stating "[t]he notice of voluntary dismissal is self-executing and completely terminates the possibility of further action on the merits of the case upon its mere filing, without the necessity of court intervention"
How later courts described this case
- stating "[t]he notice of voluntary dismissal is self-executing and completely terminates the possibility of further action on the merits of the case upon its mere filing, without the necessity of court intervention"
Written by the judges who cited it.
The opinion
[Cite as State ex rel. Engelhart v. Russo, 131 Ohio St.3d 137, 2012-Ohio-47.]
THE STATE EX REL. ENGELHART, APPELLANT, v. RUSSO, JUDGE, APPELLEE.
[Cite as State ex rel. Engelhart v. Russo, 131 Ohio St.3d 137, 2012-Ohio-47.]
Mandamus—Prohibition—Voluntary dismissal—Civ.R. 41(A)(1)—Motion for
voluntary dismissal under Civ.R. 41(A)(1) is effective immediately upon
filing—Civ.R. 58(A)—Order granting summary judgment is not effective
until entered by clerk upon journal—Court loses jurisdiction upon filing of
voluntary dismissal—Judgment denying writs of prohibition and
mandamus to prevent court from proceeding after dismissal and to compel
court to vacate postdismissal orders reversed.
(No. 2011-0903—Submitted November 15, 2011—Decided January 11, 2012.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 96387, 2011-Ohio-2410.
__________________
Per Curiam.
{¶ 1} This is an appeal from a judgment denying writs of prohibition and
mandamus against appellee, Cuyahoga County Court of Common Pleas Judge
Nancy Margaret Russo. Appellant, Renee Engelhart, seeks a writ of prohibition
to prevent Judge Russo from further proceeding in an underlying civil case.
Engelhart also seeks a writ of mandamus to compel the judge to vacate her order
striking Engelhart’s notice of voluntary dismissal without prejudice and all other
orders issued after the filing of the notice and to reinstate the notice of dismissal.
Because Engelhart established her entitlement to part of the requested relief, we
reverse the court of appeals’ judgment in part and affirm it in part.
SUPREME COURT OF OHIO
Facts
State ex rel. Engelhart v. Brecksville-Broadview Hts.
City School Dist. Bd. of Edn., Cuyahoga C.P. No. CV-10-719533
{¶ 2} Engelhart filed an action in mandamus in the Cuyahoga County
Court of Common Pleas that claimed that the respondents, Brecksville-Broadview
Heights City School District Board of Education and certain district officials, had
committed violations of the Open Meetings Act and the Public Records Act. The
respondents in that case filed a motion for summary judgment, and Engelhart
submitted a memorandum in opposition.
{¶ 3} At 11:07 a.m. on January 12, 2011, a person using the password
assigned to Judge Russo’s staff attorney prepared a proposed journal entry
granting the school district’s motion for summary judgment. Judge Russo signed
the entry, and at 2:25 p.m. on January 12, transmitted the entry electronically to
the Clerk of Court for Cuyahoga County, where it entered a queue of electronic
documents that had been transmitted for filing. At the same time, Judge Russo
also updated the status of the pending motions in the case in an on-line docket,
accessible to the attorneys in the case but not to the public, to reflect that she had
granted the respondents’ motion for summary judgment.
{¶ 4} When Engelhart’s counsel in the underlying case, Deborah
Carothers, became aware that Judge Russo would enter judgment in favor of the
respondents, she filed a notice of dismissal pursuant to Civ.R. 41(A)(1),
voluntarily dismissing the case without prejudice, at 3:48 p.m. on January 12,
2011.
{¶ 5} Minutes later, at 4:05 p.m., a deputy clerk responsible for
processing the queue of electronically transmitted documents clicked on Judge
Russo’s journal entry granting summary judgment in favor of the respondents,
which had been transmitted to the clerk’s office at 2:25 p.m. earlier that day. This
was in accordance with the clerk’s procedure for processing electronically
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January Term, 2012
transmitted documents sent by a judge or magistrate to the clerk: (1) the deputy
clerk processes each document by clicking on it to enter the document on the
court’s journal, (2) at that instant, a stamp reflecting the precise date and time is
recorded on the document, and (3) then or shortly thereafter, a new entry will
appear on the electronic docket of proceedings that memorializes the document.
The certified copy of Judge Russo’s January 12, 2011 journal entry granting
summary judgment in the school district’s favor bears a clerk’s office stamp that
it was “received for filing” on that date at “16:05:42,” i.e., 4:05 p.m. The court’s
docket lists Engelhart’s notice of dismissal as having been entered on the docket
before Judge Russo’s entry granting summary judgment.
