[Cite as State ex rel. Fifth Third Mtge. Co. v. Russo, 129 Ohio St.3d 250, 2011-Ohio-3177.]




    THE STATE EX REL. FIFTH THIRD MORTGAGE COMPANY, APPELLEE AND
   CROSS-APPELLANT, v. RUSSO, JUDGE, APPELLANT AND CROSS-APPELLEE.
                [Cite as State ex rel. Fifth Third Mtge. Co. v. Russo,
                        129 Ohio St.3d 250, 2011-Ohio-3177.]
Mandamus — Prohibition — Civ.R. 41(A) voluntary dismissal — Writ of
        prohibition will issue to prevent judge from proceeding in case that was
        voluntarily dismissed — Mandamus will issue to compel judge to vacate
        order striking plaintiff’s notice of voluntary dismissal — First voluntary
        dismissal forecloses any further action in dismissed case except for
        collateral matters such as contempt — Prohibition will not lie to prevent
        judge from proceeding on issue of contempt.
      (No. 2010-1579 — Submitted May 10, 2011 — Decided July 6, 2011.)
  APPEAL and CROSS-APPEAL from the Court of Appeals for Cuyahoga County,
                   Nos. 94816, 94817, and 94818, 2010-Ohio-3734.
                                  __________________
        Per Curiam.
        {¶ 1} This is an appeal from a judgment granting writs of mandamus and
prohibition against appellant and cross-appellee, Cuyahoga County Court of
Common Pleas Judge Nancy Margaret Russo. The writ of mandamus directed
Judge Russo to vacate the portion of her order striking the notice of appellee and
cross-appellant, Fifth Third Mortgage Company, voluntarily dismissing its
foreclosure action without prejudice. The writ of prohibition ordered Judge Russo
not to proceed on Fifth Third’s dismissed claim. In addition, Fifth Third cross-
appealed from the portion of the judgment denying a writ of prohibition to
prevent Judge Russo from conducting a contempt proceeding in the dismissed
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case. Because the court of appeals ruled properly in the underlying writ case, we
affirm the judgment.
                                       Facts
        Fifth Third Mtge. Co. v. Markus, Cuyahoga C.P. No. CV 09 704576
        {¶ 2} Fifth Third operates and does business as a mortgage company and
provides residential and commercial loans throughout Ohio. In September 2009,
Fifth Third filed a foreclosure action against Steven Markus in the Cuyahoga
County Court of Common Pleas. Judge Russo issued an order that provided:
        {¶ 3} “If a forbearance agreement or payment plan is in effect in this
case, the court hereby orders [Fifth Third] to notify the court within seven days of
said agreement or plan. Failure to comply will result in a show cause hearing.”
        {¶ 4} The parties in the foreclosure case then negotiated a loan-
modification agreement in which the original mortgage amount was increased
from $87,550 to $102,590.47 and other terms of the loan were changed. In the
agreement, Markus acknowledged that the agreement did not release his
obligations under the parties’ original note and security instrument:
        {¶ 5} “Nothing in this Agreement shall be understood or construed to be
a satisfaction or release in whole or in part of the Note or Security Instrument.
Except as otherwise specifically provided in this Agreement, the Note and
Security Instrument will remain in full force and effect and unchanged, and
Borrower(s) and Lender will be bound by, and comply with, all of the terms and
provisions thereof, as amended by this Agreement.”
        {¶ 6} On March 2, 2010, Fifth Third filed a notice pursuant to Civ.R.
41(A) voluntarily dismissing its complaint, without prejudice, in the foreclosure
case. No counterclaims had been asserted, and no trial had been scheduled in the
case.   The next day, Markus filed notice of the parties’ loan-modification
agreement with the court.




