SCHWERING ET AL. v. TRW VEHICLE SAFETY SYSTEMS, INC., ET AL.
No. 2011-0438
Supreme Court of Ohio
Submitted November 15, 2011—Decided April 4, 2012.
132 Ohio St.3d 129, 2012-Ohio-1481
LANZINGER, J.
LANZINGER, J.
{¶ 1} In this case, we decide whether a plaintiff is permitted to unilaterally dismiss a lawsuit without prejudice pursuant to
{¶ 2} Pursuant to
{¶ 3} We answer the certified question in the negative.
I. Complaint Filed
{¶ 4} Kenneth Schwering was a passenger in a 2001 Ford Explorer Sport driven by his wife, Beverly Schwering. On December 28, 2002, the couple was involved in a traffic accident and the vehicle rolled over. Schwering and his wife were wearing seatbelts at the time of the accident, but she was killed, and he sustained injuries.
{¶ 5} On October 17, 2003, Schwering filed a complaint on his own behalf and as personal representative of his wife‘s estate in the Hamilton County Court of Common Pleas against Ford Motor Company and TRW Safety Systems, Inc., asserting products-liability and negligence claims. The complaint alleged that the design of the seatbelt system in the Explorer was unreasonably dangerous and that the system was defective, creating an unsafe condition that caused Schwering‘s wife‘s death and his own injuries.
{¶ 6} Over five years later, the case proceeded to trial. A jury was sworn in on May 28, 2009. Schwering called Steven Meyer, during his case-in-chief, as an expert witness on restraint systems. Meyer testified that he had tested an alternative design of the restraint system that would have prevented Beverly Schwering‘s death.
{¶ 7} Ford objected and moved to strike this testimony, arguing that Schwering had not disclosed that Meyer had tested an alternative design on the same model of car involved in the accident. Ford also argued that Meyer had deceived it and the court during earlier depositions by denying any recollection of having performed tests on a vehicle like the Schwerings’ Explorer. The trial judge initially granted Ford‘s motion to strike and instructed the jury to disregard Meyer‘s testimony. Ford moved for a mistrial, contending surprise, undue prejudice, and discovery violations of
{¶ 8} In September 2010, Schwering filed a lawsuit in the United States District Court for the Southern District of Ohio, asserting the same products-liability and negligence claims against TRW and Ford on behalf of himself and his wife‘s estate.
{¶ 9} Ford and TRW filed motions to dismiss the federal action, arguing that Schwering‘s voluntary dismissal in the Hamilton County action did not occur “before the commencement of trial” as required by
{¶ 10} The federal court found no state law on whether the declaration of a mistrial reinstated the right to voluntarily dismiss claims without prejudice. As a result, the district court certified its question to this court, asking whether a
II. Legal Analysis
A. Ohio and Federal Rules Differ
{¶ 11} Since the adoption of the Ohio Rules of Civil Procedure, the dismissal of actions has been governed by
{¶ 12}
(A) Voluntary dismissal: effect thereof
(1) By plaintiff; by stipulation. Subject to the provisions of
Civ.R. 23(E) ,Civ.R. 23.1 , andCiv.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:(a) filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by that defendant;
(b) filing a stipulation of dismissal signed by all parties who have appeared in the action.
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.
(2) 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 order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon that defendant of the plaintiff‘s motion to dismiss, a claim shall not be dismissed against the defendant‘s objection unless the counterclaim can remain pending for independent adjudication by the court.
Unless otherwise specified in the order, a dismissal under division (A)(2) of this rule is without prejudice.