{¶ 6} On January 13, 2011, the respondents filed a “motion to strike—
motion to deem moot and untimely [Engelhart’s] notice of dismissal, and motion
to show cause.” On January 25, Judge Russo granted respondents’ motion, struck
Engelhart’s notice of dismissal, and held that the judge’s January 12 summary
judgment was the final judgment on the merits in the case. Judge Russo ordered
Engelhart and her attorney, Carothers, to appear and show cause why each should
not be held in contempt for filing their notice of dismissal “after the notice from
the court of the ruling on the motion for summary judgment and for her
representations to the court that she could not file her trial brief on time due to
weather and travel issues.”
{¶ 7} Judge Russo specified that the summary-judgment order was
received for filing by the clerk’s office before Engelhart filed her notice of
dismissal:
{¶ 8} “The court also notes for purposes of the record that the entry of
[summary judgment] in favor of the respondents was created at 11:07 am on
January 12; the judge assigned to the case signed that entry at 2:25 pm, which is
the actual time of filing by the court of its order; the relator’s notice of dismissal
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was time-stamped on 1/12/11 at 3:48 pm, after the court had updated the pending
motion docket and signed the JE and after the clerk received it for filing.”
{¶ 9} On January 31, 2011, following a hearing, Judge Russo granted the
respondents’ motion for sanctions against attorney Carothers in the sum of
$1,200. Judge Russo determined that Carothers “was aware of the court[’]s ruling
in favor of respondents before she filed the now stricken [notice of dismissal] and
that she did so in [an] attempt to prejudice the respondents and perpetrate a fraud
upon the court.”
Prohibition and Mandamus Case
{¶ 10} A week later, on February 7, 2011, Engelhart filed a complaint in
the court of appeals. In her complaint, Engelhart requested a writ of prohibition
to prevent Judge Russo from exercising jurisdiction and further proceeding in the
underlying case. Engelhart also sought a writ of mandamus to compel Judge
Russo to (1) vacate her January 25, 2011 order striking Engelhart’s notice of
dismissal, (2) vacate all other orders issued after the filing of the notice of
dismissal, and (3) reinstate the January 12, 2011 notice of dismissal. The parties
filed motions for summary judgment.
{¶ 11} In May 2011, the court of appeals denied the writs. The court of
appeals held that “the order granting summary judgment was journalized prior to
the filing of the notice of voluntary dismissal.”
{¶ 12} This cause is now before the court upon Engelhart’s appeal as of
right.
Legal Analysis
Prohibition and Mandamus:
Notice of Voluntary Dismissal
{¶ 13} In her appeal as of right, Engelhart asserts that the court of appeals
erred in denying writs of prohibition and mandamus to prevent Judge Russo from
proceeding in the underlying case, to compel the judge to vacate her order striking
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January Term, 2012
Engelhart’s notice of dismissal and all of her orders thereafter in the case, and to
reinstate the notice of dismissal.
{¶ 14} “If a lower court patently and unambiguously lacks jurisdiction to
proceed in a cause, prohibition and mandamus will issue to prevent any future
unauthorized exercise of jurisdiction and to correct the results of prior
jurisdictionally unauthorized actions.” State ex rel. Mayer v. Henson, 97 Ohio
St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12. “[I]n general, when a trial
court unconditionally dismisses a case or a case has been voluntarily dismissed
under Civ.R. 41(A)(1), the trial court patently and unambiguously lacks
jurisdiction to proceed, and a writ * * * will issue to prevent the exercise of
jurisdiction.” State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605,
771 N.E.2d 853, ¶ 22.
{¶ 15} Civ.R. 41(A)(1)(a) provides that, subject to certain provisions that
are inapplicable here, “a plaintiff, without order of court, may dismiss all claims
asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at
any time before the commencement of trial unless a counterclaim which cannot
remain pending for independent adjudication by the court has been served by that
defendant.”
{¶ 16} As we recently held, “[t]he plain import of Civ.R. 41(A)(1) is that
once a plaintiff voluntarily dismisses all claims against a defendant, the court is
divested of jurisdiction over those claims.” State ex rel. Fifth Third Mtge. Co. v.
Russo, 129 Ohio St.3d 250, 2011-Ohio-3177, 951 N.E.2d 414, ¶ 17.
Notice of Dismissal Filed Before
Journalization of Summary Judgment
{¶ 17} The court of appeals determined that because Engelhart had filed
her notice of dismissal of the underlying case after Judge Russo’s entry granting
summary judgment in favor of the respondents had been journalized, the notice
was ineffective and did not divest the judge of jurisdiction to vacate the notice of
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SUPREME COURT OF OHIO
dismissal and to conduct further proceedings in the case. It is true that a notice of
voluntary dismissal filed after the trial court enters summary judgment is of no
force and effect and is a nullity. Blair v. Boye-Doe, 157 Ohio App.3d 17, 2004-
Ohio-1876, 808 N.E.2d 906, ¶ 3, fn. 2; Sutton v. Kim, Trumbull App. No. 2004-T-
0061, 2005-Ohio-5866, ¶ 16.
