COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73105 MICHAEL RINICELLA, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION ANN MARIE RUBINO, ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-286959 JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MARC N. SILBERMAN (#0010019) 24700 Chagrin Blvd., #200 Beachwood, Ohio 44122 For Defendants-Appellees, CLIFFORD C. MASCH (#0015737) Children's Hospital Medical JAMES L. MALONE (#0019178) Center of Akron, R. Daryl Reminger & Reminger Co., Steiner, D.O., Donna Abbott, L.P.A. R.N., and Barbara Duvall, R.N.: The 113 St. Clair Building Cleveland, Ohio 44114 For Defendant-Appellee, ORVILLE L. REED, III Summit County Children's (#0023522) Services Board: Buckingham, Doolittle & Burroughs 50 S. Main Street Akron, Ohio 44309 -ii- For Defendant-Appellee, GEORGE C. COAKLEY (#0020419) Dr. Jeffrey L. Chernin: BRIAN D. SULLIVAN (#0063536) Reminger & Reminger Co., L.P.A. The 113 St. Clair Building Cleveland, Ohio 44114 For Defendant-Appellee, DAVID M. BENJAMIN (#0033026) The City of Aurora: 170 Chillicothe Road P.O. Box 511 Aurora, Ohio 44202 SPELLACY, J.: Plaintiffs-appellants Michael Rinicella, Samantha Rinicella, and Danielle Rinicella ( appellants ) appeal from the trial court's order granting defendant-appellee City of Aurora's motion to dismiss. Appellants also appeal from the trial court's orders granting summary judgment in favor of defendants-appellees Children's Hospital Medical Center of Akron ( Children's -2- Hospital ), R. Daryl Steiner, D.O., Donna Abbott, R.N., Barbara Duvall, R.N., Dr. Jeffrey Chernin, and Summit County Children Services Board ( SCCSB ). Finding that this court lacks jurisdiction because appellants did not file their notice of appeal within the time limit prescribed by App.R. 4(A), appellants' appeal is dismissed. On March 28, 1995, appellants filed a complaint against defendants-appellees Ann Marie Rubino, Carl Rubino, Children's Hospital, Dr. Steiner, Nurse Abbott, Nurse Duvall, SCCSB, Dr. Chernin, City of Aurora ( Aurora ), and several other defendants. Appellants' complaint was based on damages allegedly suffered as a result of false allegations that Michael Rinicella sexually abused his daughter, Samantha. On April 19, 1996, the trial court granted Aurora's motion to dismiss. The trial court granted SCCSB's motion for summary judgment on October 21, 1996. On October 28, 1996, the trial court granted summary judgment in favor of Children's Hospital, Dr. Steiner, Nurse Abbott, and Nurse Duvall. On November 22, 1996, the trial court granted Dr. Chernin's motion for summary judgment. On November 14, 1996, the trial court denied the motion for summary judgment filed by Ann and Carl Rubino. The other defendants were granted summary judgment or otherwise dismissed. On July 23, 1997, appellants' claims against the Rubinos were settled and dismissed. At that time, the only outstanding claims in the instant case were the Rubinos' crossclaims against their co- defendants. -3- The Rubinos filed a notice of the voluntary dismissal of their crossclaims on July 24, 1997. As noted above, the Rubinos' crossclaims were the last claims pending before the trial court (all of appellants' claims had previously been disposed). On August 1, 1997, the trial court acknowledged this dismissal in a journal entry. This journal entry was filed with the clerk on August 4, 1997. On September 2, 1997, the appellants filed their notice of appeal. App.R. 4(A) provides: A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure. Appellants argue that their notice of appeal was filed on time because the thirty day period of App.R. 4(A) should be applied as of the date the journal entry acknowledging the voluntary dismissal was filed by the trial court. Appellees assert that the thirty day period should be counted from the date the notice of voluntary dismissal was filed, thereby rendering appellants' appeal untimely. It is well-established that a voluntary dismissal without prejudice pursuant to Civ.R. 41(A) is effective as of the date of the filing, not the date the trial court acknowledges the dismissal in a journal entry. Recently, in Payton v. Rehberg (Apr. 14, 1997), Cuyahoga App. No. 70964, unreported, this court stated: Civ.R. 41(A)(1) contemplates unilateral action on the part of a plaintiff. Clay Hyder Trucking Lines, Inc. v. Riley (1984), 16 Ohio -4- App.3d 224, 225. Dismissals pursuant to Civ.R. 41(A)(1) are fully and completely effectuated upon filing of the notice of voluntary dismissal by the plaintiff. In other words, the mere filing of the notice of dismissal by the plaintiff automatically terminates the case without intervention by the court. No court approval is necessary. Purdue v. Handelman (1980), 68 Ohio App.2d 240. See, also, Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 126 ("Under Civ.R. 41(A)(1), a plaintiff may dismiss an action without order of the court * * *."); Andrews v. Sajar Plastics, Inc. (1994), 98 Ohio App.3d 61, 66 ("A Civ.R. 41(A)(1)(a) dismissal is self-executing and gives a plaintiff an absolute right to terminate his or her cause of action voluntarily and unilaterally at any time prior to the commencement of trial without order of the court * * *."); Standard Oil v. Grice (1975), 46 Ohio App.2d 97, 101 ("Either party has an absolute right, regardless of motives, to voluntarily terminate its cause of action * * *."). In Payton, the plaintiff filed a notice of voluntary dismissal on September 9, 1993. The trial court did not acknowledge the dismissal in a journal entry until December 13, 1993. The plaintiff refiled her action on October 28, 1994. This court held that the one year period to refile under the savings statute (R.C. 2305.19) expired on September 9, 1994, one year from the date the notice of voluntary dismissal was filed. We believe the reasoning of Payton applies to the issue at bar. In the instant case, the entry of the judgment or order appellants are appealing from is the notice of dismissal filed on July 24, 1997. The subsequent acknowledgment by the trial court was merely a perfunctory act, a nullity with no legal effect. Appellants' position, that the thirty day period of App.R. 4(A) should be applied as of the date the trial court acknowledges -5- the dismissal in a journal entry, would lead to ambiguous and sometimes indefinite windows to appeal. In Payton, for example, the trial court acknowledged the voluntary dismissal of the case over three months after the notice of voluntary dismissal was filed. Pursuant to appellants' argument, an appeal could have been filed over four months after that case was dismissed. Moreover, because a notice of voluntary dismissal is self-executing, trial courts do not acknowledge every voluntary dismissal with a journal entry. Therefore, we now hold that the thirty day period to file a notice of appeal from a voluntary dismissal runs from the date the notice of voluntary dismissal is filed. Accordingly, we find that appellants' appeal was not timely filed. Appeal dismissed. -6- It is ordered that appellees recover of appellants their 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. ANN DYKE, P.J. and JOHN T. PATTON, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the -7- journalization of this court's announcement of decision by the .