[Cite as Guardian Alarm Co. v. Portentoso, 2012-Ohio-4657.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




GUARDIAN ALARM COMPANY,

        PLAINTIFF-APPELLEE,                                   CASE NO. 13-12-20

        v.

NICHOLAS PORTENTOSO,                                          OPINION

        DEFENDANT-APPELLANT.




                        Appeal from Fostoria Municipal Court
                            Trial Court No. CVF0900014

                                     Judgment Affirmed

                           Date of Decision: October 9, 2012




APPEARANCES:

        Charles R. Hall, Jr. for Appellant

        Alvin I. Gilmore for Appellee
Case No. 13-12-20


PRESTON, J.

       {¶1} Defendant-appellant, Nicholas Portentoso, appeals the Fostoria

Municipal Court’s judgment awarding $2,472.15 in damages to plaintiff-appellee,

Guardian Alarm Company, and denying Guardian’s motion for voluntary

dismissal. Portentoso contends that the award exceeded the $15,000 jurisdictional

limit for a municipal court, and that the trial court erred by denying the motion for

a voluntary dismissal. For the reasons that follow, we affirm.

       {¶2} On January 13, 2009, Guardian filed a complaint against Portentoso

alleging he owed the company $14,973.32 following the termination of his

employment. (Doc. No. 1). On March 3, 2009, Portentoso filed his answer and

counterclaim. (Doc. No. 5).

       {¶3} On August 17, 2009, Guardian filed an amended complaint specifying

that Portentoso owed Guardian $14,999.00 because the company had paid him

more in draws than he earned in commission. (Doc. No. 18). Guardian alleged

that its contract with Portentoso required him to repay the company that amount

after the termination of his employment. (Id.). Portentoso filed his answer to the

amended complaint on September 1, 2009. (Doc. No. 24)

       {¶4} The matter proceeded to a bench trial on September 15, 2010. (Doc.

No. 35). On November 24, 2010, the trial court filed its judgment entry, finding

that, according to his employment contract, Portentoso owed Guardian $17,445.47


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for draws he had received prior to the termination of his employment. (Doc. No.

35). The trial court further found that pursuant to R.C. 1901.017, its monetary

jurisdiction could not exceed $15,000. (Id.). The trial court ordered Portentoso to

pay Guardian monetary damages in the amount of $15,000. (Id.).

       {¶5} On November 29, 2010, Portentoso filed a motion requesting that the

trial court issue findings of fact and conclusions of law. (Doc. No. 37). On

December 1, 2010, the trial court denied Portentoso’s motion because its

November 24, 2010 judgment entry contained specific findings of fact and

conclusions of law. (Id.).

       {¶6} On December 20, 2010, Portentoso filed a notice of appeal. (Doc. No.

40).   This Court found that Guardian failed to provide sufficient evidence

pertaining to Portentoso’s employment in 2004, but that Guardian had sustained its

burden of proof for Portentoso’s employment in 2005. Guardian Alarm Co. v.

Portentoso, 3d Dist. No. 13-10-54, 2011-Ohio-5443, ¶ 26. This Court further held

that the trial court should have granted Portentoso’s Civ.R. 41(B)(2) motion to

dismiss as it pertained to his 2004 employment, but we affirmed the trial court’s

decision as it pertained to the repayment of any money Portentoso owed as a result

of his 2005 employment. (Id. at ¶ 27).

       {¶7} Subsequent to this Court’s decision, Portentoso filed a motion

requesting that the trial court accept his proposed judgment entry awarding


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Guardian $26.68. (Doc. No. 50). Portentoso argued that Guardian had claimed he

owed $14,973.32 for 2004, and the $15,000 in damages the trial court had

awarded minus the $14,973.32 this Court held Guardian failed to prove resulted in

$26.68 in damages. (Id.). On March 1, 2012, Guardian filed a notice of dismissal

without prejudice pursuant to Civ.R. 41(A). (Doc. No. 53).

       {¶8} On April 5, 2012, the trial court filed its judgment entry on remand.

(Doc. No. 54). The trial court overruled Portentoso’s motion for a proposed

judgment entry, holding it did not conform to this Court’s decision. (Id.). The

trial court also struck Guardian’s notice of dismissal from the record, finding that

the notice was a nullity pursuant to Civ.R. 41(A)(1)(a) because a plaintiff can only

file such a notice prior to trial. (Id.). The trial court found that Portentoso owed

$2,472.15 from his 2005 employment and awarded that amount to Guardian. (Id.).

      {¶9} On April 27, 2012, Portentoso filed a notice of appeal.            (Id.).

Portentoso now raises two assignments of error for our review. We elect to

address Portentoso’s second assignment of error first.

                           Assignment of Error No. II

      The trial court erred in denying the Appellee’s Voluntary
      Dismissal pursuant to Ohio Rule of Civil Procedure 41(B).