{¶ 18} Nevertheless, it is equally true that if a notice of voluntary
dismissal is filed before the journalization of a summary judgment, the dismissal
is effective. Witt v. Lamson, Cuyahoga App. No. 87349, 2006-Ohio-3963, ¶ 7-11;
Howard v. SunStar Acceptance Corp. (May 8, 2001), Franklin App. No. 00AP-70,
2001 WL 481936, *4.
{¶ 19} The court of appeals held that journalization was complete when
Judge Russo transmitted the signed entry to the clerk of court at 2:25 p.m. on
January 12, 2011. In so holding, the court of appeals relied on cases that
construed a former version of Civ.R. 58, which provided, “A judgment is
effective only when filed with the clerk for journalization.” See, e.g., William
Cherry Trust v. Hofmann (1985), 22 Ohio App.3d 100, 22 OBR 288, 489 N.E.2d
832.
{¶ 20} Civ.R. 58 was amended in 1989. The current version of Civ.R.
58(A) specifies that a judgment is effective only when entered by the clerk upon
the journal, not when it is filed with the clerk:
{¶ 21} “Subject to the provisions of Rule 54(B), upon a general verdict of
a jury, upon a decision announced, or upon the determination of a periodic
payment plan, the court shall promptly cause the judgment to be prepared and, the
court having signed it, the clerk shall thereupon enter it upon the journal. A
judgment is effective only when entered by the clerk upon the journal.”
(Emphasis added.)
{¶ 22} The uncontroverted evidence submitted by the parties in the court
of appeals establishes that although Judge Russo transmitted the signed entry
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January Term, 2012
granting respondents’ motion for summary judgment in the underlying case at
2:55 p.m. on January 12, 2011, it was not received and entered upon the journal
by the clerk of court until 4:05 p.m. on that date or some time thereafter. It is not
until the clerk’s office employee clicks on the document in the electronic queue
that the document is entered upon the journal. Therefore, for purposes of Civ.R.
58(A), Judge Russo’s summary judgment could not have been effective until, at
the earliest, 4:05 p.m. on January 12, 2011.
{¶ 23} Engelhart had already filed her notice of dismissal of the
underlying case pursuant to Civ.R. 41(A)(1)(a) at 3:48 p.m. on January 12, 2011.
“The notice of voluntary dismissal is self-executing and completely terminates the
possibility of further action on the merits of the case upon its mere filing, without
the necessity of court intervention.” Fifth Third, 129 Ohio St.3d 250, 2011-Ohio-
3177, 951 N.E.2d 414, ¶ 17, citing Selker & Furber v. Brightman (2000), 138
Ohio App.3d 710, 714, 742 N.E.2d 203.
{¶ 24} The reliance of the court of appeals and Judge Russo on Loc.R.
19.1(B) of the Court of Common Pleas of Cuyahoga County, General Division, is
also misplaced. That rule merely provides that “[e]lectronic transmission of a
document with an electronic signature by a Judge or Magistrate that is sent in
compliance with procedures adopted by the Court shall, upon the complete receipt
of the same by the Clerk of Court, constitute filing of the document for all
purposes of the Ohio Civil Rules, Ohio Criminal Rules, Rules of Superintendence,
and the Local Rules of this Court.” Again, even if Judge Russo’s summary-
judgment entry was filed with the clerk of court before Engelhart filed her notice
of dismissal with the clerk, the summary-judgment order was not entered upon
the journal by the clerk of court until after the notice of dismissal was filed.
{¶ 25} Therefore, in accordance with the plain language of Civ.R. 58(A),
the entry of summary judgment was not effective until after Engelhart’s notice of
dismissal, which was effective upon its filing at 3:48 p.m. on January 12, 2011.
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SUPREME COURT OF OHIO
The attempted entry by the clerk of Judge Russo’s summary judgment at or after
4:05 p.m. on that same date occurred too late. Consequently, Judge Russo
patently and unambiguously lacked jurisdiction to enter summary judgment on the
merits of the underlying case.
{¶ 26} Thus, the court of appeals erred in denying Engelhart’s request for
a writ of prohibition to prevent Judge Russo from proceeding on the merits of the
underlying case after Engelhart had filed her notice of dismissal. The court of
appeals further erred in denying Engelhart’s request for a writ of mandamus to
compel Judge Russo to vacate her entry striking the notice of dismissal and her
entry of summary judgment in the underlying case and to compel Judge Russo to
reinstate her notice of dismissal.
