[Cite as State Bank & Trust Co. v. Smith, 2019-Ohio-5273.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    WILLIAMS COUNTY


The State Bank and Trust Company                             Court of Appeals No. WM-19-003

        Appellant                                            Trial Court No. CVI1900103

v.

Carly L. Smith                                               DECISION AND JUDGMENT

        Appellee                                             Decided: December 20, 2019

                                                 *****

        Kevin J. Whitlock and Kayla A. Baker, for appellant.

                                                 *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a March 25, 2019 judgment of the Bryan Municipal

Court dismissing a small claims complaint with prejudice.

        {¶ 2} In this case, on January 22, 2019, appellant, The State Bank and Trust

Company, filed a small claim petition against the appellee, Carly L. Smith, in the Bryan

Municipal Court, Small Claims Division.
       {¶ 3} The petition sought the sum of $1,078.38 from appellee upon a delinquent

account in addition to fees, court costs and costs of the action.

       {¶ 4} On January 25, 2019, the clerk mailed a summons to the parties to appear for

a hearing on March 25, 2019.

       {¶ 5} When the case was called, the following occurred:

                THE COURT: Are you ready to proceed?

                PLAINTIFF’S ATTORNEY: Your Honor, I do not have a client

       present. So if this Court would allow a continuance, or we can dismiss and

       re-file, whichever you prefer.

                THE COURT: The case will be dismissed. They know to be here.

       Case is dismissed.

                PLAINTIFF’S ATTORNEY: Without prejudice, Your Honor?

                THE COURT: Well, from - - well, no. They’re here. So, yeah, it’s

       with prejudice. We’re done. If they can’t be here, then we’re done.

       {¶ 6} Procedurally, appellant filed a motion for reconsideration which was denied

by the court.

       {¶ 7} Appellant presents a single assignment of error:

                I. THE MUNICIPAL COURT ABUSED ITS DISCRETION IN

       REFUSING TO GRANT PLAINTIFF’S MOTION FOR DISMISSAL

       PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 41(A)(2) AND

       DISMISSING PLAINTIFF’S CLAIM WITH PREJUDICE.




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       {¶ 8} Generally, the trial court’s decision to grant or deny a Civ.R. 41(A)(2)

dismissal will not be disturbed on appeal absent a finding of abuse of discretion.

Edwards v. Reser, 6th Dist. Ottawa No. OT-07-022, 2007-Ohio-6520, ¶ 39. An abuse of

discretion connotes more than a mere error of law or judgment, instead requiring a

finding that the trial court’s decision was unreasonable, arbitrary, or unconscionable.

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 9} Civ.R. 41(A)(2) provides:

              (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.

       {¶ 10} In Douthitt v. Garrison, 3 Ohio App.3d 254, 255, 444 N.E.2d 1068 (9th

Dist.1981), the Ninth District Court of Appeals adopted the federal courts’ construction

of Fed.R.Civ.P. 41(a)(2), which emphasizes the traditional rule that voluntary dismissals




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should be allowed unless the defendant will be prejudiced “‘other than [by] the mere

prospect of a second lawsuit.’” Douthitt at 256, quoting Holiday Queen Land

Corporation v. Baker, 489 F.2d 1031, 1032 (5th Cir.1974).

       {¶ 11} The Third District has since also adopted the federal courts’ interpretation

of the rule. Capital One Bank v. Woten, 169 Ohio App.3d 13, 2006-Ohio-4848, 861

N.E.2d 859, ¶ 8 (3d Dist.). Likewise, we shall also adopt this interpretation of Civ.R

41(A)(2).

       {¶ 12} Like the facts in Douthitt, the record before us contains no evidence that

would show any prejudice to the defendant other than the prospect of a second lawsuit.

However, the plaintiff will suffer great prejudice in that its causes of action will be

forever barred.

       {¶ 13} And similar to the court’s findings in Woten, in this instance, the trial court

made no further inquiry regarding any other prejudice or hardship that appellee might

have incurred if the motion were granted. Therefore, we find that the trial court abused

its discretion by unreasonably and arbitrarily denying The State Bank and Trust

Company’s oral motion to voluntarily dismiss without prejudice under Civ.R. 41(A)(2).

Appellant’s sole assignment of error is found well-taken.

       {¶ 14} The judgment of the Bryan Municipal Court is reversed and remanded to

the trial court for proceedings consistent with this decision. The costs of this appeal are

assessed to appellee pursuant to App.R. 24.




4.
                                                                       Judgment reversed
                                                                          and remanded.
                                                        The State Bank and Trust Co.
                                                        v. Smith
                                                        C.A. No. WM-19-003




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported




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     version are advised to visit the Ohio Supreme Court’s web site at:
              http://www.supremecourt.ohio.gov/ROD/docs/.




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