THE OHIO SUPREME COURT AND CIV.R. 41(A): TILTING AT WINDMILLS
"Tilting at windmills" is a phrase that derives from Don Quixote-which was first published in 1604, under the title The Ingenious Knight of La Mancha. In modern day parlance, it means attacking non-existent enemies. As will be discussed below, the Ohio Supreme Court has, unfortunately, posited the existence on nonexistent dangers as a justification for its continued efforts to eviscerate the provisions of Ohio Rules of Civil Procedure 41(A). Specifically, it has posited the existence of the fictional danger that a plaintiff may repeatedly and unendingly dismiss and refile a case unless it limits the applicability of Civ.R. 41(A).
In the first place, it must be acknowledged that although Civ.R. 41 expressly provides that a plaintiff may file a notice of dismissal without prejudice only once, i.e., that a second notice of dismissal will be with prejudice, this so-called "double dismissal" role applies only to two notices of dismissal:
The double-dismissal rule of Civ.R. 41(A)(1) applies only when both dismissals were notice dismissal under Civ.R. 41(A)(1)(a).
Olynyk v. Scoles, 2007-Ohio-2878, 114 Ohio St. 3d 56 (syllabus). Thus, it is possible for an action to be dismissed without prejudice more than one time. For example, the first dismissal without prejudice could have been by stipulation, the second by a court order, and the third by a notice of dismissal. Importantly, however, for a case to be dismissed without prejudice more than once, the plaintiff must obtain the consent and approval of either the court or the defendant-the plaintiff can only unilaterally dismiss an action without prejudice one time. So, it simply is not possible for a plaintiff to unilaterally dismiss and refile a case an indefinite number of times, as, unfortunately, the Ohio Supreme Court, has erroneously assumed is possible.
For example, in concluding that the savings statute, R.C. 2305.19, may be used only once, the Ohio Supreme Court held that, otherwise, a plaintiff could repeatedly dismiss and refile an action, and, in fact, has actually disciplined an attorney for his "persistence" in arguing that the savings statute could be invoked multiple times, because that would "allow a case to be refiled an indefinite number of times":
Despite consistent rulings to the contrary in the trial and appellate courts, respondent persisted in acting on his unique view that the savings clause of R.C. 2305.19 might be employed in conjunction with Civ.R. 41 to allow a case to be refiled an indefinite number of times.
Columbus Bar Ass'n v. Finneran (1997), 80 Ohio St. 3d 428, 430.
Simply stated, because Civil Rule 41 prevents a plaintiff from being able to unilaterally dismiss and refile an action more than once, it is not necessary to limit the applicability of the savings statutes to prevent "a case [from being] refiled an indefinite number of times." If an action has already been voluntarily dismissed without prejudice by the plaintiff, and is refiled, it can then only be dismissed without prejudice a second time if either the court or the defendant consents. Importantly, in this situation, i.e., when either the court or the defendant has agreed to allow a plaintiff to dismiss an action a second time without prejudice, it is clearly contemplated that the matter may be refiled yet again-otherwise a dismissal without prejudice would have no meaning or effect because the action could not be refiled, i.e., the dismissal without prejudice would have the same effect as a dismissal with prejudice. In that situation, therefore, the savings statute should be available to allow the action to be refiled, as was contemplated given that the second dismissal was without prejudice. The Court, however, instead indicated that it was necessary to limit the availability of the savings statute to prevent a plaintiff from being able to do what he or she does not have the power to do-unilaterally dismiss and refile an action "an indefinite number of times." This result is especially dismaying given that the savings statute is to be liberally construed:
In the first place, it is established in Ohio that Section 2305.19, Revised Code, being a remedial statute, should be given a liberal construction to permit the decision of cases upon their merits rather than upon mere technicalities of procedure. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Bemis, 64 Ohio St. 26, 38, 59 N.E. 745, 748, and Greulich v. Monnin, 142 Ohio St. 113, 116, 50 N.E.2d 310, 312, 149 A.L.R. 477, 480.
