APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2012 07 3862.
PETER D. TRASKA, Attorney at Law, for Appellant.
CORTNEY R. OREN MORGAN, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL, J.
(¶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.
(¶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."
(¶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.
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 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, LLC. v. Joe Sharma Props., LLC, 9th Dist. Summit No. 26557, 2013-Ohio-1773, ¶ 12; FirstMerit Bank, N.A. v. Inks, 9th Dist. Summit Nos. 25980, ...