      {¶10} In his second assignment of error, Portentoso argues the trial court

abused its discretion by striking Guardian’s notice of dismissal.        Portentoso

contends that although Guardian filed the notice after the trial was completed,

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Guardian failed to prosecute the case, and the trial court should have dismissed the

case pursuant to Civ.R. 41(B) if it could not do so pursuant to Civ.R. 41(A).

       {¶11} The decision to grant or deny a motion to dismiss is reviewed for an

abuse of discretion.    Jeffers v. Athens Cty. Commrs., 4th Dist. Nos. 10CA3,

10CA15, 2011-Ohio-675, ¶ 13; Hatcher v. Heiner’s Bakery, Inc., 4th Dist. No.

95CA2400, *3 (Dec. 4, 1996). An abuse of discretion suggests the trial court’s

decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

       {¶12} Civ. R. 41(A) establishes three ways a plaintiff can voluntarily

dismiss its own case without prejudice. Olynk v. Scoles, 114 Ohio St.3d 56, 2007-

Ohio-2878, ¶ 9, citing Frysinger v. Leech, 32 Ohio St.3d 38, 42 (1987). The

plaintiff can file a written notice of dismissal before the trial begins, the plaintiff

can file a stipulation of dismissal signed by all the parties, or the plaintiff can

request that the trial court dismiss the case. Id.; Civ. R. 41(A). Specifically,

Civ.R. 41(A)(1) states that a plaintiff may dismiss all claims asserted against the

defendant without an order of the trial court by:

       (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;


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       (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.

       {¶13} In the present case, Guardian filed a notice voluntarily dismissing its

complaint without prejudice pursuant to Civ.R. 41(A). (Doc. No. 53). “Civ. R.

41(A) allows the voluntary dismissal of an action by the plaintiff at any time

before the commencement of trial.” State ex. rel. Avellone v. Bd. of Cty. Commrs.

Of Lake Cty., 60 Ohio App.3d 127, 128 (11th Dist.1989). Guardian filed its

motion after this Court remanded the case following Portentoso’s appeal.

Consequently, Guardian did not comply with Civ.R. 41(A)(1)(a) by filing its

notice of dismissal prior to the commencement of trial, and the trial court should

not consider such an inappropriately filed notice of dismissal. See id. Guardian’s

notice of dismissal was not signed by Portentoso, so Guardian also did not comply

with Civ.R. 41(A)(1)(b), which requires the stipulation of dismissal to be signed

by all the parties who have appeared in the case. Thus, Guardian’s notice of

dismissal did not comply with either section of Civ.R. 41(A)(1). We cannot find

that the trial court abused its discretion by striking the notice of dismissal from the

record on that basis.


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       {¶14} Civ.R. 41(A)(2) states that, “[e]xcept 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.”

Here, Guardian did not request that the trial court dismiss its case.         Rather,

Guardian filed a document titled “Dismissal Without Prejudice,” stating, “[n]ow

comes plaintiff * * * pursuant to Ohio Civil Rule 41(A), who does hereby dismiss

its Complaint against Defendant without prejudice, at Plaintiff’s costs.” (Doc. No.

53). We cannot find that the trial court erred in determining Guardian had filed a

notice of dismissal pursuant to Civ.R. 41(A)(1) rather than a request for dismissal

pursuant to Civ.R. 41(A)(2) since Guardian failed to ask that the trial court issue

an order dismissing the case. (Id.). Instead, Guardian informed Portentoso and

the trial court that it was dismissing its complaint. (Doc. No. 53). Civ.R. 41(A)(2)

requires the plaintiff to seek the trial court’s approval before dismissing the

complaint. We cannot find that the trial court abused its discretion by striking

Guardian’s notice of dismissal rather than treating it as a motion pursuant to

Civ.R. 41(A)(2), given that Guardian failed to comply with the rule.

       {¶15} Portentoso argues that even if Guardian’s notice of dismissal did not

comply with Civ.R. 41(A), the trial court abused its discretion by failing to grant

the motion pursuant to Civ.R. 41(B)(1). Civ.R. 41(B)(1) states, “[w]here the

plaintiff fails to prosecute, or comply with these rules or any court order, the court


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upon motion of a defendant or on its own motion may, after notice to the

plaintiff’s counsel, dismiss an action or claim.”       A dismissal for lack of

prosecution is a harsh remedy requiring prior notice to the plaintiff. Stanek v.

Somerville, 8th Dist. No. 78473, *2 (July 5, 2001). As a result, “such a dismissal

will be upheld only if the conduct of a party or his counsel is sufficiently

‘negligent, irresponsible, contumacious, or dilatory’ as to provide substantial

grounds for the dismissal.” First Hungarian Benefit of Barberton v. Ohio Liquor

Control Comm., 10th Dist. No. 05AP-625, 2005-Ohio-6621, ¶ 8, quoting Tokles &

Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 632 (1992).