Cero Realty Corp. v. Am. Mfrs. Mut. Ins. Co., 171 Ohio St. 82, 85, 167 N.E.2d 774, 776-77 (1960).
More recently, the Ohio Supreme Court has again raised the fictional specter of a plaintiff dismissing and refiling a case in perpetuity to justify a further restriction on the use of Civ.R. 41(A). In Schwering v. TRW Vehicle Safety Sys., Inc., 2012-Ohio-1481, 132 Ohio St. 3d 129, 970 N.E.2d 865, the Court was asked to decide whether a plaintiff could dismiss an action without prejudice by notice after a mistrial was declared. In that case, trial had commenced in state court, but a mistrial was then declared, and, before a second trial could be commenced, the plaintiff dismissed the case and refiled it in federal court. The defendant moved to dismiss the federal case, arguing that the plaintiff could not have dismissed the state court case without prejudice, because the trial had "commenced." The plaintiff argued that once the mistrial was declared the trial that had commenced was a nullity, such that the dismissal was proper.
The Court first noted that other states had held that a dismissal without prejudice was still available after a mistrial, even though a trial had "commenced," because, once a mistrial was declared, the trial was, in effect, a nullity:
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. First Church 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).
Schwering v. TRW Vehicle Safety Sys., Inc., 2012-Ohio-1481, 132 Ohio St. 3d 129, 132-33, 970 N.E.2d 865, 868. The Court, without explanation, declined to follow these well-reasoned decisions, and instead referred to a federal district court case, Cleveland v. Cleveland Elec. Illum. Co., 538 F.Supp. 1328, 1332 (N.D.Ohio 1981), which the Court indicated stood for the broad proposition that, when there has been a mistrial, the evidentiary rulings from the first trial would still apply when the case was retried, such that it would be "incongruous" to hold that the first trial had never "commenced":
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).
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 Civ.R. 41(A).
Schwering v. TRW Vehicle Safety Sys., Inc., 2012-Ohio-1481, 132 Ohio St. 3d 129, 133, 970 N.E.2d 865, 868-69. Unfortunately, the Court, in addition to rejecting the holdings of other courts that were directly on point, failed to note that the Sixth Circuit, in commenting upon the district court's holding in Cleveland, held that, when a matter is retried following a mistrial, a trial court may, but is not required to, adopt rulings made in the context of the first trial:
Finally, we note that the law-of-the-case doctrine can be applied to rulings made in a case that ends in a mistrial. Cleveland v. Cleveland Elec. Illuminating Co., 538 F.Supp. 1328, 1330 (N.D. Ohio 1981); cf. Williams, 728 F.2d at 1406. Otherwise, a court would be required to rule de novo on every issue previously decided in a prior proceeding that ends in a mistrial. Cleveland Elec., 538 F.Supp. at 1331; Remco, Inc. v. Faber Bros., 34 F.R.D. 259 (N.D.Ill.1964). This would be inefficient, particularly when the previous trial had progressed considerably. In such a situation the law-of-the-case doctrine would prove useful. A court may recognize and enforce prior rulings based on this doctrine, but also retains the power to reconsider previously decided issues as they arise in the context of a new trial.
Based on this analysis, we hold that the District Court did not abuse its discretion when it failed to follow a prior ruling of another court and admitted evidence relating to money-laundering. In admitting this evidence, the District Court did not disregard cavalierly the previous ruling made in the earlier trial but examined the earlier ruling and conducted its own thorough analysis in light of the relevant evidentiary rules. The District Court acted appropriately under these circumstances.
United States v. Todd, 920 F.2d 399, 404 (6th Cir. 1990). Similarly, in the context of a dismissed case, although the court in the refiled case is not bound by the rulings in the dismissed case, there is no reason why the court in the refiled case may not take into consideration the rulings made in the first case, and, unless there is new evidence, or the law has changed, make the same rulings in the refiled case.
