COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68485 CHARLES R. JELM : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION HARRY F. MALZEKE, ET AL. : : : : Defendant-Appellants: : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 30, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-180536 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: THOMAS C. SCHRADER McDonald, Hopkins, Burke & Haber 2100 Bank One Center 600 Superior Avenue Cleveland, Ohio 44114 For Defendant-Appellants: HARRY F. MALZEKE, Pro Se 2259 Mt. Vernon Boulevard Cleveland, Ohio 44112 (Continued) ii (Continuation) For Chrysler First Discount: LEONARD J. HAASE 35104 Euclid Avenue Suite 301 Willoughby, Ohio 44094 For Cuyahoga County Treasurer: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor 8th Floor - Justice Center 1200 Ontario Street RICHARD J. AMBROSE McDonald, Hopkins, Burke & Haber 2100 Bank One Center 600 Superior Avenue, E. Cleveland, Ohio 44114 For Ohio Department of GREGORY S. SEVERANCE Taxation: Revenue Recovery Section 30 East Broad Street Columbus, Ohio 43266-0404 - 2 - O'DONNELL, J.: Harry and Ernestine Malzeke, judgment debtors, appeal the December 30, 1994 decision of the court denying their motion to dismiss the case with prejudice and instead journalizing the joint notice of dismissal without prejudice of creditors Charles Jelm, Chrysler First Discount of Ohio, and the Cuyahoga County Treasurer on a foreclosure action filed by Jelm to enforce a $58,699.08 judgment rendered against Harry Malzeke in connection with a suit concerning sale of various gas and oil interests. This appeal represents the third time the matter has been presented to this court for review. Initially, we affirmed the original judgment against Harry Malzeke in case No. 58093 on March 7, 1991. Next, in case No. 61765 our court considered an appeal which involved a series of rulings made by Judge Joseph McManamon in a foreclosure action instituted by Jelm to collect the judgment, all made while the Malzekes filed an action seeking protection of the United States Bankruptcy Court. We determined that, "all rulings issued by the trial court subsequent to Mr. Malzeke's filing of bankruptcy are void. ***", and we dismissed the appeal. Now, since the bankruptcy stay has been lifted, Judge Pat Kelly has denied the Malzekes' motion to dismiss the case with prejudice and instead dismissed the case without prejudice in accordance with a notice of dismissal filed by Charles Jelm on - 3 - September 28, 1993 and a subsequent notice of dismissal filed by Jelm, and Chrysler and the Cuyahoga County Treasurer dismissing their respective cross-claims on October 29, 1993. The Malzekes appeal claiming that the "two dismissal rule" should apply and the case should be dismissed with prejudice. Four errors have been assigned for our review. The first assignment of error states: IT WAS PREJUDICIAL ERROR FOR THE COMMON PLEAS COURT TO ACCEPT PLAINTIFF'S NOTICE OF DISMISSAL WITHOUT PREJUDICE UNDER RULE 41(A)(1) OR ORCP: a) WHILE CASE WAS HELD ON INTERLOCUTORY APPEAL FROM COMMON PLEAS JUDGMENT IN FAVOR OF DEFENDANTS, AND b) WHERE PLAINTIFF DID NOT OBTAIN PRIOR AGREEMENT (OR STIPULATION) OF ALL PARTIES TO THE LITIGATION. Here, the Malzekes cite Civ. R. 41(A)(1) and urge that since neither signed the October 29, 1993 notice of dismissal, the court erred in accepting it and dismissing the case without prejudice. Civ. R. 41(A)(1) states in part: *** an action may be dismissed by the plaintiff without order of the court (a) by filing a notice of dismissal at any time before the commencement of trial *** or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. The Malzekes believe because the case had proceeded to "trial", before Judge McManamon, the provisions of Civ. R. 41(A)(1)(b) require the parties' signatures on the dismissal entry. This position is correct, but for the fact that our court voided all rulings of Judge McManamon. Hence, the provisions of Civ. R. 41(A)(1)(a) permitted the voluntary dismissal which Judge - 4 - Kelly properly journalized. We find no merit to this assignment of error. The second assignment of error states: THE LOWER COURT IS IN ERROR IN STATING THAT THE OHIO COURT OF APPEALS "HELD" THAT A COMMON PLEAS JUDGMENT IN FAVOR OF DEFENDANTS IS VOID, WHEN, IN FACT, THE OHIO COURT OF APPEALS DISMISSED PLAINTIFF'S APPEAL ON THE GROUND THAT THE COURT OF APPEALS