[Cite as State ex rel. Fifth Third Mtge. Co. v. Russo, 129 Ohio St.3d 250, 2011-Ohio-3177.] 

THE STATE EX REL. FIFTH THIRD MORTGAGE COMPANY, APPELLEE AND 

CROSS-APPELLANT, v. RUSSO, JUDGE, APPELLANT AND CROSS-APPELLEE. 

[Cite as State ex rel. Fifth Third Mtge. Co. v. Russo, 

129 Ohio St.3d 250, 2011-Ohio-3177.] 

Mandamus — Prohibition — Civ.R. 41(A) voluntary dismissal — Writ of 

prohibition will issue to prevent judge from proceeding in case that was 

voluntarily dismissed — Mandamus will issue to compel judge to vacate 

order striking plaintiff’s notice of voluntary dismissal — First voluntary 

dismissal forecloses any further action in dismissed case except for 

collateral matters such as contempt — Prohibition will not lie to prevent 

judge from proceeding on issue of contempt. 

(No. 2010-1579 — Submitted May 10, 2011 — Decided July 6, 2011.) 

APPEAL and CROSS-APPEAL from the Court of Appeals for Cuyahoga County, 

Nos. 94816, 94817, and 94818, 2010-Ohio-3734. 

__________________ 

Per Curiam.

{¶ 1} This is an appeal from a judgment granting writs of mandamus and 

prohibition against appellant and cross-appellee, Cuyahoga County Court of 

Common Pleas Judge Nancy Margaret Russo. The writ of mandamus directed 

Judge Russo to vacate the portion of her order striking the notice of appellee and 

cross-appellant, Fifth Third Mortgage Company, voluntarily dismissing its 

foreclosure action without prejudice. The writ of prohibition ordered Judge Russo 

not to proceed on Fifth Third’s dismissed claim. In addition, Fifth Third crossappealed from the portion of the judgment denying a writ of prohibition to 

prevent Judge Russo from conducting a contempt proceeding in the dismissed 
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case. Because the court of appeals ruled properly in the underlying writ case, we 

affirm the judgment. 

Facts 

Fifth Third Mtge. Co. v. Markus, Cuyahoga C.P. No. CV 09 704576 

{¶ 2} Fifth Third operates and does business as a mortgage company and 

provides residential and commercial loans throughout Ohio. In September 2009, 

Fifth Third filed a foreclosure action against Steven Markus in the Cuyahoga 

County Court of Common Pleas. Judge Russo issued an order that provided: 

{¶ 3} “If a forbearance agreement or payment plan is in effect in this 

case, the court hereby orders [Fifth Third] to notify the court within seven days of 

said agreement or plan. Failure to comply will result in a show cause hearing.” 

{¶ 4} The parties in the foreclosure case then negotiated a loanmodification agreement in which the original mortgage amount was increased 

from $87,550 to $102,590.47 and other terms of the loan were changed. In the 

agreement, Markus acknowledged that the agreement did not release his 

obligations under the parties’ original note and security instrument: 

{¶ 5} “Nothing in this Agreement shall be understood or construed to be 

a satisfaction or release in whole or in part of the Note or Security Instrument. 

Except as otherwise specifically provided in this Agreement, the Note and 

Security Instrument will remain in full force and effect and unchanged, and 

Borrower(s) and Lender will be bound by, and comply with, all of the terms and 

provisions thereof, as amended by this Agreement.” 

{¶ 6} On March 2, 2010, Fifth Third filed a notice pursuant to Civ.R. 

41(A) voluntarily dismissing its complaint, without prejudice, in the foreclosure 

case. No counterclaims had been asserted, and no trial had been scheduled in the 

case. The next day, Markus filed notice of the parties’ loan-modification 

agreement with the court. 
January Term, 2011 

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{¶ 7} On March 4, 2010, Judge Russo issued an entry striking Fifth 

Third’s notice of dismissal because “[Civ.R.] 41(A) voluntary dismissal is not 

appropriate when the parties have reached a settlement.” In the same entry, Judge 

Russo ordered a hearing for Fifth Third and its attorney to “show cause why they 

should not be held in contempt for filing a notice of dismissal when the case in 

actuality was settled via loan modification.” Judge Russo later issued an entry 

clarifying her order by stating that “[u]sing Civ.R. 41(A) to reserve the right to 

refile the case on the original mortgage is improper.” 