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                                January Term, 2011




       {¶ 7} On March 4, 2010, Judge Russo issued an entry striking Fifth
Third’s notice of dismissal because “[Civ.R.] 41(A) voluntary dismissal is not
appropriate when the parties have reached a settlement.” In the same entry, Judge
Russo ordered a hearing for Fifth Third and its attorney to “show cause why they
should not be held in contempt for filing a notice of dismissal when the case in
actuality was settled via loan modification.” Judge Russo later issued an entry
clarifying her order by stating that “[u]sing Civ.R. 41(A) to reserve the right to
refile the case on the original mortgage is improper.”
                                    Writ Cases
       {¶ 8} On March 15, 2010, Fifth Third filed complaints in the Court of
Appeals for Cuyahoga County for writs of mandamus and prohibition and for an
expedited alternative writ. Fifth Third requested a writ of mandamus to compel
Judge Russo to vacate her March 4, 2010 order striking Fifth Third’s notice of
voluntary dismissal without prejudice, a writ of prohibition to prevent Judge
Russo from proceeding in the foreclosure case, including the show-cause
contempt hearing, and an expedited alternative writ of prohibition to prevent
Judge Russo from proceeding. The court of appeals consolidated the cases and
granted an alternative writ staying further proceedings in the foreclosure case.
       {¶ 9} Judge Russo filed motions for summary judgment and to dissolve
the alternative writ, and Fifth Third filed a response.      The court of appeals
subsequently granted a writ of mandamus to compel Judge Russo to vacate the
portion of the March 4, 2010 entry striking Fifth Third’s notice of voluntary
dismissal without prejudice.     State ex rel. Fifth Third Mtge. Co. v. Russo,
Cuyahoga App. Nos. 94816, 94817, and 94818, 2010-Ohio-3734, 2010 WL
3171460. The court of appeals also granted a writ of prohibition to prevent Judge
Russo from proceeding on the claim asserted by Fifth Third in the foreclosure
case but denied a writ of prohibition to prevent the judge from proceeding on the
show-cause contempt matter. Id.



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       {¶ 10} This cause is now before the court upon Judge Russo’s appeal as of
right and Fifth Third’s cross-appeal.
                                        Analysis
                                        Appeal
       {¶ 11} In her appeal as of right, Judge Russo asserts that the court of
appeals erred in granting writs of mandamus and prohibition to compel her to
vacate her order striking Fifth Third’s notice of voluntary dismissal without
prejudice in the foreclosure action and to prevent her from proceeding on Fifth
Third’s claim in that case.
       {¶ 12} “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; State ex rel. Powell v. Markus,
115 Ohio St.3d 219, 2007-Ohio-4793, 874 N.E.2d 775, ¶ 7. “[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; State ex rel. Benbow v. Runyan, 99 Ohio St.3d 410, 2003-
Ohio-4127, 792 N.E.2d 1124, ¶ 6.
       {¶ 13} There are exceptions to this general rule, most notably that despite
a voluntary dismissal, a trial court may consider collateral issues not related to the
merits of the action, e.g., sanctions under Fed.R.Civ.P. 11, R.C. 2323.51, and
Civ.R. 45(E), and criminal contempt. See Hummel at ¶ 23-24, and cases cited
therein.
       {¶ 14} The portion of the foreclosure case at issue in Judge Russo’s
appeal, however, directly relates to the merits of the foreclosure claim. That is,



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Judge Russo held that Fifth Third’s Civ.R. 41(A)(1)(a) notice voluntarily
dismissing without prejudice the foreclosure case was improper because the claim
had been effectively extinguished by the parties’ loan-modification agreement.
          {¶ 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.” “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.” Civ.R. 41(A)(1). There was no counterclaim filed in the foreclosure
case, and no trial had commenced.
          {¶ 16} “To interpret court rules, this court applies general principles of
statutory construction. * * * Therefore, we must read undefined words or phrases
in context and then construe them according to rules of grammar and common
usage.”     State ex rel. Law Office of Montgomery Cty. Public Defender v.
Rosencrans, 111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 23. “If a
court rule is unambiguous, we apply it as written.” Erwin v. Bryan, 125 Ohio
St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 22.
          {¶ 17} The 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. “It is axiomatic that such dismissal deprives the
trial court of jurisdiction over the matter dismissed. After its voluntary dismissal,
an action is treated as if it had never been commenced.” Zimmie v. Zimmie
(1984), 11 Ohio St.3d 94, 95, 11 OBR 396, 464 N.E.2d 142. 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