It should also be noted that the Ohio Supreme Court failed to appreciate another limitation on the holding in Cleveland. As noted by the Supreme Court of Virginia, the federal district court in Cleveland did not hold that all of the prior ruling are binding, as implied by the Ohio Supreme Court's description of that case-it only held that pre-trial rulings dismissing various discrete claims within complex litigation remained valid even after a mistrial was declared as to the remaining claims, not that rulings made with regard to the trial of the remaining claims are binding:
In City of Cleveland v. Cleveland Electric Illuminating Co., 538 F.Supp. 1328 (N.D.Ohio 1981), the trial court did observe that "a mistrial does not affect or invalidate any of the pre-trial proceedings in the case." Id. at 1330. However, that statement is made in an opinion addressing a motion to have the pre-trial rulings from a mistrial adopted in the retrial. Moreover, the rulings at issue were those in orders disposing of discrete claims within a complex litigation, not rulings on issues of law related to matters that would arise during the retrial. In commenting on the rationale of the Cleveland Electric decision, the federal Court of Appeals for the Sixth Circuit has opined that the trial court is not bound in a subsequent trial by the rulings of a prior mistrial, so much as it has the discretion to "recognize and enforce prior rulings ... but also retains the power to reconsider previously decided issues as they arise in the context of a new trial." United States v. Todd, 920 F.2d 399, 404 (6th Cir.1990).
Elliott v. Com., 267 Va. 396, 427-28, 593 S.E.2d 270, 289-90 (2004).
In sum, then, the Ohio Supreme not only failed, without explanation, to follow the holding of other courts that were directly on point, it based its decision upon a misreading of a federal district court case that did not even involve the specific legal principle at issue, and then justified its decision as necessary to prevent a plaintiff from dismissing and refiling an action indefinitely-something that a plaintiff has now power to do.
The Court also intimated that a contrary holding would have somehow prejudiced the defendants in Schwering. Thus, the Court failed to appreciate that, had the state court case in Schwering not been dismissed following the mistrial, the defendants would have been subjected to a second trial in state court. Thus, had the Court allowed a dismissal following a mistrial to be without prejudice, no prejudice would have resulted to the defendants-they would simply have conducted the new trial in federal court instead of state court.
The Court did, ironically, refer to the provision in the Civil Rules that they are to be construed liberally so that matters are not decided upon technicalities:
The Rules of Civil Procedure are to be "construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditious administration of justice," Civ.R. 1(B), and liberal construction rather than technical interpretation is to be emphasized. 1970 Staff Notes, Civ.R. 1(B).
Schwering v. TRW Vehicle Safety Sys., Inc., 2012-Ohio-1481, 132 Ohio St. 3d 129, 134, 970 N.E.2d 865, 869. See also Peterson v. Teodosio, 34 Ohio St. 2d 161, 175, 297 N.E.2d 113, 122 (1973) ("The spirit of the Civil Rules is the resolution of cases upon their merits, not upon pleading deficiencies"). The Court, however, then indicated that this provision required a finding that the plaintiff may not dismiss without prejudice following a mistrial, because, otherwise, the defendant would be prejudiced by having the action against it dismissed and refiled indefinitely:
Adherence to these rules results in the orderly administration of justice by preventing plaintiffs from dismissing multiple times without prejudice.
We have described the combination of Civ.R. 41(A)(1) and (A)(2) as a mechanism that prevents the possibility of plaintiffs' abusing the system by trying and retrying their cases indefinitely. Chadwick, 69 Ohio St.2d at 229, 431 N.E.2d 660. If a plaintiff can unilaterally dismiss an action and start over after trial commences, other parties will be prejudiced.
Schwering v. TRW Vehicle Safety Sys., Inc., 2012-Ohio-1481, 132 Ohio St. 3d 129, 134, 970 N.E.2d 865, 869. But, as demonstrated above, a plaintiff may not dismiss and refile indefinitely.
