This is аn appeal from a judgment entered by the Scioto County Common Pleas Court granting appellees’ motions to dismiss a medical malpractice complaint filed by William T. Conley, plaintiff below and appellant herein.
Appellant assigns the following errors:
FIRST ASSIGNMENT OF ERROR:
“The ruling of the trial court granting the appellee’s motion to dismiss was in error because the plaintiff-appellant’s complaint was in full compliance with O.R.C. 2307.42.”
SECOND ASSIGNMENT OF ERROR:
“The ruling of the trial court granting the appellee’s motion to dismiss was in error because a plaintiff in a medical malpractice action can rely on res ipsa loquitur even though specific acts of negligence are alleged in the complaint.”
THIRD ASSIGNMENT OF ERROR:
“The ruling of the trial court granting the appellee’s motion to dismiss was in еrror because a plaintiff in a medical malpractice action can rely on res ipsa loquitur even though the alleged malpractice involves multiple defendants who had control of the instrumentality, procedure or оccurrence that caused the injury.”
FOURTH ASSIGNMENT OF ERROR:
“The ruling of the trial court granting the appellees’ motion to dismiss was in error because O.R.C. 2307.42 is unconstitutional in that it violates the equal protection guarantees of the Constitution of the United States and of the state of Ohio.”
FIFTH ASSIGNMENT OF ERROR:
“The ruling of the trial court granting the appellees’ motion to dismiss was in error because O.R.C. 2307.42 is unconstitutional in that it violates Section 5(B), article IV of the Ohio Constitution.”
SIXTH ASSIGNMENT OF ERROR:
“The ruling of the trial court granting the appellees’ motion tо dismiss was in error because O.R.C. 2307.42 is unconstitutional in that it violates section 1, article IV of the Constitution of the state of Ohio.”
SEVENTH ASSIGNMENT OF ERROR 1 :
“The trial court abused its discretion and erred by rendering its decision before ruling on plaintiff-appellant’s motion for leave to amend, supplement and consolidated plaintiff’s responses to the defendants’ motions to dismiss.”
EIGHTH ASSIGNMENT OF ERROR:
“The trial court committed error by signing and filing the judgment entry after the plaintiff-appellant had filed a notice of dismissal pursuant to Civil Rule 41(A)(1).”
Appellant underwent arthroscopic knee surgery on November 7, 1988. During the surgery, appellant became cyanotic and required reintubation. Rather than being released later that day as originally planned, appellant spent the night in the intеnsive care unit.
Exactly two years after the surgery, appellant brought the instant action against Nurse Anesthetist Peggy Jenkins, Dr. William E. Daehler, Dr. Duane Marchyn, and Scioto Memorial Hospital. The complaint alleged the defendants “impropеrly and negligently intubated plaintiff and improperly and negligently administered anesthesia” to plaintiff.
Appellant’s attorney attached an affidavit to the complaint. The affidavit stated: (1) appellant intends to rely on the theory of res iрsa loquitur to establish proof of the allegations in the complaint, and (2) the facts and circumstances set forth in the complaint do not require proof by an expert witness.
Each of the four defendants filed a motion to dismiss the comрlaint on the grounds appellant failed to comply with R.C. 2307.42 by attaching to the
On April 20, 1990, the trial court issued four decisions, each granting a different defendant’s motion to dismiss. In each decision the court directed each counsel to prepare a judgment entry in accordance with the decision. On April 24,1990, appellant filed a notice of dismissal, pursuant to Civ.R. 41(A)(1) and R.C. 2305.19, that stated as follows:
“Pursuant to Rule 41(A)(1) of the Ohio Rules of Civil Procedure and Section 2305.19 of the Ohio Revised Code, Plaintiff hereby dismisses this action without prejudice.”
On July 18, 1990, the court below entered a judgment prepared by attorney Robert E. Dever serving as counsel for the hospital and the nurse anesthetist. The judgment granted the motions to dismiss filed by the hospital and the nurse anesthetist. Although the trial court’s July 18, 1990 judgment entry did not specifically mention the remaining two defendants, the motions filed by the hospital and the nurse anesthetist had requested the court to “dismiss this action for the reason that the Court lacks jurisdiction of the subject matter.” (Emphasis added.)
Appellant filed a timely notice of appeal from the July 18, 1990 judgment. The hospital and the nurse filed an appellate brief urging affirmance. The remaining defendants did not enter an appearance in this appeal.
In this appeal the appellant asserts that because he filed a notice of dismissal, pursuant to Civ.R. 41(A)(1), and voluntarily dismissed the action, the trial court lackеd jurisdiction to issue the judgment entry granting the motions to dismiss.
