dissenting.
{¶ 40} I respectfully dissent and would affirm the decision of the court of appeals. In my view, the double-dismissal rule set forth in Civ.R. 41(A)(1)(a) does not apply in this case because U.S. Bank presented a different cause of action in its third complaint.
{¶ 41} U.S. Bank filed three actions to foreclose on Gullotta’s mortgage. In its first and second actions, the bank sought to invoke the acceleration clause to recover the full amount of the principal, $164,390.91 at 7.35 percent interest, alleging that Gullotta had defaulted as of November 1, 2003. The bank voluntarily dismissed both actions pursuant to Civ.R. 41(A)(1)(a). In the third action, however, the bank alleged that Gullotta was in default as of April 1, 2005, one payment period after it had dismissed the second foreclosure action. Thus, the bank sought the full amount of principal and interest from that date, not November 1, 2003.
{¶ 42} As the majority recognizes, “The general rule regarding loans repayable in installments is that each default in payment may give rise to a separate cause of action.” Citizens Bank of Logan v. Marzano, 4th Dist. No. 04CA4, 2005-Ohio-163, 2005 WL 103165, ¶ 16. “Further, a recovery for the monthly installments due at the time the action is commenced will not bar recovery for installments that subsequently come due. * * * Thus, a breach of an installment contract by non-payment does not constitute a breach of the entire contract.” Id. However, when the parties have included an acceleration clause in the contract, the failure to pay one installment results in a breach of the entire contract, with the entire balance becoming due. Id.
{¶ 43} In this case, Gullotta’s mortgage has an acceleration clause, providing that upon his failure to make any monthly payment, the bank has a right to demand from him “the full amount of Principal which has not been paid and all the interest that [Gullotta] owe[s] on that amount.” Thus, when he defaulted in November 2003, U.S. Bank accrued a cause of action that would have entitled it to the entire amount of the loan, including interest. The bank, however, failed to *408prosecute this cause of action for this default, twice dismissing its complaints pursuant to Civ.R. 41(A)(1)(a).
{¶ 44} In Olynyk v. Scoles, 114 Ohio St.3d 56, 2007-Ohio-2878, 868 N.E.2d 254, ¶ 10, we explained that “when a plaintiff files two unilateral notices of dismissal under Civ.R. 41(A)(1)(a) regarding the same claim, the second notice of dismissal functions as an adjudication of the merits of that claim * * *. In that situation, the second dismissal is with prejudice under the double-dismissal rule, and res judicata applies if the plaintiff files a third complaint asserting the same cause of action.” (Emphasis added.)
{¶ 45} Accordingly, U.S. Bank’s voluntary dismissal of its second complaint functioned as an adjudication on the merits of the cause of action based on Gullotta’s default. In other words, the bank failed to prove, and can never again prove, that Gullotta was in default as of November 1, 2003.
{¶ 46} U.S. Bank’s third complaint, however, asserted that Gullotta had defaulted on the loan in April 2005, subsequent to the date that the bank voluntarily dismissed its second complaint. The question, therefore, is whether the third complaint presented a different cause of action.
{¶ 47} In concluding that it did not, the majority reasons that “[o]nce Gullotta defaulted, and U.S. Bank invoked the acceleration clause of the note, the contract became indivisible. The obligations to pay each installment merged into one obligation to pay the entire balance on the note.” Moreover, it states, “The [third] complaint still arose from Gullotta’s original default, when the entire principal became due.” Thus, according to the majority, U.S. Bank’s third complaint presented the same claim as the first two complaints because the bank sought the full amount of principal under the acceleration clause, even though Gullotta had already defaulted in November 2003.
{¶ 48} In my view, this conclusion rests on the assumption that “[f]rom the time of Gullotta’s original breach, he has owed the entire amount of the principal.” This “original breach,” which occurred in November 2003, was the subject matter of U.S. Bank’s first two complaints. But pursuant to Olynyk, the voluntary dismissal of the bank’s second complaint for this cause of action functioned as an adjudication that Gullotta had not defaulted in November 2003. In other words, there was no breach of contract at that time.
{¶ 49} For this reason, Gullotta’s mortgage payments were not accelerated in November 2003. As stated in Marzano, “An acceleration clause ‘* * * requires the maker, drawer or other obligor to pay part or all of the balance sooner than the date or dates specified for payment upon the occurrence of some event or circumstance described in the contract * * *[,]’ such as a default by nonpayment.” (Emphasis added.) 2005-Ohio-163, 2005 WL 103165, ¶ 16, quoting Black’s Law Dictionary (7th Ed.1999) 12. Here, the double-dismissal of this *409cause of action functioned as an adjudication on the merits, to the effect that there was no default in November 2003. Consequently, the acceleration clause was not triggered, and Gullotta had no obligation to make any more than his regular monthly payments after U.S. Bank voluntarily dismissed its second complaint in March 2005.