The Court also indicated that its decision was necessary to prevent a plaintiff from dismissing a case in the middle of an ongoing trial in the face of adverse rulings, and then refiling, rather than having to complete the trial and then appeal:
This court has explained that Civ.R. 41(A)(1)(a)'s "commencement of trial" language was adopted to prevent a situation in which parties could try and retry their causes indefinitely until the most favorable circumstances for submission were finally achieved. Frysinger v. Leech, 32 Ohio St.3d 38, 42, 512 N.E.2d 337 (1987), quoting Beckner v. Stover, 18 Ohio St.2d 36, 40, 247 N.E.2d 300 (1969). In Beckner, we expressly cautioned against a rule whereby the plaintiffs "could substitute a voluntary dismissal without prejudice for an appeal from claimed errors occurring during a trial." Id.
Schwering v. TRW Vehicle Safety Sys., Inc., 2012-Ohio-1481, 132 Ohio St. 3d 129, 133, 970 N.E.2d 865, 869. Once again, the Court posits a non-existent danger. Ruling that a plaintiff may dismiss an action without prejudice after a trial is over, i.e., after a mistrial has been declared, is not the same as allowing a plaintiff to dismiss while a trial is being conducted.
It is, to say the least, disheartening to have Ohio's Supreme Court issue rulings taking away the rights of Ohio's citizens to seek redress from those who have injured them based upon fictional dangers. But, the Court has engaged in fiction in other contexts as well. For example, in ruling that the affidavit of an expert witness that is offered to defeat a motion for summary judgment may be disregarded if it conflicts with his or her deposition testimony, rather than having the jury resolve this credibility issue, the Court posited the existence of an expert who testimony would not be excluded on that basis:
The rationale supporting the rule set forth in Byrd is germane to an affidavit of a retained, nonparty expert that contradicts former deposition testimony of that expert without sufficient explanation. Pettiford's reasoning overlooks both the critical distinctions between a lay witness and a retained expert witness and the similarities between a party and a retained expert witness.
A nonparty lay witness offers testimony only on facts and receives no compensation for his or her testimony. Because the issue is not before us today, we are not deciding whether the Byrd analysis can be applied to a contradictory affidavit of a nonparty lay witness. Similarly, we are not deciding whether the Byrd analysis can be applied to a nonparty expert witness who is not retained and compensated by a party or his or her attorney. An example of this type of nonparty expert would be the plaintiff's treating physician in a medical negligence case who has not been engaged by any party and is not being compensated for his or her testimony.
Pettiford v. Aggarwal, 2010-Ohio-3237, 126 Ohio St. 3d 413, 418, 934 N.E.2d 913, 917-18. So, the Court, in holding that the plaintiff's expert witness' affidavit may be disregarded if it conflicts with his or her deposition testimony, posited the existence of the "treating physician who...is not being compensated for his or her testimony...." There is, of course, no such animal in the real world, just as, in the context of Civ.R. 41 and R..C. 2305.19, there is no possibility that a plaintiff may unilaterally dismiss and refile an action indefinitely.
Finally, it should be remembered that Chief Justice O'Connor has expressed the desire to amend Civ.R. 41 so that it is the same as the federal rule, which only allows a plaintiff to dismiss and action by notice prior the filing of an answer, or a motion for summary judgment, whichever occurs first:
As illustrated by the circumstances of this case, a plaintiff who waits until the 11th hour to exercise her one opportunity to file a notice of dismissal without prejudice can cause great inconvenience and expense for the opposing party when considerable trial preparations have already occurred and trial is imminent. The court's docket is also negatively affected by the exercise of a notice dismissal immediately prior to trial. For these reasons, it may be prudent for Ohio to consider whether it would be appropriate to amend Civ.R. 41(A)(1)(a) to more closely follow the federal approach in this regard.
Olynyk v. Scoles, 2007-Ohio-2878, 114 Ohio St. 3d 56, 64, 868 N.E.2d 254, 260. Given the tenor of the Court's decisions vis-a-vis Civ.R. 41, however, it may not be necessary to amend the Rule, because the Court will have effectively emasculated it through its decisions.