[Cite as Schwering v. TRW Vehicle Safety Sys., Inc., 132 Ohio St.3d 129, 2012-Ohio-1481.]




       SCHWERING ET AL. v. TRW VEHICLE SAFETY SYSTEMS, INC., ET AL.
                [Cite as Schwering v. TRW Vehicle Safety Sys., Inc.,
                        132 Ohio St.3d 129, 2012-Ohio-1481.]
Civil procedure—Voluntary dismissal—A plaintiff may not voluntarily dismiss a
        claim without prejudice pursuant to Civ.R. 41(A)(1)(a) when a trial court
        declares a mistrial after the jury has been empaneled and the trial has
        commenced.
    (No. 2011-0438—Submitted November 15, 2011—Decided April 4, 2012.)
ON ORDER from the United States District Court for the Southern District of Ohio,
     Western Division, Certifying a Question of State Law, No. 1:10-CV-679.
                                  __________________
                                SYLLABUS OF THE COURT
A plaintiff may not voluntarily dismiss a claim without prejudice pursuant to
        Civ.R. 41(A)(1)(a) when a trial court declares a mistrial after the jury has
        been empaneled and the trial has commenced.
                                  __________________
        LANZINGER, J.
        {¶ 1} In this case, we decide whether a plaintiff is permitted to unilaterally
dismiss a lawsuit without prejudice pursuant to Civ.R. 41(A)(1)(a) after a
declaration of mistrial.
        {¶ 2} Pursuant to S.Ct.Prac.R. XVIII, we have accepted an issue certified
by the United States District Court for the Southern District of Ohio, Western
Division: “Where a jury has been empaneled and sworn and the trial has
commenced for purposes of Ohio Civ.R. 41(A)(1)(a), and the trial court
subsequently declares a mistrial, does Rule 41(A)(1)(a) permit the plaintiff to
unilaterally voluntarily dismiss his or her claims without prejudice?”
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       {¶ 3} We answer the certified question in the negative.
                                I. Complaint Filed
       {¶ 4} Kenneth Schwering was a passenger in a 2001 Ford Explorer Sport
driven by his wife, Beverly Schwering. On December 28, 2002, the couple was
involved in a traffic accident and the vehicle rolled over. Schwering and his wife
were wearing seatbelts at the time of the accident, but she was killed, and he
sustained injuries.
       {¶ 5} On October 17, 2003, Schwering filed a complaint on his own
behalf and as personal representative of his wife’s estate in the Hamilton County
Court of Common Pleas against Ford Motor Company and TRW Safety Systems,
Inc., asserting products-liability and negligence claims. The complaint alleged
that the design of the seatbelt system in the Explorer was unreasonably dangerous
and that the system was defective, creating an unsafe condition that caused
Schwering’s wife’s death and his own injuries.
       {¶ 6} Over five years later, the case proceeded to trial. A jury was sworn
in on May 28, 2009. Schwering called Steven Meyer, during his case-in-chief, as
an expert witness on restraint systems. Meyer testified that he had tested an
alternative design of the restraint system that would have prevented Beverly
Schwering’s death.
       {¶ 7} Ford objected and moved to strike this testimony, arguing that
Schwering had not disclosed that Meyer had tested an alternative design on the
same model of car involved in the accident. Ford also argued that Meyer had
deceived it and the court during earlier depositions by denying any recollection of
having performed tests on a vehicle like the Schwerings’ Explorer. The trial
judge initially granted Ford’s motion to strike and instructed the jury to disregard
Meyer’s testimony.     Ford moved for a mistrial, contending surprise, undue
prejudice, and discovery violations of Civ.R. 26(D) and (E). Schwering also
moved for a mistrial, on the basis that the court’s exclusion of the proffered