LACKED JURISDICTION TO RULE IN VIEW OF THE AUTOMATIC STAY OF SECTION 362 OF THE U.S. BANKRUPTCY CODE, AND THEREFORE, RETURNED THE CASE TO COMMON PLEAS ON INTERLOCUTORY APPEAL UNTIL SUCH TIME AS THE AUTOMATIC STAY WAS LIFTED. The Malzekes challenge Judge Kelly's interpretation of this court's ruling in case No. 61765 claiming that our court did not take jurisdiction, did not rule on the merits of the case, and urging that Judge Kelly abused his discretion by nullifying the judgment of Judge McManamon which the Malzekes believe is res judicata. We find no merit to this position. Because our court voided the rulings of Judge McManamon in accordance with Donovan v. Sunmark (1983), 10 Ohio App.3d 216, we declined to rule on the other assignments of error presented in the earlier appeal. Upon independent review of our earlier decision and Judge Kelly's action, our court took jurisdiction over the matter, ruled on the assignment of error, voided all rulings made while the bankruptcy stay was in effect and dismissed the appeal. We find no merit to this assignment of error and it is overruled. The third assignment of error states: - 5 - IT WAS PREJUDICIAL ERROR FOR THE COMMON PLEAS COURT TO ACCEPT PLAINTIFF'S NOTICE OF DISMISSAL WITHOUT PREJUDICE, WHEN PLAINTIFF HAD ACCOMPLISHED TWO DISMISSALS AND CAME UNDER THE "ADJUDICATION ON THE MERITS" PROVISION OF RULE 41(A)(1)(b) ORCP. Here, the Malzekes urge that having two notices of dismissal filed, the second of those filed October 29, 1993, should have been a dismissal with prejudice pursuant to Civ. R. 41(A)(1), which reads in relevant part: *** 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 language applies only to voluntary dismissals filed by a plaintiff or by all the parties upon stipulation. See, Litton v. Joslin (1985), 22 Ohio App. 3d 108. Since our court voided the order of Judge McManamon granting the Malzekes' motion to dismiss, that order has no further force or effect. Romito v. Maxwell (1967), 10 Ohio St. 2d 266, 267. We then consider the voluntary dismissals filed on September 28, 1993 and October 29, 1993. The notice filed on September 28, 1993 named only Jelm and dismissed only Jelm's claim upon filing; it required no court entry to terminate Jelm's case. See State ex rel. Hunt v. Thompson (1992), 63 Ohio St. 3d 182; State ex rel. Richard v. Cuyahoga Cty. Commrs. (1995), 100 Ohio App. 3d 592. - 6 - Thereafter, only the Treasurer and Chrysler's cross-claims remained pending. When the second notice voluntarily dismissed these cross-claims, the action terminated. Conley v. Jenkins (1991), 77 Ohio App. 3d 511, 517. Jelm did not dismiss any claim on October 29, 1993, because all of those claims had been voluntarily dismissed on September 28, 1993. Therefore, we conclude that this assignment of error has no merit and find that the trial court properly entered the voluntary dismissal without prejudice. This assignment of error is also overruled. The fourth assignment of error states: IT WAS AN ABUSE OF JUDICIAL DISCRETION FOR THE LOWER COURT TO ACCEPT THE PLAINTIFF'S NOTICE OF DISMISSAL EVEN UNDER RULE 4l(A)(2) OF ORCP, WHICH PROVIDES FOR DISMISSAL AT THE DISCRETION OF THE COURT UNDER SUCH TERMS AND CONDITIONS AS THE COURT DEEMS PROPER, WHERE SAID DISMISSAL WOULD UNFAIRLY AFFECT THE DEFENDANTS AND BE PREJUDICIAL TO THEIR POSITION AND TITLE, AND WHERE THE COURT IMPOSED NO TERMS AND CONDITIONS UPON THE PLAINTIFF. Malzekes argue that the trial court abused its discretion by not dismissing the case with prejudice to avoid further efforts by Jelm to attempt to foreclose on Malzekes' tenancy by the entireties deed and hence continue to harass the appellants. While we recognize the argument advanced here, we are nevertheless bound to follow the law regarding exercise of discretion by a trial judge. In State v. Adams (1980), 62 Ohio St.2d 151, the court defined the term abuse of discretion. It "connotes more than an error of law or judgment; it implies that - 7 - the court's attitude is unreasonable, arbitrary, or unconscionable." (Citations omitted.) We do not find the trial court in this case abused its discretion. Accordingly, this assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 8 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. DAVID T. MATIA, J., CONCURS; SARA J. HARPER, P.J., CONCURS IN JUDGMENT ONLY JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- .