[Cite as Savoy v. Kramer, 2013-Ohio-3607.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

ALAN SAVOY                                          C.A. No.       26668

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
JEANETTE KRAMER                                     COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellee                                    CASE No.   CV 2012 07 3862

                                DECISION AND JOURNAL ENTRY

Dated: August 21, 2013



        HENSAL, Judge.

        {¶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.

                                               I.

        {¶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.”
                                                 2


       {¶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.

                                                 II.

                                   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
                                                    3


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, L.L.C. v. Joe Sharma Props., L.L.C., 9th Dist. Summit No. 26557, 2013-

Ohio-1773, ¶ 12; FirstMerit Bank, N.A. v. Inks, 9th Dist. Summit Nos. 25980, 26182, 2012-

Ohio-5155, ¶ 20. We, therefore, conclude that this case must be remanded so that the trial court

can consider them.

           {¶7}   Ms. Kramer argues that the trial court did not have to consider Mr. Savoy’s

memorandum in opposition because he did not file it in the time required under Summit County

court of common pleas Local Rule 7.14(A). That issue, however, is also one that the trial court

should determine in the first instance. Mr. Savoy’s assignment of error is sustained.

                                                   III.

           {¶8}   The trial court failed to consider the issues raised by Mr. Savoy in his opposition

memorandum before ruling on Ms. Kramer’s motion to dismiss. The judgment of the Summit

County common pleas court is vacated, and this matter is remanded so that the court can

undertake further consideration of Ms. Kramer’s motion to dismiss.

                                                                                    Judgment vacated,
                                                                                  and cause remanded.




           There were reasonable grounds for this appeal.
                                                 4


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



MOORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

PETER D. TRASKA, Attorney at Law, for Appellant.

CORTNEY R. OREN MORGAN, Attorney at Law, for Appellee.
