[Cite as Savoy v. Kramer, 2013-Ohio-3607.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
ALAN SAVOY C.A. No. 26668
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JEANETTE KRAMER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CV 2012 07 3862
DECISION AND JOURNAL ENTRY
Dated: August 21, 2013
HENSAL, Judge.
{¶1} Alan Savoy appeals a judgment of the Summit County common pleas court that
dismissed his action against Jeanette Kramer. For the following reasons, we vacate the trial
court’s judgment and remand for further consideration of Ms. Kramer’s motion to dismiss.
I.
{¶2} In 2010, Mr. Savoy filed a complaint against Ms. Kramer alleging that she was
liable for the injuries he suffered in a traffic collision on October 11, 2008. On June 17, 2011,
Mr. Savoy filed a “Motion to Dismiss,” in which he asked “the Court, under Civil Rule
41(A)(1)(a) to grant a voluntary dismissal, without prejudice, in the above case.” On June 30,
2011, the trial court entered an order noting that Mr. Savoy had asked it “to voluntarily dismiss
this case, without prejudice, pursuant to Civil Rule 41(A)(1)(a).” The order provided that,
“[w]hile it is unnecessary for * * * [Mr. Savoy] to seek this Court’s permission, the Court
recognizes that this case has been DISMISSED, without prejudice.”
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{¶3} On July 2, 2012, Mr. Savoy re-filed his action pursuant to the saving statute,
Revised Code Section 2305.19(A). Ms. Kramer moved to dismiss it, however, arguing that he
had not re-filed his complaint in time. She asserted that, because Mr. Savoy did not need the
trial court’s approval to dismiss his first action, the dismissal of that action occurred on the date
that Mr. Savoy filed his motion to dismiss. She argued that the trial court’s subsequent order did
not dismiss the action, but was merely “an internal ministerial act of housekeeping.”
{¶4} On September 11, 2012, Mr. Savoy filed a memorandum in opposition to the
motion to dismiss. Six days later, the court granted Ms. Kramer’s motion. In its entry, the court
wrote that “[t]o date, no briefs or other motions have been filed in response to [Ms. Kramer’s
motion to dismiss].” Upon review of the motion, the court agreed that Mr. Savoy’s motion to
dismiss in the first action operated as a dismissal of that action. It concluded that his re-filed
complaint, therefore, was not timely under the savings statute, and dismissed the action. Mr.
Savoy has appealed, assigning as error that the trial court incorrectly dismissed his case.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT INCORRECTLY DISMISSED THIS CASE AS UNTIMELY
UNDER R.C. 2305.19 BASED ON ITS INCORRECT CONSTRUCTION OF THE
APPELLANT’S MOTION TO DISMISS IN THE ORIGINALLY FILED ACTION.
{¶5} Mr. Savoy argues that the trial court incorrectly ruled on Ms. Kramer’s motion to
dismiss without considering his memorandum in opposition. In his memorandum, Mr. Savoy
argued that the pro se “motion to dismiss” that he filed in his first action was not the same thing
as a “notice of dismissal” under Civil Rule 41(A)(1)(a). He also argued that, even though he
cited Civil Rule 41(A)(1)(a) in his motion to dismiss, the motion was, in substance, a motion to
dismiss under Rule 41(A)(2). Because a dismissal under Rule 41(A)(2) requires a court order, he
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argues that his first action was not dismissed until the trial court entered its order on June 30,
2011.
{¶6} We note that, in its journal entry, the trial court wrote that Mr. Savoy had not filed
a response to Ms. Kramer’s motion to dismiss even though he had filed a response six days
earlier. The court also did not address either of the issues that Mr. Savoy raised in his
memorandum. This Court will generally not determine issues in the first instance. See Rubber
City Arches Graham, L.L.C. v. Joe Sharma Props., L.L.C., 9th Dist. Summit No. 26557, 2013-
Ohio-1773, ¶ 12; FirstMerit Bank, N.A. v. Inks, 9th Dist. Summit Nos. 25980, 26182, 2012-
Ohio-5155, ¶ 20. We, therefore, conclude that this case must be remanded so that the trial court
can consider them.
{¶7} Ms. Kramer argues that the trial court did not have to consider Mr. Savoy’s
memorandum in opposition because he did not file it in the time required under Summit County
court of common pleas Local Rule 7.14(A). That issue, however, is also one that the trial court
should determine in the first instance. Mr. Savoy’s assignment of error is sustained.
III.
{¶8} The trial court failed to consider the issues raised by Mr. Savoy in his opposition
memorandum before ruling on Ms. Kramer’s motion to dismiss. The judgment of the Summit
County common pleas court is vacated, and this matter is remanded so that the court can
undertake further consideration of Ms. Kramer’s motion to dismiss.
Judgment vacated,
and cause remanded.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
MOORE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
PETER D. TRASKA, Attorney at Law, for Appellant.
CORTNEY R. OREN MORGAN, Attorney at Law, for Appellee.