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testimony prevented him from receiving a fair trial. On June 8, 2009, after the
trial judge had reversed his ruling granting Ford’s motion to strike, he declared a
mistrial and scheduled preliminary proceedings for a retrial of the case. Before
the second trial began, Schwering filed a notice of voluntary dismissal without
prejudice pursuant to Civ.R. 41(A)(1)(a).
        {¶ 8} In September 2010, Schwering filed a lawsuit in the United States
District Court for the Southern District of Ohio, asserting the same products-
liability and negligence claims against TRW and Ford on behalf of himself and
his wife’s estate.
        {¶ 9} Ford and TRW filed motions to dismiss the federal action, arguing
that Schwering’s voluntary dismissal in the Hamilton County action did not occur
“before the commencement of trial” as required by Civ.R. 41(A)(1)(a), and thus
the dismissal could not have been “without prejudice.” Schwering objected to the
motions to dismiss, arguing that the mistrial rendered the first trial a nullity,
permitting him to unilaterally dismiss the case without prejudice under Civ.R.
41(A)(1)(a) because trial had not yet “commenced.”
        {¶ 10} The federal court found no state law on whether the declaration of
a mistrial reinstated the right to voluntarily dismiss claims without prejudice. As
a result, the district court certified its question to this court, asking whether a
plaintiff may voluntarily dismiss claims without prejudice pursuant to Civ.R.
41(A)(1)(a) when a trial court declares a mistrial after the jury has been
empaneled and sworn and the trial has commenced for purposes of Civ.R.
41(A)(1)(a). We hold that a plaintiff may not voluntarily dismiss a claim without
prejudice pursuant to Civ.R. 41(A)(1)(a) when a trial court declares a mistrial
after the jury has been empaneled and trial has commenced.




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                                 II. Legal Analysis
       A. Ohio and Federal Rules Differ
       {¶ 11} Since the adoption of the Ohio Rules of Civil Procedure, the
dismissal of actions has been governed by Civ.R. 41. Civ.R. 41(A) provides for
three types of voluntary dismissals: (1) by notice before the commencement of
trial, (2) by stipulation of all parties, and (3) by court order. Chadwick v. Barba
Lou, 69 Ohio St.2d 222, 225, 431 N.E.2d 660 (1982). The provision at issue in
this case, Civ.R. 41(A)(1)(a), allows a plaintiff to voluntarily dismiss a claim
without an order of the court by filing a notice of dismissal at any time before the
commencement of trial.
       {¶ 12} Civ.R. 41 reads:


               (A) Voluntary dismissal: effect thereof
               (1) By plaintiff; by stipulation. Subject to the provisions of
       Civ.R. 23(E), Civ.R. 23.1, and Civ.R. 66, a plaintiff, without order
       of court, may dismiss all claims asserted by that plaintiff against a
       defendant by doing either of the following:
               (a) 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;
               (b) filing a stipulation of dismissal signed by all parties
       who have appeared in the action.
               Unless otherwise stated in the notice of dismissal or
       stipulation, the dismissal is without prejudice, except that a notice
       of dismissal operates as an adjudication upon the merits of any
       claim that the plaintiff has once dismissed in any court.




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                (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.


        {¶ 13} In contrast, Fed.R.Civ.P. 41(a)(1)(A)(i) states that a plaintiff may
dismiss an action without prejudice “by filing a notice of dismissal before the
opposing party serves either an answer or a motion for summary judgment.”
Thus, a party who wishes to dismiss a federal case voluntarily must do so earlier
in the proceedings than in an Ohio court. Under the federal rules, once the
defendant files an answer or a motion for summary judgment, an action may be
dismissed at the plaintiff’s request only by court order.                 Fed.R.Civ.P.
41(a)(2)(A)(1)(a). In Ohio, a plaintiff has the ability to file a notice of dismissal
at any time “before the commencement of trial.” Civ.R. 41(A)(1)(a). By allowing
plaintiffs to dismiss without prejudice at any point before the commencement of
trial, Ohio’s rule is more liberal than its federal counterpart.
        {¶ 14} But Ford and TRW assert that because trial had already
commenced in state court, Schwering could not have voluntarily dismissed his
claims without prejudice without a court order pursuant to Civ.R. 41(A)(2).
According to Ford and TRW, Schwering’s voluntary dismissal of the claims
against them operated as an adjudication on the merits, thus barring further action
in federal court.


