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Sayre v. Valley Ford Truck Sales8/17/2000
trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by the defendant or (b) by 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 when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim.
This court has repeatedly held that a workers' compensation claimant may dismiss his or her action pursuant to Civ.R. 41, notwithstanding the pendency of an appeal by the employer. See Schade v. Adm. Bur. Workers' Comp. (March 13, 1997), Cuyahoga App. No. 70950, unreported; Rogers v. Ford Motor Co. (Aug. 18, 1994), Cuyahoga App. No. 66188, unreported.
Nonetheless, in Hensley v. Henry (1980), 61 Ohio St.2d 277, syllabus, the court held as follows:
Unless plaintiff's Civ.R. 41(A)(1)(a) notice of dismissal operates as an adjudication upon the merits under Civ.R. 41(A)(1), it is not a final judgment, order or proceeding, within the meaning of Civ.R. 60(B).
In this matter, Sayre filed a notice of voluntary dismissal without prejudice pursuant to Civ.R. 41(A)(1)(a). It is undisputed that Sayre had not previously dismissed the action. Therefore, Sayre's voluntary dismissal was not an adjudication on the merits. Consequently, it cannot constitute a final order for Civ.R. 60(B) purposes. Id.; see, also, Barnes v. Anderson (1984), 17 Ohio App.3d 142, 144; Pisani v. Pisani (Sept. 24, 1998), Cuyahoga App. No. 74373, unreported; Stafford v. Hetman (June 4, 1998) Cuyahoga App. No. 72825, unreported. The trial court therefore erred in vacating the voluntary dismissal without prejudice.
This assignment of error is well-taken. The judgment of the trial court which vacated Sayre's voluntary dismissal without prejudice is hereby reversed.
Valley Ford's first assignment of error states:
THE TRIAL COURT ERRED IN NOT GRANTING VALLEY FORD'S MOTION FOR SUMMARY JUDGMENT BECAUSE MR. SAYRE FAILED TO REFILE HIS COMPLAINT WITHIN THE ONE YEAR TIME PERIOD MANDATED BY THE SAVINGS STATUTE.
Valley Ford next asserts that it is entitled to summary judgment on Sayre's claim in this action since Sayre did not refile his complaint within the statute of limitations or the time allotted pursuant to the savings statute, R.C. 2305.19. Sayre argues that the evidence of record clearly demonstrates that Valley Ford is equitably estopped from asserting the statute of limitations defense due to its prior conduct in this matter.
This Court has ruled that Civ.R. 41(A) voluntary dismissals apply to all workers' compensation appeals, and the employee may voluntarily dismiss his complaint and refile it within the savings statute. Rogers v. Ford Motor Co. (Aug. 18, 1994), Cuyahga App. No. 66118, unreported. However,
If an employee does not refile his complaint within the year's time, he can no longer prove his entitlement to participate in the workers' compensation system, as is his burden on appeal. Zuljevic, supra at 118. In that instance, the employee's failure to refile his complaint warrants judgment for the employer in the same fashion that a defendant's failure to answer a complaint warrants default judgment for the plaintiff. Rice v. Stouffer Foods Corp. (Nov. 6, 1997), Cuyahoga App. No 72515, unreported.
Further, in Neal v. Maniglia (April 6, 2000), Cuyahoga App. No. 75566, unreported, this Court determined that even if the parties agreed to waive the prohibition against repeated use of the savings s
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