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of court intervention. See, e.g., Selker & Furber v. Brightman (2000), 138 Ohio
App.3d 710, 714, 742 N.E.2d 203; Payton v. Rehberg (1997), 119 Ohio App.3d
183, 191-192, 694 N.E.2d 1379.
       {¶ 18} And under the unambiguous text of the rule, the dismissal is
without prejudice “[u]nless otherwise stated in the notice of dismissal * * *,
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.” Civ.R. 41(A)(1).
Because the notice filed by Fifth Third in the underlying foreclosure case stated
that the dismissal was without prejudice, and Fifth Third had not previously
dismissed the same foreclosure claim in any previous action, the dismissal
without prejudice was effective once it was filed. No further court action was
required.
       {¶ 19} Judge Russo, however, argues that the parties’ loan-modification
agreement represented a settlement of Fifth Third’s original foreclosure claim,
which barred its right to recover on that claim. Yet the judge ignores the explicit
language of the parties’ agreement that it did not constitute a satisfaction or
release of the note and security agreement.
       {¶ 20} Moreover, even were the judge correct, Civ.R. 41(A)(1) does not
recognize any exception for purportedly settled claims that have not been
formally dismissed before the plaintiff files a notice of dismissal pursuant to the
rule. Notably, Judge Russo cites no case that so holds. Instead, she cites cases in
which the court held that settlement barred subsequent litigation based on the
same claim, see Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-
5717, 816 N.E.2d 1061, ¶ 20, and that a third foreclosure action following the
lender’s voluntary dismissal of two previous foreclosure actions based on the
same promissory note and mortgage was barred by the double-dismissal rule of
Civ.R. 41(A)(1)(a). U.S. Bank Natl. Assn. v. Gullotta, 120 Ohio St.3d 399, 2008-
Ohio-6268, 899 N.E.2d 987, ¶ 25-28. Neither case controls the circumstances



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here, which involve Fifth Third’s absolute right under Civ.R. 41(A)(1) to dismiss
its foreclosure action once without prejudice.       Thus, Fifth Third properly
dismissed its case without prejudice.
       {¶ 21} “When a case has been properly dismissed pursuant to Civ.R.
41(A)(1), the court patently and unambiguously lacks jurisdiction to proceed and
a writ of prohibition will issue to prevent the exercise of jurisdiction.” State ex
rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 161, 656 N.E.2d 1288; State ex
rel. Hunt v. Thompson (1992), 63 Ohio St.3d 182, 183, 586 N.E.2d 107.
       {¶ 22} Therefore, the court of appeals properly granted the requested
extraordinary relief in mandamus and prohibition to compel Judge Russo to
vacate that portion of the March 4, 2010 entry striking Fifth Third’s notice of
voluntary dismissal without prejudice of its foreclosure case and to prevent Fifth
Third from proceeding on its foreclosure claim.
                                  Cross-Appeal
       {¶ 23} In its cross-appeal, Fifth Third asserts that the court of appeals
erred in denying the writ of prohibition to prevent Judge Russo from proceeding
to determine whether Fifth Third should be held in contempt for filing a notice of
dismissal.
       {¶ 24} As noted previously, “[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. The mere fact that the
contempt issue was raised after Fifth Third voluntarily dismissed its foreclosure
claim does not necessitate a finding that the trial court patently and
unambiguously lacked jurisdiction to raise that issue. Insofar as Fifth Third might
be found in contempt in those ongoing proceedings, it has an adequate remedy by
appeal following any such order. State ex rel. Mason v. Burnside, 117 Ohio St.3d
1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 15; State ex rel. Mancino v. Campbell