{¶ 50} But Gullotta did not make the next payment after the second dismissal. As a result, the bank filed a third complaint, alleging that Gullotta had defaulted in April 2005. Although the complaint also alleges a breach of contract, the cause of action is based on a breach different from the one in the first two actions. Res judicata and the double-dismissal rule do not apply here because the claim does not “aris[e] out of the transaction or occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226, syllabus.
{¶ 51} The majority also reasons that the causes of action in the three complaints are identical because U.S. Bank sought the same amount of principal in all three actions. But the double-dismissal rule applies only to identical causes of action, not to identical prayers for relief. See Olynyk, 114 Ohio St.3d 56, 2007-Ohio-2878, 868 N.E.2d 254; Civ.R. 41(A)(1)(a). Moreover, a claimant may demand any amount or type of relief for a cause of action, but this demand does not mean the claimant is entitled to that relief. Thus, the fact that U.S. Bank sought the same amount of principal in its third complaint as it did the first and second complaints is irrelevant to the determination of whether the claim is barred by the double-dismissal rule.
{¶ 52} Furthermore, the instant matter is distinguishable from EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240, 2005-Ohio-5799, 841 N.E.2d 855, in which the mortgagee filed three successive complaints, each of which alleged the same date of default. And while the majority cites several other appellate decisions, these cases are inapposite because they provide only other bases for not applying the double-dismissal rule.
{¶ 53} I am persuaded, rather, by the decision of the Supreme Court of Florida in Singleton v. Greymar Assocs. (Fla.2004), 882 So.2d 1004, which addressed virtually the same issue we are confronted with here. In that case, the mortgagee, Greymar Associates, filed a foreclosure action against the mortgagor, Gwendolyn Singleton, based on her alleged failure to make payments from September 1,1999, to February 1, 2000. Greymar also sought acceleration of the debt pursuant to the contract. The trial court, however, dismissed the action with prejudice after Greymar failed to appear at a case-management conference. Greymar then filed a second foreclosure action, but it changed the alleged date of default to April 1, 2000. The trial court rejected Singleton’s defense that *410dismissal of the first action with prejudice barred any successive claim, and the appellate court affirmed.
{¶ 54} On further appeal, the Supreme Court of Florida also affirmed:
{¶ 55} “While it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue. * * * For example, a mortgagor may prevail in a foreclosure action by demonstrating that she was not in default on the payments alleged to be in default, or that the mortgagee had waived reliance on the defaults. In those instances, the mortgagor and mortgagee are simply placed back in the same contractual relationship with the same continuing obligations. Hence, an adjudication denying acceleration and foreclosure under those circumstances should not bar a subsequent action a year later if the mortgagor ignores her obligations on the mortgage and a valid default can be proven.” Id. at 1007.
{¶ 56} The court further stated that “[i]f res judicata prevented a mortgagee from acting on a subsequent default even after an earlier claimed default could not be established, the mortgagor would have no incentive to make future timely payments on the note. The adjudication of the earlier default would essentially insulate her from future foreclosure actions on the note — merely because she prevailed in the first action. Clearly, justice would not be served if the mortgagee was barred from challenging the subsequent default payment solely because he failed to prove the earlier alleged default.” Id. at 1007-1008.
{¶ 57} Other courts have reached similar conclusions. See, e.g., Afolabi v. Atlantic Mtge. & Invest. Corp. (Ind.App.2006), 849 N.E.2d 1170, 1175 (“res judicata does not bar successive foreclosure claims * * *. Here, the subsequent and separate alleged defaults under the note created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action”); Fairbanks Capital Corp. v. Milligan (C.A.3, 2007), 234 Fed.Appx. 21, 24 (a “stipulated dismissal with prejudice * * * cannot bar a subsequent mortgage foreclosure action based on defaults occurring after dismissal of the first action * * *. If we were to so hold, it would encourage a delinquent mortgagor to come to a settlement with a mortgagee on a default in order to later insulate the mortgagor from the consequences of a subsequent default. This is plainly nonsensical”).
{¶ 58} Under today’s holding, the voluntary dismissal of U.S. Bank’s second action in effect results in an adjudication that Gullotta has no further obligation to make payments toward the mortgage and that the bank will not be able to foreclose. While this outcome favors the defaulting homeowner in this case, the impact of the majority opinion will work against Ohio homeowners because *411mortgagees will have little incentive to resolve defaults with distressed mortgagors.
Shapiro & Felty, L.L.P., and John A. Polinko, for appellee U.S. Bank National Association. McKinzie & Associates, Timothy D. McKinzie, and Kerry G. MacKenzie, for appellant.{¶ 59} For these reasons, I respectfully dissent.
Lundberg Stratton, J., concurs in the foregoing opinion.