Appellees disagree and contend that since appellant filed his Civ.R. 41(A)(1) notice of dismissal four days after the court issued and, as appellees contend, journalized its decision to grant the four motions to dismiss, the notice of dismissal did not dismiss the action. We find no merit to appellees’ contention.
First, we will discuss appellees’ contention that “by filing its decision on April 20, 1990, the trial court journalized its decision * * When deciding whether a particular document constitutes a judgment entry, appel
We now turn to the issue of whether appellant’s Civ.R. 41(A)(1) notice of dismissal precludes the court’s July 18,1990 judgment entry dismissing the action. Civ.R. 41(A)(1) allows a plaintiff to voluntarily dismiss an action at any time prior to trial by filing a notice of dismissal. The rule 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 рending for independent adjudication by the court has been served by the defendant * * *. 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.” (Emphasis added.)
The notice of dismissal dismisses the action without prejudice, unless the plaintiff has previously dismissed an action involving the same claim.
In
Frysinger v. Leech
(1987),
“A voluntary dismissal pursuant to Civ.R. 41(A)(1) constitutes a failure otherwise than upon the merits within the meaning of the savings statute, R.C. 2305.19.”
The savings statute, R.C. 2305.19, permits appellant to refile his claims against appellees within one year of his Civ.R. 41(A)(1) notice of dismissal. See
Costell v. Toledo Hosp.
(1988),
“The language of Civil Rule 41(A)(1) and (C) requires no construction. It gives either pаrty an absolute right, regardless of motives, to voluntarily terminate its cause of action at any time prior to the actual commencement of the trial. * * * While such rule may be subject to abuse, as was recognized by the civil rules committee, the only limitation imposed is that a notice of dismissal operates as an adjudication upon the merits when filed by a party who once previously dismissed an action based on the same claim.” (Emphasis added.)
Twelve years later in
Hamilton Die Cast, Inc. v. Brunswick Administrative Services, Inc.
(Aug. 4, 1987) Montgomery App. No. 10287, unreported,
Similarly, the Eighth District Court of Appeals in
Torres v. Sears, Roebuck & Co.
(1980),
“Plaintiff timely appeals, contending in its sole assignment of error that the trial court erred in dismissing the complaint after it has previously filed a notice of dismissal pursuant to Civ.R. 41(A)(1)(a). We find plaintiffs contention to be well taken.
“A plaintiff has an absolute right to voluntarily dismiss a complaint without order of the court by filing a notice of dismissal at any time before commencement of trial, unless the defendant has served a counterclaim which cannot remain pending for independent adjudication. Civ.R. 41(A)(1). This court has repeatedly held that where no such counterclaim has been asserted, a timely filed notice of dismissal without prejudice divests the trial court of authority to subsequently dismiss the action with prejudice. [Citations omitted.] Once plaintiff filed its notice of dismissal, no action remained pending before the court.” (Emphasis added.)
After a voluntary dismissal, the parties are in the same position as if the action had never been commenced. In
Zimmie v. Zimmie
(1984),
“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. Goldstein v. Klivans, Inc. (1931),10 Ohio Law Abs. 133 . Jurisdiction cannot be reclaimed by the court.”
See, also,
James v. Elward
(Jan. 22, 1991), Ross App. No. 1630, unreported,
The Civ.R. 41(A)(1) right to file a notice of dismissal applies even where a plaintiff files the notice of dismissal after learning that the court intends to journalize an adverse decision. In
Standard Oil Co., supra,
the counterclaim-ant filed a Civ.R. 41(A)(1) notice of dismissal after the court rendered an adverse decision on the merits but before the court journalized that decision. Similarly, in the first lawsuit brought by the plaintiff in
Frysinger, supra,
the plaintiff dismissed the case a mere thirty minutes before the defendant moved the court to confirm an arbitration award. See
Frysinger v. Leech
(1983),
Recently, in
Harper v. Frantz
(1989),
Therefore, based upon the foregoing, we find that appellant’s Civ.R. 41(A)(1) notice of dismissal filed on April 24, 1990, divested the trial court of authority to subsequently dismiss the action or to issue any further orders in the case. Once apрellant filed the notice of dismissal, no action remained pending before the court. The trial court was without jurisdiction to enter judgment dismissing the action. Inasmuch as the trial court did not have jurisdiction to enter the July 18, 1990 judgment, that judgment must be set aside.
Consеquently, we are without jurisdiction to address the merits of appellant’s assignments of error. See
Hansen v. Hansen
(1985),
Accordingly, based upon the foregoing reasоns, we reverse the trial court’s July 18, 1990 judgment granting appellees’ motions to dismiss. Further, inasmuch as the trial court was without jurisdiction to enter judgment, the remaining assignments of error are, pursuant to App.R. 12(A), overruled.
Judgment reversed.
Notes
. On April 9, 1991, we granted appellant’s motion to strike his seventh assignment of error.