      {¶16} Here, Portentoso did not file a motion pursuant to Civ.R. 41(B)(1)

requesting that the trial court dismiss the case because Guardian had failed to

prosecute it. Consequently, the trial court could only have acted on its own

motion. The record lacks any evidence that Guardian failed to properly pursue its

case, that Guardian’s actions were “negligent, irresponsible, contumacious, or

dilatory,” or that the trial court had given Guardian notice that its case would be

dismissed for lack of prosecution. Tokles & Son at 632. Thus, we cannot find that

the trial court abused its discretion by failing to, by its own motion, find that

Guardian did not prosecute its case.

      {¶17} Portentoso’s second assignment of error is, therefore, overruled.




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                            Assignment of Error No. I

       The trial court erred in failing to follow the mandate of the court
       of appeals on remand.

       {¶18} In his first assignment of error, Portentoso argues the trial court erred

by not following this Court’s mandate on remand. Portentoso contends that, by

awarding Guardian $2,472.15, the trial court must have reduced Guardian’s award

by $14,973.32 from $17,445.47. Portentoso argues the trial court’s monetary

jurisdiction cannot exceed $15,000, so the trial court erred by calculating the

damage award based on $17,445.47.

       {¶19} The doctrine of the law of the case “provides that the decision of a

reviewing court in a case remains the law of that case on the legal questions

involved for all subsequent proceedings * * *.” Nolan v. Nolan, 11 Ohio St.3d 1,

3 (1984), citing Gohman v. St. Bernard, 111 Ohio St. 726, 230 (1924), reversed on

other grounds.    The doctrine is a rule of practice and not a binding rule of

substantive law. Nolan at 3. The Supreme Court of Ohio has stated that “the rule

is necessary to ensure consistency of results in a case, to avoid endless litigation

by settling the issues, and to preserve the structure of superior and inferior courts

as designed by the Ohio Constitution.”           Id.   Consequently, the trial court is

required to follow the mandate of the reviewing court and lacks authority to

extend or vary that mandate. Id. at 3-4.



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      {¶20} In the present case, this Court instructed the trial court to award

Guardian any money Portentoso owed as a result of his 2005 employment, but

held the trial court could not award Guardian any money it claimed was owed as a

result of Portentoso’s 2004 employment. Guardian Alarm Co. v. Portentoso, 3d

Dist. No. 13-10-54, 2011-Ohio-5443, at ¶ 27. This Court specifically stated:

      we reverse the judgment of the trial court as it pertains to the

      repayment of any money relating to appellant’s employment with

      appellee prior to January 1, 2005, we affirm the decision of the trial

      court as it pertains to the repayment of any money owed as a result

      of appellant’s employment with appellee during 2005, and we

      remand for further proceedings consistent with this opinion.

Id. On remand, the trial court found that Guardian had paid Portentoso $2,472.15

in excess of his commission during his 2005 employment. (Doc. No. 54). The

trial court then awarded Guardian that amount in damages. (Id.).

      {¶21} R.C. 1901.17 governs the monetary jurisdiction of municipal courts.

The statute states, “[a] municipal court shall have original jurisdiction only in

those cases in which the amount claimed by any party, or the appraised value of

the personal property sought to be recovered, does not exceed fifteen thousand

dollars * * *.”   R.C. 1901.17.    Here, Guardian’s amended complaint sought

$14,999.00, which is within the monetary jurisdiction of the municipal court.


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(Doc. No. 18); R.C. 1901.17.       On remand, the trial court awarded Guardian

$2,472.15, which is also within its monetary jurisdiction. (Doc. No. 54).

       {¶22} Additionally, the trial court’s November 24, 2010 judgment entry

awarding Guardian $15,000 does not specify how much of the award was

composed of draws the trial court had found exceeded Portentoso’s commission

from his 2004 employment and how much was from his 2005 employment. (Doc.

No. 35). Thus, there is no evidence that the trial court’s original $15,000 award

was comprised of $14,973.32 from Portentoso’s 2004 employment and $26.68

from his 2005 employment as he contends. Furthermore, the trial court’s award of

$2,472.15 to Guardian is clearly consistent with this Court’s opinion where we

affirmed the trial court’s finding that Portentoso had received excessive draws in

that amount and held that Guardian was entitled to repayment. Guardian Alarm at

¶ 27. We cannot find that the trial court’s award to Guardian was contrary to this

Court’s mandate on remand.

       {¶23} Portentoso’s first assignment of error is, therefore, overruled.

       {¶24} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW, P.J., concurs .
ROGERS, J., concurs in Judgment Only.

/jlr

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