[Cite as Sipes v. Sipes, 2012-Ohio-3215.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

CYNTHIA E. SIPES                               :
                                               :
                 Plaintiff-Appellee            :
                                               :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :       NUNC PRO TUNC
                                               :
DAVID L. SIPES                                 :       Filed July 13, 2012
                                               :
                                               :
                 Defendant-Appellant           :       CASE NO. 2011-CA-00101


        This cause comes before us on the issuance of an opinion and judgment entry

nunc pro tunc to correct a scrivener’s error for misidentification of the appellee to correct

the middle initial to “E”.

                 IT IS SO ORDERED.




                                                   _________________________________
                                                   HON. W. SCOTT GWIN


                                                   _________________________________
                                                   HON. SHEILA G. FARMER


                                                   _________________________________
                                                   HON. JULIE A. EDWARDS
                                 COURT OF APPEALS
                              RICHLAND COUNTY, OHIO
                             FIFTH APPELLATE DISTRICT

                                                  JUDGES:
CYNTHIA E. SIPES                          :       Hon. W. Scott Gwin, P.J.
                                          :       Hon. Sheila G. Farmer, J.
                     Plaintiff-Appellee   :       Hon. Julie A. Edwards, J.
                                          :
-vs-                                      :
                                          :       Case No. 2011-CA-101
DAVID L. SIPES                            :
                                          :
                 Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                      Civil appeal from the Richland County Court
                                              of Common Pleas, Domestic Relations
                                              Division, Case No. 2008-DIV-1058

JUDGMENT:                                     Reversed




DATE OF JUDGMENT ENTRY:                       July 13, 2012




APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

BRENT L. ENGLISH                              CHARLES D LYNCH
1500 West Third Street                        Six West Third Street, #200
Cleveland, OH 44113-1422                      Mansfield, OH 44902
[Cite as Sipes v. Sipes, 2012-Ohio-3215.]


Gwin, P.J.

        {¶1}     Defendant-appellant David L. Sipes appeals a judgment of the Court of

Common Pleas, Domestic Relations Division, of Richland County, Ohio, entered in favor

of plaintiff-appellee Cynthia A. Sipes. Appellant assigns three errors to the trial court:

        {¶2}     “I. THE TRIAL COURT COMMITTED ERROR IN FINDING THAT

HUSBAND’S VOLUNTARY NOTICE OF DISMISSAL OF HIS DIVORCE COMPLAINT

PURSUANT TO CIVIL RULE 41 (A)(1)(a) WAS AN ADJUDICATION ON THE MERITS.

        {¶3}     “II. THE TRIAL COURT COMMITTED ERROR IN APPLYING CIVIL RULE

60 (b) TO A VOLUNTARY NOTICE OF DISMISSAL OF HUSBAND’S DIVORCE

COMPLAINT FILED PURSUANT TO CIVIL RULE 41 (A)(1)(a) WHEN THE DISMISSAL

WAS NOT AN ADJUDICATION ON THE MERITS.

        {¶4}     “III. THE TRIAL COURT COMMITTED ERROR IN SUA SPONTE

REINSTATING HUSBAND’S DIVORCE COMPLAINT WHICH HUSBAND HAD

VOLUNTARILY DISMISSED PURSUANT TO CIVIL RULE 41 (A)(1)(a) WHEN THERE

WAS NO MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIVIL RULE 60

(B) FILED BY WIFE.”

        {¶5}     In its judgment entry of September 30, 2011, the trial court set out the

procedural history in this case. On August 8, 2010, appellant filed a complaint for

divorce under this case number.             Appellee filed an answer and counterclaim on

September 30, 2010. While the divorce action was pending, appellee moved from the

state of Ohio. Prior to trial the parties agreed to jointly dismiss their respective actions

and appellant agreed to re-file a complaint for divorce. The original divorce case, Case

No. 2008-DIV-1058, was dismissed on January 12, 2010, and the complaint was re-filed
Richland County, Case No. 2011-CA-101                                                    3


the same day, and given the number 2010DIV-0037. The court found appellee did not

file a counterclaim in the second action because the counsel she had then believed

there was a jurisdictional bar to doing so because appellee was not an Ohio resident.

       {¶6}   The second divorce case was set for trial on November 3 and 4, 2010. On

the first day of trial, appellant voluntarily dismissed his complaint. The court found this

left appellee without legal recourse to file an action in Ohio that would vest the court

with subject matter jurisdiction.