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(1993), 66 Ohio St.3d 217, 220, 611 N.E.2d 319 (“appealing a contempt order is
an adequate remedy at law which will result in denial of the writ”).
           {¶ 25} Consequently, the court of appeals correctly denied the requested
extraordinary relief in prohibition to prevent the contempt proceeding.
                                      Conclusion
           {¶ 26} Based on the foregoing, the court of appeals did not err in its
judgment. Therefore, we affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
           O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and CUPP, JJ.,
concur.
           LUNDBERG STRATTON and MCGEE BROWN, JJ., concur in part and dissent
in part.
                                __________________
           LUNDBERG STRATTON, J., concurring in part and dissenting in part.
           {¶ 27} I concur in the decision to grant writs of mandamus and
prohibition to compel Judge Russo to vacate the March 4, 2010 entry striking
Fifth Third’s notice of voluntary dismissal without prejudice and to prevent Fifth
Third from proceeding on its foreclosure case. I respectfully dissent from the
decision denying Fifth Third relief in prohibition to prevent Judge Russo from
conducting the contempt proceeding. I believe that Judge Russo patently and
unambiguously lacks jurisdiction to conduct the contempt proceeding and that an
appeal is not an adequate remedy at law for Fifth Third.
           {¶ 28} Fifth Third was not in contempt of a court order in the underlying
case when Judge Russo issued a show-cause order on March 4, 2010.               The
underlying case had already been dismissed and no longer existed.            As the
majority opinion states, “the dismissal without prejudice was effective once it was
filed. No further court action was required.” Thus, it follows that the judge
patently and unambiguously lacked jurisdiction following dismissal to issue the



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show-cause order. The parties had settled the matter, and Fifth Third had filed a
Civ.R. 41(A) voluntary dismissal on March 2, 2010. Judge Russo does not allege
that Fifth Third disobeyed a court order, but instead, she alleged that Fifth Third
was in contempt for filing a notice of dismissal following settlement. Although a
court may consider a collateral issue of criminal contempt after the underlying
action is no longer pending, see State ex rel. Corn v. Russo (2001), 90 Ohio St.3d
551, 556, 740 N.E.2d 265, the criminal contempt allegations here did not arise
prior to dismissal.   Judge Russo’s allegations relate to the actual notice of
dismissal and to the merits of the underlying action – they are not collateral
issues. Consequently, I believe that Judge Russo lacked jurisdiction to proceed
following Fifth Third’s dismissal.
       {¶ 29} Fifth Third’s remedy by appeal, in the unlikely event it is found in
contempt, is not adequate. An adequate legal remedy must be practical and
efficient and promptly administer justice. Mid-America Tire, Inc. v. PTZ Trading
Ltd., 95 Ohio St.3d 367, 2002-Ohio-2427, 768 N.E.2d 619, ¶ 81. It is illogical to
require Fifth Third to appear and defend in a contempt action under these
circumstances, as well as time-consuming and costly to Fifth Third and the
judicial system. In the unlikely event that Fifth Third does not prevail in the
contempt proceeding, an appeal is not as efficient as a writ of prohibition would
be if we granted it now. Thus, I believe that an appeal is an inefficient and
inadequate remedy, and I would grant a writ of prohibition to prohibit Judge
Russo from proceeding on the contempt hearing.
       {¶ 30} I respectfully dissent from the resolution of the cross-appeal.
       MCGEE BROWN, J., concurs in the foregoing opinion.
                              __________________
       Graydon, Head & Ritchey, L.L.P., John C. Greiner, Harry W. Cappel, and
Katherine M. Lasher, for appellee and cross-appellant.




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       William D. Mason, Cuyahoga County Prosecuting Attorney, and Charles
E. Hannan, Assistant Prosecuting Attorney, for appellant and cross-appellee.
                           ______________________




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