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        {¶ 15} Schwering, on the other hand, contends that the state court’s
declaration of a mistrial rendered the trial a nullity, thereby reviving his right to
voluntarily dismiss his claims without prejudice under Civ.R. 41(A)(1)(a).
        {¶ 16} Although we have not yet resolved this question, several Ohio
courts of appeals have addressed the definition of “commencement of trial” and
have held that “a civil trial commences when the jury is empaneled and sworn, or,
in a bench trial, at opening statements.” Frazee v. Ellis Bros. Inc., 113 Ohio
App.3d 828, 831, 682 N.E.2d 676 (5th Dist.1996). Accord Douthitt v. Garrison, 3
Ohio App.3d 254, 256, 444 N.E.2d 1068 (9th Dist.1981); Great Seneca Fin.
Corp. v. Emler, 5th Dist. No. 05CA000030, 2005-Ohio-6465, ¶ 30, quoting
Frazee. We agree and now hold that a civil trial commences when the jury is
empaneled.
        {¶ 17} Courts from other jurisdictions construing similar rules or statutes
have examined the effect of a mistrial when a plaintiff attempts to voluntarily
dismiss an action. The Minnesota Supreme Court has held that a “dismissal after
a mistrial is ‘before the trial begins,’ because a mistrial is in legal effect no trial at
all.” Bolstad v. Paul Bunyan Oil Co., 215 Minn. 166, 168, 9 N.W.2d 346 (1943).
Similarly, after a trial court granted a mistrial and the plaintiff moved for
voluntary dismissal, an Illinois appellate court interpreting that state’s statute
determined that if “a trial is set and commenced but, for some reason is cancelled,
the right to absolute dismissal is still available.” Kilpatrick v. First Church of the
Nazarene, 177 Ill.App.3d 83, 87, 126 Ill.Dec. 508, 531 N.E.2d 1135 (1988). See
also Phelps v. Winona & St. Peter Ry. Co., 37 Minn. 485, 489, 35 N.W. 273
(1887) (when a new trial has been granted and the verdict set aside, a plaintiff has
the right to dismiss his action as if no trial had occurred).
        {¶ 18} Ford argues, however, that evidentiary rulings established in a trial
in which a mistrial was declared are routinely applied by Ohio courts in a second
trial. See State v. Harris, 6th Dist. No. L-83-223, 1984 WL 7878 (May 11, 1984)


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(“When a mistrial is granted the defendant is only entitled to a new trial. The
mistrial had no effect on the prior motion to suppress. The appellant was not
entitled to refile a motion to suppress”); State v. Anderson, 7th Dist. No.
03MA252, 2006-Ohio-4618, ¶ 46 (after a mistrial was granted because of the
violation of a ruling on a motion in limine, a defendant should have been allowed
to rely on a consistent evidentiary ruling on that same issue at the second trial);
Cleveland v. Cleveland Elec. Illum. Co., 538 F.Supp. 1328, 1332 (N.D.Ohio
1981) (after a mistrial, a trial court determined that based on the law-of-the-case
doctrine, several dispositive rulings of the court issued prior to and during the first
trial governed in the subsequent retrial).
       {¶ 19} We agree that it would be incongruous to recognize evidentiary
rulings established during a first trial, while at the same time holding that the first
trial never "commenced" for purposes of Civ.R. 41(A).
       B. Policy Reasons Behind the Rule.
       {¶ 20} This      court    has    explained     that    Civ.R.    41(A)(1)(a)’s
“commencement of trial” language was adopted to prevent a situation in which
parties could try and retry their causes indefinitely until the most favorable
circumstances for submission were finally achieved. Frysinger v. Leech, 32 Ohio
St.3d 38, 42, 512 N.E.2d 337 (1987), quoting Beckner v. Stover, 18 Ohio St.2d 36,
40, 247 N.E.2d 300 (1969). In Beckner, we expressly cautioned against a rule
whereby the plaintiffs “could substitute a voluntary dismissal without prejudice
for an appeal from claimed errors occurring during a trial.”             Id.   Further
elaborating on the purpose of Civ.R. 41, the Eighth District Court of Appeals has
noted that “Civ.R. 41 was written to abolish the broad liberty given to plaintiffs
under R.C. 2323.05(A), which allowed plaintiffs to dismiss any number of times
so long as the statute of limitations had not run.” Olynyk v. Andrish, 8th Dist. No.
86009, 2005-Ohio-6632, 2005 WL 3436343, ¶ 14. Ohio’s rule is more liberal
than the federal rule, because it gives a plaintiff more time to voluntarily dismiss


