2004 Ohio 865 | Ohio Ct. App. | 2004
{¶ 2} "It is a fundamental tenant of the law that a voluntary dismissal of an action pursuant to Civ.R. 41(a)(1) terminates the action as to all claims and all parties and deprives the court of jurisdiction."
{¶ 3} This sentence should have read as follows:
{¶ 4} "It is a fundamental tenet of the law that a voluntary dismissal of an action pursuant to Civ.R. 41(a)(1) terminates the action as to all claims and all parties and deprives the court of jurisdiction."
{¶ 5} Also, the first sentence in the last paragraph on page six contained an error in the sentence which reads:
{¶ 6} "Perhaps the court had other reasons for proceeding with trial, but the record does indicate what they might have been."
{¶ 7} This sentence should have read as follows:
{¶ 8} "Perhaps the court had other reasons for proceeding with trial, but the record does not indicate what they might have been."
{¶ 9} As so amended, the journal entry and opinion shall stand in full force and effect as to all its particulars. the corrected entry is attached.
Ann Dyke and Sean C. Gallagher, JJ., concur.
The parties make references to matters that do not appear on the record filed on appeal. App.R. 9 and 12(A)(1)(b) limit our review to the record provided to us by the appellant. And that record can consist only of materials in the record which were before the trial court. See State v. Ishmail (1978),
We have stated these principles of appellate review because they inform our opinion that the court lacked jurisdiction to proceed with the case once a notice of voluntary dismissal had been filed. It is a fundamental tenet of the law that a voluntary dismissal of an action pursuant to Civ.R. 41(A)(1) terminates the action as to all claims and all parties and deprives the court of jurisdiction. "`It is axiomatic that such dismissal deprives the trial court of jurisdiction over the matter dismissed. After its voluntary dismissal, an action is treated as if it had never been commenced. * * *'" Gilbert v. WNIR 100 FM (2001),
The right to voluntarily dismiss an action is absolute, subject to certain limitations. For example, if trial has commenced, there is no right of dismissal. See Civ.R. 41(A)(2). Moreover, a properly filed counterclaim or cross-claim which states a legally sufficient basis to confer jurisdiction on the court survives the dismissal. Alliance Group, Inc. v. Rosenfield (1996),
It follows that MRK's motion to enforce the settlement agreement after the notice of dismissal had been filed was a nullity. Not only was no case pending before the court, the prior action was considered to have never been commenced. See Denham,Admr. v. City of New Carlisle (1999),
There are times when a dismissal is conditional, but those circumstances do not apply here. In Berger v. Riddle (Aug. 18, 1994), Cuyahoga App. Nos. 66195, 66200, we stated, "when an action is dismissed pursuant to a stated condition, such as the existence of a settlement agreement, the court retains the authority to enforce such an agreement in the event the condition does not occur." This case was not conditionally dismissed on the basis of a settlement agreement, and the record in this case does not contain a settlement agreement signed by the court. In short, the court had not been part of the settlement so no conditions could have been placed on ASI's right to dismiss.
The court's stated basis for proceeding with the hearing on damages was that the parties had agreed to let the court proceed with a hearing. Regardless of what the parties agreed to, they could not confer subject matter jurisdiction on the court where none existed. Fox v. Eaton Corp. (1976),
Perhaps the court had other reasons for proceeding with trial, but the record does not indicate what they might have been. Because we are limited to considering only those matters that are properly in the record, we find the court lacked jurisdiction to proceed with the case once ASI filed its notice of appeal.1 All rulings by the court that were issued after the dismissal were a nullity.
Judgment vacated.
This cause is vacated.
It is, therefore, ordered that said appellant recover of said appellee its costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Ann Dyke, J., and Sean C. Gallagher, J., Concur.