Writ Cases 

{¶ 8} On March 15, 2010, Fifth Third filed complaints in the Court of 

Appeals for Cuyahoga County for writs of mandamus and prohibition and for an 

expedited alternative writ. Fifth Third requested a writ of mandamus to compel 

Judge Russo to vacate her March 4, 2010 order striking Fifth Third’s notice of 

voluntary dismissal without prejudice, a writ of prohibition to prevent Judge 

Russo from proceeding in the foreclosure case, including the show-cause 

contempt hearing, and an expedited alternative writ of prohibition to prevent 

Judge Russo from proceeding. The court of appeals consolidated the cases and 

granted an alternative writ staying further proceedings in the foreclosure case. 

{¶ 9} Judge Russo filed motions for summary judgment and to dissolve 

the alternative writ, and Fifth Third filed a response. The court of appeals 

subsequently granted a writ of mandamus to compel Judge Russo to vacate the 

portion of the March 4, 2010 entry striking Fifth Third’s notice of voluntary 

dismissal without prejudice. State ex rel. Fifth Third Mtge. Co. v. Russo, 

Cuyahoga App. Nos. 94816, 94817, and 94818, 2010-Ohio-3734, 2010 WL 

3171460. The court of appeals also granted a writ of prohibition to prevent Judge 

Russo from proceeding on the claim asserted by Fifth Third in the foreclosure 

case but denied a writ of prohibition to prevent the judge from proceeding on the 

show-cause contempt matter. Id. 
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{¶ 10} This cause is now before the court upon Judge Russo’s appeal as of 

right and Fifth Third’s cross-appeal. 

Analysis 

Appeal 

{¶ 11} In her appeal as of right, Judge Russo asserts that the court of 

appeals erred in granting writs of mandamus and prohibition to compel her to 

vacate her order striking Fifth Third’s notice of voluntary dismissal without 

prejudice in the foreclosure action and to prevent her from proceeding on Fifth 

Third’s claim in that case. 

{¶ 12} “If a lower court patently and unambiguously lacks jurisdiction to 

proceed in a cause, prohibition and mandamus will issue to prevent any future 

unauthorized exercise of jurisdiction and to correct the results of prior 

jurisdictionally unauthorized actions.” State ex rel. Mayer v. Henson, 97 Ohio 

St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12; State ex rel. Powell v. Markus, 

115 Ohio St.3d 219, 2007-Ohio-4793, 874 N.E.2d 775, ¶ 7. “[I]n general, when a 

trial court unconditionally dismisses a case or a case has been voluntarily 

dismissed under Civ.R. 41(A)(1), the trial court patently and unambiguously lacks 

jurisdiction to proceed, and a writ * * * will issue to prevent the exercise of 

jurisdiction.” State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 

771 N.E.2d 853, ¶ 22; State ex rel. Benbow v. Runyan, 99 Ohio St.3d 410, 2003-

Ohio-4127, 792 N.E.2d 1124, ¶ 6. 

{¶ 13} There are exceptions to this general rule, most notably that despite 

a voluntary dismissal, a trial court may consider collateral issues not related to the 

merits of the action, e.g., sanctions under Fed.R.Civ.P. 11, R.C. 2323.51, and 

Civ.R. 45(E), and criminal contempt. See Hummel at ¶ 23-24, and cases cited 

therein. 

{¶ 14} The portion of the foreclosure case at issue in Judge Russo’s 

appeal, however, directly relates to the merits of the foreclosure claim. That is, 
January Term, 2011 

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Judge Russo held that Fifth Third’s Civ.R. 41(A)(1)(a) notice voluntarily 

dismissing without prejudice the foreclosure case was improper because the claim 

had been effectively extinguished by the parties’ loan-modification agreement. 

{¶ 15} Civ.R. 41(A)(1)(a) provides that, subject to certain provisions that 

are inapplicable here, “a plaintiff, without order of court, may dismiss all claims 

asserted by that plaintiff against a defendant by * * * 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.” “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.” Civ.R. 41(A)(1). There was no counterclaim filed in the foreclosure 

case, and no trial had commenced. 

{¶ 16} “To interpret court rules, this court applies general principles of 

statutory construction. * * * Therefore, we must read undefined words or phrases 

in context and then construe them according to rules of grammar and common 

usage.” State ex rel. Law Office of Montgomery Cty. Public Defender v. 