       {¶7}   Appellee filed a motion pursuant to Civ. R. 60 (B) in the present case,

2008-DIV-1058. The trial court found the dismissal of Case Number 2008-DIV-1058

was not adjudication on the merits, and thus Civ. R. 60 (B) did not apply. The trial court

further found the dismissal of 2010DIV-0037 was an adjudication on the merits under

“two dismissal rule”. The court found for this reason Civ. R. 60 (B) would lie against the

dismissal in the 2010 case, and the court reinstated the second complaint.

                                                 I.

       {¶8}   In his first assignment of error, appellant argues the court committed error

in finding his notice of dismissal filed in the second case was adjudication on the merits.

We agree.

       {¶9}   Civ. R. 41 states in pertinent part:

       {¶10} Voluntary dismissal: effect thereof

       {¶11} (1) By plaintiff; by stipulation.

       {¶12} * * * [A] plaintiff, without order of court, may dismiss all claims

       asserted by that plaintiff against a defendant by doing either of the

       following:
Richland County, Case No. 2011-CA-101                                                   4


      {¶13} (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;

      {¶14} (b) filing a stipulation of dismissal signed by all parties who have

      appeared in the action.

      {¶15} 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.

      {¶16} (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. * * *

      {¶17} There are three ways a plaintiff can dismiss a complaint under Civ. R. 41

(A). First, a plaintiff may file a notice of dismissal, which divests the trial court from

jurisdiction if there are no pending counterclaims pending for independent adjudication.

Civ. R. 41(A)(1)(a), Thorton v. Montville Plastics & Rubber, Inc., 11th District No. 2006-

G-2744,2007-Ohio-3475, ¶ 16.

      {¶18} The second way a plaintiff can dismiss a case is by filing a stipulation

signed by all parties pursuant to Civ. R. 41 (A)(1)(B). The dismissal acts as a voluntary

dismissal of each party’s claims.Civ.R. 41 (A)(1)(b), Feckner v. Donley’s, Inc., 8th

District App. No. 888926, 2007-Ohio-5335 ¶ 20.
Richland County, Case No. 2011-CA-101                                                 5


      {¶19} The third way a plaintiff may dismiss a case is by motion to the court

pursuant to Civ. R. 41 (A)(2). Under this scenario, there is no notice of dismissal, but

rather a judgment entry from the court.

      {¶20} The double dismissal rule applies only when both dismissals were notice

dismissals under Civ. R. 41 (A)(1)(a). Dismissals pursuant to Civ.R. 41(A)(1)(b) and (c)

do not trigger the double dismissal rule. Olynyk v. Scoles, 114 Ohio St. 3d 56, 2007-

Ohio-2878, 868 N.E. 2d 254, ¶31.

      {¶21} Because the first dismissal in the 2008 case was pursuant to a court order

rather than a voluntary notice of dismissal, the two-dismissal rule does not apply.

      {¶22} The first assignment of error is sustained.

                                               II.

      {¶23} In his second assignment of error, appellant argues the court erred in

applying Civ. R. 60 (B) to the second action because the dismissal was not an

adjudication on the merits.    We agree. Appellant’s dismissal of 2010DIV-0037 was

neither on the merits nor the second dismissal pursuant to Civ. R. 41(A)(1)(a). As the

trial court correctly noted, Civ. R. 60 (B) cannot be invoked to revive an action which

has not been adjudicated on the merits. Hensley, Administrator v. Henry, 61 Ohio St.

2d 277, 400 N.E. 2d 1353 (1980), citations deleted. See also, Thorton, supra.

      {¶24} The second assignment of error is sustained.

                                               III.

      {¶25} In his third assignment of error, appellant argues the trial court committed

error in sua sponte reinstating the divorce complaint pursuant to Civ. R. 60 (B) because
Richland County, Case No. 2011-CA-101                                                6


the motion was filed in the 2008 case but was not filed in the 2010 case. We agree with

appellant, and find the court had no jurisdiction to reinstitute the second case.

       {¶26} The third assignment of error is sustained.

       {¶27} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, of Richland County, Ohio, is reversed.

By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur



                                               _________________________________
                                               HON. W. SCOTT GWIN


                                               _________________________________
                                               HON. SHEILA G. FARMER


                                               _________________________________
                                               HON. JULIE A. EDWARDS


WSG:clw 0607
[Cite as Sipes v. Sipes, 2012-Ohio-3215.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


CYNTHIA E. SIPES                                  :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
DAVID L. SIPES                                    :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011-CA-101




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Domestic Relations Division, of Richland County, Ohio, is

reversed. Costs to appellee.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. SHEILA G. FARMER


                                                      _________________________________
                                                      HON. JULIE A. EDWARDS
