1) without prejudice.
- Judge Russo struck the dismissal as improper, and scheduled a show-cause contempt hearing.
- Fifth Third sought writs of mandamus and prohibition to vacate the striking order and bar further proceedings.
- Appellate court granted mandamus to vacate the striking order and prohibition to halt the foreclosure claim; cross-appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction after dismissal | Russo claims Civ.R. 41(A)(1) dismissal divests jurisdiction. | Fifth Third argues the court can address collateral issues. | Court properly issued mandamus/prohibition to vacate striking order; no jurisdiction after dismissal. |
| Effect of dismissal without prejudice | Dismissal without prejudice valid under Civ.R. 41(A)(1). | Loader of settlement could preclude refiling, citing loan modification. | Dismissal without prejudice effective upon filing; no further action required. |
| Contempt proceeding post-dismissal | Contempt hearing legitimate collateral issue. | Contempt appellate remedy available; proceeding should not occur. | Contempt proceeding can be reviewed on appeal; prohibition proper to prevent it. |
| Cross-appeal relief | Contempt proceeding should be prohibited. | Contempt issue may proceed; writ of prohibition inappropriate. | Appellate court correctly denied prohibition as to contempt; majority affirms overall relief. |
Key Cases Cited
- Mayer v. Henson, 97 Ohio St.3d 276 (2002-Ohio-6323) (prohibition/mandamus when lack of jurisdiction)
- Powell v. Markus, 115 Ohio St.3d 219 (2007-Ohio-4793) (jurisdictional issues and dismissals)
- Hummel v. Sadler, 96 Ohio St.3d 84 (2002-Ohio-3605) (jurisdiction after Civ.R. 41(A)(1) dismissal)
- Benbow v. Runyan, 99 Ohio St.3d 410 (2003-Ohio-4127) (exceptional collateral issues after dismissal)
- Fogle v. Steiner, 74 Ohio St.3d 158 (1995) (rules interpretation and jurisdictional principles)
- Ahmed v. Costine, 100 Ohio St.3d 36 (2003-Ohio-4776) (contempt and collateral issues after dismissal)
- Zimmie v. Zimmie, 11 Ohio St.3d 94 (1984) (dismissal terminates action; no jurisdiction)