Rosencrans, 111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 23. “If a 

court rule is unambiguous, we apply it as written.” Erwin v. Bryan, 125 Ohio 

St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 22. 

{¶ 17} The plain import of Civ.R. 41(A)(1) is that once a plaintiff 

voluntarily dismisses all claims against a defendant, the court is divested of 

jurisdiction over those claims. “It is axiomatic that such dismissal deprives the 

trial court of jurisdiction over the matter dismissed. After its voluntary dismissal, 

an action is treated as if it had never been commenced.” Zimmie v. Zimmie

(1984), 11 Ohio St.3d 94, 95, 11 OBR 396, 464 N.E.2d 142. The notice of 

voluntary dismissal is self-executing and completely terminates the possibility of 

further action on the merits of the case upon its mere filing, without the necessity 
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of court intervention. See, e.g., Selker & Furber v. Brightman (2000), 138 Ohio 

App.3d 710, 714, 742 N.E.2d 203; Payton v. Rehberg (1997), 119 Ohio App.3d 

183, 191-192, 694 N.E.2d 1379. 

{¶ 18} And under the unambiguous text of the rule, the dismissal is 

without prejudice “[u]nless otherwise stated in the notice of dismissal * * *, 

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.” Civ.R. 41(A)(1). 

Because the notice filed by Fifth Third in the underlying foreclosure case stated 

that the dismissal was without prejudice, and Fifth Third had not previously 

dismissed the same foreclosure claim in any previous action, the dismissal 

without prejudice was effective once it was filed. No further court action was 

required. 

{¶ 19} Judge Russo, however, argues that the parties’ loan-modification 

agreement represented a settlement of Fifth Third’s original foreclosure claim, 

which barred its right to recover on that claim. Yet the judge ignores the explicit 

language of the parties’ agreement that it did not constitute a satisfaction or 

release of the note and security agreement. 

{¶ 20} Moreover, even were the judge correct, Civ.R. 41(A)(1) does not 

recognize any exception for purportedly settled claims that have not been 

formally dismissed before the plaintiff files a notice of dismissal pursuant to the 

rule. Notably, Judge Russo cites no case that so holds. Instead, she cites cases in 

which the court held that settlement barred subsequent litigation based on the 

same claim, see Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio5717, 816 N.E.2d 1061, ¶ 20, and that a third foreclosure action following the 

lender’s voluntary dismissal of two previous foreclosure actions based on the 

same promissory note and mortgage was barred by the double-dismissal rule of 

Civ.R. 41(A)(1)(a). U.S. Bank Natl. Assn. v. Gullotta, 120 Ohio St.3d 399, 2008-

Ohio-6268, 899 N.E.2d 987, ¶ 25-28. Neither case controls the circumstances 
January Term, 2011 

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here, which involve Fifth Third’s absolute right under Civ.R. 41(A)(1) to dismiss 

its foreclosure action once without prejudice. Thus, Fifth Third properly 

dismissed its case without prejudice. 

{¶ 21} “When a case has been properly dismissed pursuant to Civ.R. 

41(A)(1), the court patently and unambiguously lacks jurisdiction to proceed and 

a writ of prohibition will issue to prevent the exercise of jurisdiction.” State ex 

rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 161, 656 N.E.2d 1288; State ex 

rel. Hunt v. Thompson (1992), 63 Ohio St.3d 182, 183, 586 N.E.2d 107. 

{¶ 22} Therefore, the court of appeals properly granted the requested 

extraordinary relief in mandamus and prohibition to compel Judge Russo to 

vacate that portion of the March 4, 2010 entry striking Fifth Third’s notice of 

voluntary dismissal without prejudice of its foreclosure case and to prevent Fifth 

Third from proceeding on its foreclosure claim. 

Cross-Appeal 

{¶ 23} In its cross-appeal, Fifth Third asserts that the court of appeals 

erred in denying the writ of prohibition to prevent Judge Russo from proceeding 

to determine whether Fifth Third should be held in contempt for filing a notice of 

dismissal. 