{¶ 13} In contrast,
{¶ 14} But Ford and TRW assert that because trial had already commenced in state court, Schwering could not have voluntarily dismissed his claims without prejudice without a court order pursuant to
{¶ 15} Schwering, on the other hand, contends that the state court‘s declaration of a mistrial rendered the trial a nullity, thereby reviving his right to voluntarily dismiss his claims without prejudice under
{¶ 16} Although we have not yet resolved this question, several Ohio courts of appeals have addressed the definition of “commencement of trial” and have held that “a civil trial commences when the jury is empaneled and sworn, or, in a bench trial, at opening statements.” Frazee v. Ellis Bros. Inc., 113 Ohio App.3d 828, 831, 682 N.E.2d 676 (5th Dist.1996). Accord Douthitt v. Garrison, 3 Ohio App.3d 254, 256, 444 N.E.2d 1068 (9th Dist.1981); Great Seneca Fin. Corp. v. Emler, 5th Dist. No. 05CA000030, 2005-Ohio-6465, 2005 WL 3307269, ¶ 30, quoting Frazee. We agree and now hold that a civil trial commences when the jury is empaneled.
{¶ 17} Courts from other jurisdictions construing similar rules or statutes have examined the effect of a mistrial when a plaintiff attempts to voluntarily dismiss an action. The Minnesota Supreme Court has held that a “dismissal after a mistrial is ‘before the trial begins,’ because a mistrial is in legal effect no trial at all.” Bolstad v. Paul Bunyan Oil Co., 215 Minn. 166, 168, 9 N.W.2d 346 (1943). Similarly, after a trial court granted a mistrial and the plaintiff moved for voluntary dismissal, an Illinois appellate court interpreting that state‘s statute determined that if “a trial is set and commenced but, for some reason is cancelled, the right to absolute dismissal is still available.” Kilpatrick v. FirstChurch of the Nazarene, 177 Ill.App.3d 83, 87, 126 Ill.Dec. 508, 531 N.E.2d 1135 (1988). See also Phelps v. Winona & St. Peter Ry. Co., 37 Minn. 485, 489, 35 N.W. 273 (1887) (when a new trial has been granted and the verdict set aside, a plaintiff has the right to dismiss his action as if no trial had occurred).
{¶ 18} Ford argues, however, that evidentiary rulings established in a trial in which a mistrial was declared are routinely applied by Ohio courts in a second trial. See State v. Harris, 6th Dist. No. L-83-223, 1984 WL 7878 (May 11, 1984) (“When a mistrial is granted the defendant is only entitled to a new trial. The mistrial had no effect on the prior motion to suppress. The appellant was not entitled to refile a motion to suppress“); State v. Anderson, 7th Dist. No. 03MA252, 2006-Ohio-4618, 2006 WL 2573785, ¶ 46 (after a mistrial was granted because of the violation of a ruling on a motion in limine, a defendant should have been allowed to rely on a consistent evidentiary ruling on that same issue at the second trial); Cleveland v. Cleveland Elec. Illum. Co., 538 F.Supp. 1328, 1332 (N.D.Ohio 1981) (after a mistrial, a trial court determined that based on the law-of-the-case doctrine, several dispositive rulings of the court issued prior to and during the first trial governed in the subsequent retrial).
{¶ 19} We agree that it would be incongruous to recognize evidentiary rulings established during a first trial, while at the same time holding that the first trial never “commenced” for purposes of
B. Policy Reasons Behind the Rule.
{¶ 20} This court has explained that
C. Express Language of Ohio‘s Rule.
{¶ 21}
{¶ 22} We have described the combination of
III. Conclusion
{¶ 23} We therefore answer the certified question with a no. A plaintiff may not voluntarily dismiss a claim without prejudice pursuant to
So answered.
O‘CONNOR, C.J., and LUNDBERG STRATTON, O‘DONNELL, CUPP, and MCGEE BROWN, JJ., concur.
PFEIFER, J., concurs in judgment only.
Barron, Peck, Bennie & Schlemmer, Arthur H. Schlemmer, Michael S. Barron, and Charles L. Hinegardner; Denney & Barrett, P.C., Richard L. Denney, and Lydia JoAnn Barrett; and Eynon Law Group, P.C., Richard S. Eynon, and David M. Brinley, for respondents.
Thompson Hine, L.L.P., Gary M. Glass, and Elizabeth B. Wright; and Frost Brown Todd, L.L.C., and Kevin C. Schiferl, for petitioner Ford Motor Company.
Squire, Sanders & Dempsey, L.L.P., Damond R. Mace, and Aaron T. Brogdon, for petitioner TRW Vehicle Safety Systems, Inc.