[Cite as State Bank & Trust Co. v. Smith, 2019-Ohio-5273.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WILLIAMS COUNTY
The State Bank and Trust Company Court of Appeals No. WM-19-003
Appellant Trial Court No. CVI1900103
v.
Carly L. Smith DECISION AND JUDGMENT
Appellee Decided: December 20, 2019
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Kevin J. Whitlock and Kayla A. Baker, for appellant.
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OSOWIK, J.
{¶ 1} This is an appeal from a March 25, 2019 judgment of the Bryan Municipal
Court dismissing a small claims complaint with prejudice.
{¶ 2} In this case, on January 22, 2019, appellant, The State Bank and Trust
Company, filed a small claim petition against the appellee, Carly L. Smith, in the Bryan
Municipal Court, Small Claims Division.
{¶ 3} The petition sought the sum of $1,078.38 from appellee upon a delinquent
account in addition to fees, court costs and costs of the action.
{¶ 4} On January 25, 2019, the clerk mailed a summons to the parties to appear for
a hearing on March 25, 2019.
{¶ 5} When the case was called, the following occurred:
THE COURT: Are you ready to proceed?
PLAINTIFF’S ATTORNEY: Your Honor, I do not have a client
present. So if this Court would allow a continuance, or we can dismiss and
re-file, whichever you prefer.
THE COURT: The case will be dismissed. They know to be here.
Case is dismissed.
PLAINTIFF’S ATTORNEY: Without prejudice, Your Honor?
THE COURT: Well, from - - well, no. They’re here. So, yeah, it’s
with prejudice. We’re done. If they can’t be here, then we’re done.
{¶ 6} Procedurally, appellant filed a motion for reconsideration which was denied
by the court.
{¶ 7} Appellant presents a single assignment of error:
I. THE MUNICIPAL COURT ABUSED ITS DISCRETION IN
REFUSING TO GRANT PLAINTIFF’S MOTION FOR DISMISSAL
PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 41(A)(2) AND
DISMISSING PLAINTIFF’S CLAIM WITH PREJUDICE.
2.
{¶ 8} Generally, the trial court’s decision to grant or deny a Civ.R. 41(A)(2)
dismissal will not be disturbed on appeal absent a finding of abuse of discretion.
Edwards v. Reser, 6th Dist. Ottawa No. OT-07-022, 2007-Ohio-6520, ¶ 39. An abuse of
discretion connotes more than a mere error of law or judgment, instead requiring a
finding that the trial court’s decision was unreasonable, arbitrary, or unconscionable.
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶ 9} Civ.R. 41(A)(2) provides:
(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.
{¶ 10} In Douthitt v. Garrison, 3 Ohio App.3d 254, 255, 444 N.E.2d 1068 (9th
Dist.1981), the Ninth District Court of Appeals adopted the federal courts’ construction
of Fed.R.Civ.P. 41(a)(2), which emphasizes the traditional rule that voluntary dismissals
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should be allowed unless the defendant will be prejudiced “‘other than [by] the mere
prospect of a second lawsuit.’” Douthitt at 256, quoting Holiday Queen Land
Corporation v. Baker, 489 F.2d 1031, 1032 (5th Cir.1974).
{¶ 11} The Third District has since also adopted the federal courts’ interpretation
of the rule. Capital One Bank v. Woten, 169 Ohio App.3d 13, 2006-Ohio-4848, 861
N.E.2d 859, ¶ 8 (3d Dist.). Likewise, we shall also adopt this interpretation of Civ.R
41(A)(2).
{¶ 12} Like the facts in Douthitt, the record before us contains no evidence that
would show any prejudice to the defendant other than the prospect of a second lawsuit.
However, the plaintiff will suffer great prejudice in that its causes of action will be
forever barred.
{¶ 13} And similar to the court’s findings in Woten, in this instance, the trial court
made no further inquiry regarding any other prejudice or hardship that appellee might
have incurred if the motion were granted. Therefore, we find that the trial court abused
its discretion by unreasonably and arbitrarily denying The State Bank and Trust
Company’s oral motion to voluntarily dismiss without prejudice under Civ.R. 41(A)(2).
Appellant’s sole assignment of error is found well-taken.
{¶ 14} The judgment of the Bryan Municipal Court is reversed and remanded to
the trial court for proceedings consistent with this decision. The costs of this appeal are
assessed to appellee pursuant to App.R. 24.
4.
Judgment reversed
and remanded.
The State Bank and Trust Co.
v. Smith
C.A. No. WM-19-003
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
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version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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