{¶ 24} As noted previously, “[t]rial courts may consider collateral issues 

like criminal contempt * * * despite a dismissal.” State ex rel. Ahmed v. Costine, 

100 Ohio St.3d 36, 2003-Ohio-4776, 795 N.E.2d 672, ¶ 5. The mere fact that the 

contempt issue was raised after Fifth Third voluntarily dismissed its foreclosure 

claim does not necessitate a finding that the trial court patently and 

unambiguously lacked jurisdiction to raise that issue. Insofar as Fifth Third might 

be found in contempt in those ongoing proceedings, it has an adequate remedy by 

appeal following any such order. State ex rel. Mason v. Burnside, 117 Ohio St.3d 

1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 15; State ex rel. Mancino v. Campbell
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(1993), 66 Ohio St.3d 217, 220, 611 N.E.2d 319 (“appealing a contempt order is 

an adequate remedy at law which will result in denial of the writ”). 

{¶ 25} Consequently, the court of appeals correctly denied the requested 

extraordinary relief in prohibition to prevent the contempt proceeding. 

Conclusion 

{¶ 26} Based on the foregoing, the court of appeals did not err in its 

judgment. Therefore, we affirm the judgment of the court of appeals. 

Judgment affirmed. 

 O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and CUPP, JJ., 

concur. 

 LUNDBERG STRATTON and MCGEE BROWN, JJ., concur in part and dissent 

in part. 

__________________ 

 LUNDBERG STRATTON, J., concurring in part and dissenting in part.

{¶ 27} I concur in the decision to grant writs of mandamus and 

prohibition to compel Judge Russo to vacate the March 4, 2010 entry striking 

Fifth Third’s notice of voluntary dismissal without prejudice and to prevent Fifth 

Third from proceeding on its foreclosure case. I respectfully dissent from the 

decision denying Fifth Third relief in prohibition to prevent Judge Russo from 

conducting the contempt proceeding. I believe that Judge Russo patently and 

unambiguously lacks jurisdiction to conduct the contempt proceeding and that an 

appeal is not an adequate remedy at law for Fifth Third. 

{¶ 28} Fifth Third was not in contempt of a court order in the underlying 

case when Judge Russo issued a show-cause order on March 4, 2010. The 

underlying case had already been dismissed and no longer existed. As the 

majority opinion states, “the dismissal without prejudice was effective once it was 

filed. No further court action was required.” Thus, it follows that the judge 

patently and unambiguously lacked jurisdiction following dismissal to issue the 
January Term, 2011 

9

show-cause order. The parties had settled the matter, and Fifth Third had filed a 

Civ.R. 41(A) voluntary dismissal on March 2, 2010. Judge Russo does not allege 

that Fifth Third disobeyed a court order, but instead, she alleged that Fifth Third 

was in contempt for filing a notice of dismissal following settlement. Although a 

court may consider a collateral issue of criminal contempt after the underlying 

action is no longer pending, see State ex rel. Corn v. Russo (2001), 90 Ohio St.3d 

551, 556, 740 N.E.2d 265, the criminal contempt allegations here did not arise 

prior to dismissal. Judge Russo’s allegations relate to the actual notice of 

dismissal and to the merits of the underlying action – they are not collateral 

issues. Consequently, I believe that Judge Russo lacked jurisdiction to proceed 

following Fifth Third’s dismissal. 

{¶ 29} Fifth Third’s remedy by appeal, in the unlikely event it is found in 

contempt, is not adequate. An adequate legal remedy must be practical and 

efficient and promptly administer justice. Mid-America Tire, Inc. v. PTZ Trading 

Ltd., 95 Ohio St.3d 367, 2002-Ohio-2427, 768 N.E.2d 619, ¶ 81. It is illogical to 

require Fifth Third to appear and defend in a contempt action under these 

circumstances, as well as time-consuming and costly to Fifth Third and the 

judicial system. In the unlikely event that Fifth Third does not prevail in the 

contempt proceeding, an appeal is not as efficient as a writ of prohibition would 

be if we granted it now. Thus, I believe that an appeal is an inefficient and 

inadequate remedy, and I would grant a writ of prohibition to prohibit Judge 

Russo from proceeding on the contempt hearing. 

{¶ 30} I respectfully dissent from the resolution of the cross-appeal. 

 MCGEE BROWN, J., concurs in the foregoing opinion. 

__________________ 

 Graydon, Head & Ritchey, L.L.P., John C. Greiner, Harry W. Cappel, and 

Katherine M. Lasher, for appellee and cross-appellant. 
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 William D. Mason, Cuyahoga County Prosecuting Attorney, and Charles 

E. Hannan, Assistant Prosecuting Attorney, for appellant and cross-appellee. 

______________________