[Cite as Westlake v. Cleveland, 2019-Ohio-1435.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 107222



                                         CITY OF WESTLAKE

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                        CITY OF CLEVELAND

                                                         DEFENDANT-APPELLANT



                                          JUDGMENT:
                                    REVERSED AND REMANDED


                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-12-782910


            BEFORE:         Blackmon, J., S. Gallagher, P.J., and Jones, J.

            RELEASED AND JOURNALIZED:                    April 18, 2019
ATTORNEYS FOR APPELLANT

Susan M. Audey
Robert J. Hanna
Karl A. Bekeny
Tucker Ellis L.L.P.
950 Main Avenue, Suite 1100
Cleveland, Ohio 44113

Barbara A. Langhenry
Director of Law, City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael P. Maloney
Director of Law
Robin R. Leasure-Soeder
Assistant Law Director
City of Westlake
27700 Hilliard Boulevard
Westlake, Ohio 44145

Dennis M. O’Toole
Matthew A. Dooley
Stephen M. Bosak, Jr.
Frank S. Carlson
O’Toole, McLaughlin, Dooley & Pecora
5455 Detroit Road
Sheffield Lake, Ohio 44054

PATRICIA ANN BLACKMON, J.:

       {¶1}     This appeal arises from this court’s remand in Westlake v. Cleveland, 8th Dist.

Cuyahoga No. 104282, 2017-Ohio-4064 (“Westlake I”). After the trial court convened a hearing

on remand and witness testimony was presented, Westlake filed a Civ.R. 41(A)(1)(a) notice of

voluntary dismissal. Cleveland filed a motion to strike Westlake’s voluntary dismissal, but the

trial court determined that the notice was self-executing and deprived the court of jurisdiction to
rule on Cleveland’s motion to strike. Cleveland filed a mandamus action in this court, seeking a

writ to compel the trial court to proceed with the hearing ordered on remand, and also filed the

instant direct appeal, assigning the following error for our review:

       The trial court erred in denying as moot Appellant City of Cleveland’s Motion to

       strike Appellee City of Westlake’s improperly filed Civ.R. 41(A)(1)(a) notice of

       voluntary dismissal.

       {¶2} During the pendency of this direct appeal, this court issued a writ of mandamus,

concluding that the notice of dismissal “was ineffective and respondent has jurisdiction to rule on

Cleveland’s motion to strike, and to conduct the hearing mandated by this court” in Westlake I.

See State ex rel. Cleveland v. Shaughnessy, 8th Dist. Cuyahoga No. 107403, 2018-Ohio-4797, ¶

21 (“Westlake II”). Having reviewed the record and the controlling case law, we conclude that

Westlake’s Civ.R. 41(A)(1)(a) dismissal was not valid, and the decision in Westlake II specifically

granted the trial court jurisdiction to rule on Cleveland’s motion to strike. Therefore, we reverse

the trial court’s decision that it lacked jurisdiction to rule on the motion to strike. The apposite

facts follow.

       {¶3}     The parties’ dispute stems from Cleveland’s provision of municipal water to

Westlake pursuant to a 1990 water service agreement. After the contract was in effect for

numerous years, Cleveland determined that Westlake had explored alternative sources for water

and notified Westlake that it had to provide five years advance notice in order to terminate the

water service agreement. Westlake II at ¶ 1. Cleveland also imposed significant cost increases

to recover “stranded costs.” Id. at ¶ 2. Westlake filed a declaratory judgment action seeking

declarations that the water agreement terminated after the expiration of 25 years, and that

Cleveland could not recover the “stranded costs.” Westlake I, 2017-Ohio-4064, at ¶ 1. The trial
court, on summary judgment, ruled that: (1) “stranded costs” were not recoverable; (2) the

contract remained in effect for 25 years, then terminated by its own terms in 2015; and (3) the

provisions requiring five-year prior notice of intent to terminate were no longer effective. Id. at ¶

5; Westlake II at ¶ 2.

        {¶4} On direct appeal of the trial court’s ruling in the declaratory judgment action, this

court concluded that Cleveland had no contractual right to recover the “stranded costs,” and that

the water service agreement was a nonexclusive agreement for a minimum period of ten years,

with annual renewals constituting new yearly agreements. Westlake I at ¶ 54. Additionally, in

light of the annual renewals, this court held that the claimed five-year notice of termination was

inapplicable. However, this court found that there is a question of fact as to how much notice

was required, so it “reversed and remanded for proceedings consistent with this opinion.” Id.

        {¶5} The record further reflects that in response to the Westlake I remand, the trial court

set a hearing for March 27, 2018. On the day of the hearing, the trial court permitted witness

Susan Schell, an environmental manager of the Ohio Environmental Protection Agency

(“OEPA”), to testify out of order, on behalf of Cleveland. Following Schell’s testimony on direct

examination and on cross-examination, the trial court continued the hearing until April 27, 2018.

However, on April 23, 2018, Westlake filed a notice of voluntary dismissal without prejudice

pursuant to Civ.R.41(A)(1)(a).

        {¶6} On April 25, 2018, Cleveland filed a motion to strike Westlake’s notice of voluntary

dismissal. Cleveland maintained that although Civ.R.41(A)(1)(a) authorizes a plaintiff to file a

notice of dismissal at any time before the commencement of trial, Westlake’s notice was filed

after the evidentiary hearing had already begun, so it was a nullity. On April 26, 2018, the trial

court ruled that the voluntary dismissal divested it of jurisdiction, and that Cleveland’s motion to
strike was moot. This ruling is the subject of Cleveland’s instant direct appeal. “[T]he appeal

filed by Cleveland is limited to a determination of whether the trial court retained jurisdiction to

rule on Cleveland’s motion to strike.” Westlake II at ¶ 26.