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without prejudice. The federal rule allows voluntary dismissal without prejudice
only before the opposing party serves either an answer or a motion for summary
judgment. Ohio’s rule, however, still has its limitations.
       C. Express Language of Ohio’s Rule.
       {¶ 21} Civ.R. 41(A)(1)(a) does not refer to a mistrial, and there is no
authority to insert a mistrial exception into the voluntary-dismissal rule. The
Rules of Civil Procedure are to be “construed and applied to effect just results by
eliminating delay, unnecessary expense and all other impediments to the
expeditious administration of justice,” Civ.R. 1(B), and liberal construction rather
than technical interpretation is to be emphasized, 1970 Staff Notes, Civ.R. 1(B).
The commencement of trial cuts off a plaintiff’s ability to unilaterally dismiss
claims without prejudice. After trial has commenced, a plaintiff may dismiss
without prejudice only by stipulation of all parties (Civ.R. 41(A)(1)(b)) or by
order of the trial court (Civ.R. 41(A)(2)). Adherence to these rules results in the
orderly administration of justice by preventing plaintiffs from dismissing multiple
times without prejudice.
       {¶ 22} We have described the combination of Civ.R. 41(A)(1) and (A)(2)
as a mechanism that prevents the possibility of plaintiffs’ abusing the system by
trying and retrying their cases indefinitely. Chadwick, 69 Ohio St.2d at 229, 431
N.E.2d 660. If a plaintiff can unilaterally dismiss an action and start over after
trial commences, other parties will be prejudiced. A plaintiff may still request a
dismissal during trial but may not do so unilaterally. As we have observed, “After
commencement of trial the plaintiff must have the concurrence to the withdrawal
of all other parties (dismissal by stipulation), or subject himself to the court’s
discretion by moving for a court-ordered dismissal pursuant to Civ.R.41(A)(2).”
Id. Once trial begins, the trial court is the gatekeeper, ensuring that dismissal
does not prejudice other parties and occurs “upon such terms and conditions as
the court deems proper.” Civ.R. 41(A)(2). This rule allows the trial court to


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determine the conditions to impose to protect the other parties and to ensure that
they are not prejudiced upon refiling. Therefore, while Civ.R. 41(A)(1)(a) does
not permit a unilateral voluntary dismissal without prejudice once trial has begun,
the trial court, in its discretion, may allow a plaintiff to dismiss pursuant to Civ.R.
41(A)(2).
                                   III. Conclusion
       {¶ 23} We therefore answer the certified question with a no. A plaintiff
may not voluntarily dismiss a claim without prejudice pursuant to Civ.R.
41(A)(1)(a) when a trial court declares a mistrial after the jury has been
empaneled and the trial has commenced.
                                                                        So answered.
       O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, CUPP, and
MCGEE BROWN, JJ., concur.
       PFEIFER, J., concurs in judgment only.
                               __________________
       Barron, Peck, Bennie & Schlemmer, Arthur H. Schlemmer, Michael S.
Barron, and Charles L. Hinegardner; Denney & Barrett, P.C., Richard L. Denney,
and Lydia JoAnn Barrett; and Eynon Law Group, P.C., Richard S. Eynon, and
David M. Brinley, for respondents.
       Thompson Hine, L.L.P., Gary M. Glass, and Elizabeth B. Wright; and
Frost Brown Todd, L.L.C., and Kevin C. Schiferl, for petitioner Ford Motor
Company.
       Squire, Sanders & Dempsey, L.L.P., Damond R. Mace, and Aaron T.
Brogdon, for petitioner TRW Vehicle Safety Systems, Inc.
                            ______________________




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