Collateral Proceeding in Contempt
{¶ 27} In her complaint for writs of prohibition and mandamus, Engelhart
also sought to prevent Judge Russo from further proceeding in the underlying case
and to compel her to vacate all orders she had issued after the notice of dismissal
was filed. These additional orders include the judge’s order to show cause and
order imposing contempt sanctions against Engelhart’s attorney in the underlying
case.
{¶ 28} Insofar as these claims are concerned, “[t]rial courts may consider
collateral issues like criminal contempt * * * despite a dismissal.” State ex rel.
Ahmed v. Costine, 100 Ohio St.3d 36, 2003-Ohio-4776, 795 N.E.2d 672, ¶ 5.
Judge Russo did not patently and unambiguously lack jurisdiction to determine
the contempt issue notwithstanding Engelhart’s dismissal of the case, and
Engelhart and her attorney have an adequate remedy by way of her pending
appeal from the judge’s sanctions to raise any claimed error by the judge in her
ruling. Fifth Third, 129 Ohio St.3d 250, 2011-Ohio-3177, 951 N.E.2d 414, ¶ 24.
In fact, in her reply brief on appeal, Engelhart now claims that this appeal “does
not concern collateral matters,” that it addresses simply “the trial court’s entry
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January Term, 2012
striking the dismissal notice,” and that a “separate appeal is pending concerning
the court’s grant of sanctions.”
{¶ 29} Therefore, the court of appeals did not err in denying Engelhart’s
prohibition and mandamus claims insofar as they contested Judge Russo’s orders
concerning contempt following the filing of the notice of dismissal.
Conclusion
{¶ 30} Based on the foregoing, we reverse the judgment of the court of
appeals insofar as it (1) denied a writ of prohibition to prevent Judge Russo from
proceeding on the merits of the underlying case following the filing of the notice
of voluntary dismissal and (2) denied a writ of mandamus to compel Judge Russo
to vacate her order granting summary judgment, vacate her order striking the
notice of dismissal, and reinstate the notice of dismissal. We affirm that portion
of the judgment denying writs of mandamus and prohibition as they relate to the
collateral issue of contempt.
Judgment affirmed in part
and reversed in part.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
LANZINGER, J., concurring.
{¶ 31} I concur reluctantly, for in reversing the appellate court’s judgment
that denied the writs of prohibition and mandamus, it appears as though we are
rewarding an attorney who used tactics that were less than forthright. On January
12, 2011, at 2:25 p.m., Judge Russo electronically transmitted her signed order to
the clerk of courts of Cuyahoga County that granted summary judgment in favor
of the respondents. Loc.R. 19.1(B) of the Court of Common Pleas of Cuyahoga
County, General Division, provides:
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{¶ 32} “Electronic transmission of a document with an electronic
signature by a Judge or Magistrate that is sent in compliance with procedures
adopted by the Court shall, upon the complete receipt of the same by the Clerk of
Court, constitute filing of the document for all purposes of the Ohio Civil Rules,
Ohio Criminal Rules, Rules of Superintendence, and the Local Rules of this
Court.” (Emphasis added.)
{¶ 33} After transmitting her order to the clerk’s office, Judge Russo also
notified the attorneys electronically that she had granted the respondents’ motion
for summary judgment. And although the judge’s order had been queued at 2:25
p.m. in the clerk’s office, it was not entered on the clerk’s journal, stamped with a
precise time and date until 4:05 p.m. In the meantime, Engelhart’s attorney was
able to file a motion to voluntarily dismiss the case at 3:48 p.m.
{¶ 34} Unfortunately, the local rule conflicts with the current version of
Civ.R. 58(A), which specifies that “[a] judgment is effective only when entered
by the clerk upon the journal.” Local rules may not be inconsistent with any rule
prescribed by this court governing procedure or practice, including the Rules of
Civil Procedure. Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 554, 597
N.E.2d 153. Thus, despite the judge’s completion of all actions required of her
and notification to the parties of her order, the deputy clerk’s delay in “entering”
the order on the journal of the clerk of courts made the order ineffective as against
a voluntary dismissal under Civ.R. 41(A).
{¶ 35} The language of the Civil Rule permits no alternative.
O’CONNOR, C.J., and MCGEE BROWN, J., concur in the foregoing opinion.
__________________
Graydon, Head & Ritchie, L.L.P., and John C. Greiner, for appellant.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Charles
E. Hannan, Assistant Prosecuting Attorney, for appellee.
______________________
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