        {¶7} While this direct appeal was pending, Cleveland also filed a verified complaint in
mandamus in this court, seeking a writ to compel the trial court to proceed with the hearing
ordered on remand. Westlake II, 2018-Ohio-4797, at ¶ 2. On November 17, 2018, this court
granted the writ of mandamus and directed the trial court to hold the hearing ordered in the
remand of Westlake I. Westlake II at ¶ 8. This court recognized that Civ.R. 41(A)(1)(a) permits
a plaintiff to file a notice of dismissal “at any time before the commencement of trial,” and that
“[t]he filing of a valid notice of voluntary dismissal is effective on filing, and deprives the court of
further jurisdiction to act.” (Emphasis added.) Id. at ¶ 13. However, this court rejected
Westlake’s assertions that: (1) the March 27, 2018 evidentiary hearing did not constitute a trial
within the meaning of Civ.R. 41(A)(1)(a); and (2) the taking of Schell’s testimony was simply an
accommodation, not the start of the trial. Id. at ¶ 15-16. Rather, this court held as follows:

       Therefore, Westlake could not use a notice of voluntary dismissal to terminate the
       action because trial had commenced. The notice was ineffective and respondent
       has jurisdiction to rule on Cleveland’s motion to strike, and to conduct the hearing
       mandated by this court. * * *

       Cleveland is entitled to have the trial court rule on its motion to strike and to move
       forward with the trial regardless of Westlake’s notice of voluntary dismissal.

(Emphasis added.) Id. at ¶ 21-23.

                                         Civ.R. 41(A)(1)(a)

       {¶8} 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.

Schwering v. TRW Vehicle Safety Sys., 132 Ohio St.3d 129, 2012-Ohio-1481, 970 N.E.2d 865, ¶

14. However, the commencement of trial cuts off a plaintiff’s ability to unilaterally dismiss

claims without prejudice. Id. at ¶ 21. At that point, 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)). Id. The Schwering court stated:
        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 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).

Id. at ¶ 22.

        {¶9} Further, in State ex rel. Conkle v. Sadler, 99 Ohio St.3d 402, 2003-Ohio-4124, 792

N.E.2d 1116, the Ohio Supreme Court held that in the absence of a patent and unambiguous lack

of jurisdiction, a court having general subject matter jurisdiction can determine its own

jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal. Id. at ¶

8.



                                       The Law of the Case

        {¶10} The doctrine of the law of the case “provides that the decision of a reviewing court

in a case remains the law of the case on the legal questions             involved for all subsequent

proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1,

3, 462 N.E.2d 410 (1984). Thus, “an inferior court has no discretion to disregard the mandate of

a superior court in a prior appeal in the same case.” Id. at syllabus.

        {¶11} In Westlake II, this court held that following the Westlake I remand, a hearing on the

merits had commenced, so Westlake’s “notice of [voluntary] dismissal was ineffective and [the

trial court] has jurisdiction to rule on Cleveland’s motion to strike, and to conduct the hearing

mandated by this court.”       Westlake II, 2018-Ohio-4797, ¶ 20-21. This court stated that

“Cleveland is entitled to have the trial court rule on its motion to strike and to move forward with
the trial regardless of Westlake’s notice of voluntary dismissal.” Id. at ¶ 23. This ruling is the

law of the case in this matter. See also In re Guardianship of Hards, 11th Dist. Lake No.

2007-L-150, 2009-Ohio-1002, ¶ 49. Therefore, the question of the trial court’s jurisdiction to

rule on the motion to strike and to hold a hearing as ordered on remand in Westlake I are beyond

question in this point of the litigation. Significantly, in issuing the writ of mandamus, this court

stated,“Respondent is directed to proceed with the hearing to determine what constitutes

reasonable notice as directed in Westlake I.” Westlake II at ¶ 28.

       {¶12} In accordance with all of the foregoing, we conclude that the trial court erred in

ruling that Westlake’s notice of voluntary dismissal “terminates this court’s jurisdiction” and

rendered the motion to strike moot. The court mistakenly concluded that it lacked jurisdiction to

rule on Cleveland’s motion to strike Westlake’s Civ.R. 41(A)(1)(a) notice of dismissal.

       {¶13} Cleveland’s sole assigned error is well taken.

       {¶14} Reversed and remanded.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules

of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

LARRY A. JONES, SR., J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS
WITH SEPARATE OPINION ATTACHED
SEAN C. GALLAGHER, P.J., CONCURRING:

       {¶15} I concur with the majority opinion but write separately to clarify the disposition

based on the particular facts of this case and in light of the writ of mandamus granted in State ex

rel. Cleveland v. Shaughnessy, 8th Dist. Cuyahoga No. 107403, 2018-Ohio-4797 (“Westlake II”).

In that original action, the respondent was ordered to conduct a hearing to determine what

constitutes reasonable notice to terminate the parties’ agreement.   In granting that writ, however,

it was explained that when given a mandate upon remand, if the trial court “mistakes or

misconstrues the decree of this court, and does not give full effect to the mandate, its action may

be controlled, either upon a new appeal (if involving a sufficient amount) or by a writ of

mandamus to execute the mandate of this court.” (Emphasis added.) Id. at ¶ 9, quoting State

ex rel. Heck v. Kessler, 72 Ohio St.3d 98, 100-102, 647 N.E.2d 792 (1995). Under that rationale,

no party has the right to both remedies, and nothing in today’s opinion should be interpreted

otherwise. Although this court considered the matter based on the briefing filed before the

conclusion of the original action, I note that the resolution herein is limited to the unique

circumstances of this case.
