[Cite as HSBC Bank USA, N.A. v. Wanda, 2013-Ohio-1556.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98775

HSBC BANK USA, N.A., ETC.

PLAINTIFF-APPELLANT 

vs. 

DANIEL A. WANDA, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

REVERSED AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-782637 

BEFORE: Celebrezze, P.J., Keough, J., and Kilbane, J. 

RELEASED AND JOURNALIZED: April 18, 2013 
ATTORNEYS FOR APPELLANT

Scott A. King 

Terry W. Posey, Jr. 

Thompson Hine, L.L.P. 

Austin Landing I 

10050 Innovation Drive 

Suite 400 

P.O. Box 8801 

Dayton, Ohio 45401 

Wayne E. Ulbrich 

120 E. 4th Street 

8th Floor 

Cincinnati, Ohio 45202 

ATTORNEYS FOR APPELLEE

Allen C. Tittle 

Christopher M. Mellino 

Mellino Robenalt, L.L.C. 

19704 Center Ridge Road 

Rocky River, Ohio 44116 
FRANK D. CELEBREZZE, JR., P.J.: 

{¶1} Appellant, HSBC Bank USA, N.A. (“HSBC”), brings the instant appeal 

from the grant of summary judgment in favor of appellee, Daniel Wanda (“Wanda”), 

disposing of HSBC’s foreclosure action. HSBC argues the trial court erred in dismissing 

the third filing of its foreclosure action because the “double-dismissal rule” does not 

apply to this case. After a thorough review of the record and case law, we agree and 

reverse the grant of summary judgment. 

I. Factual and Procedural History

{¶2} Wanda entered into a loan agreement with Wells Fargo Bank, N.A., on 

December 30, 2004, for $135,000. The resultant mortgage was filed with the Cuyahoga 

County Recorder’s Office, covering a residence in Parma, Ohio. The note and mortgage 

were assigned to HSBC on May 14, 2009, and properly registered with the county 

recorder. 

{¶3} Wanda failed to timely pay his mortgage, and HSBC instituted a foreclosure 

action on March 17, 2011. Service was perfected on Wanda, but he did not respond to 

the complaint. On July 11, 2011, the trial court put forth an order directing HSBC to file 

for default judgment within ten days or risk dismissal without prejudice for failure to 

prosecute. On July 25, 2011, the court did just that after HSBC failed to file for default 

judgment. 

{¶4} HSBC refiled its foreclosure action on August 20, 2011. After service on 

Wanda was again perfected, the trial court instructed HSBC to file for default judgment 
within ten days of November 17, 2011, or the case may be dismissed without prejudice 

for failure to prosecute. Again, HSBC failed to file a motion for default judgment, and 

the trial court, on November 29, 2011, dismissed the case without prejudice.1

 The order 

of dismissal also instructed HSBC to notify the trial court within seven days of any 

refiling of its foreclosure action. 

{¶5} HSBC refiled its foreclosure action on May 15, 2012. It complied with the 

previous order to notify the original trial judge of the refiling, and the case was 

transferred to the docket of that judge. Wanda was served by special process server on 

June 11, 2012. He filed an answer and motion for summary judgment on June 21, 2012. 

HSBC’s motion in opposition was timely filed on July 20, 2012. The trial court granted 

Wanda’s motion for summary judgment on July 26, 2012. HSBC timely filed the instant 

appeal assigning one error: 

I. The trial court erred in dismissing the complaint. 

II. Law and Analysis

{¶6} HSBC argues the trial court erred when it granted summary judgment in favor 

of Wanda. This court reviews the trial court’s decision de novo. Parenti v. Goodyear 

Tire & Rubber Co., 66 Ohio App.3d 826, 829, 586 N.E.2d 1121 (9th Dist.1990). Under 

Civ.R. 56, summary judgment is only proper when the movant demonstrates that, viewing 

the evidence most strongly in favor of the non-movant, reasonable minds must conclude 

 1

 HSBC had sought an extension of time to file its dispositive motion on November 23, 2011, 

but that was denied by the trial court on November 29, 2011. 
that no genuine issue as to any material fact remains to be litigated and the moving party 

is entitled to judgment as a matter of law. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 

2000-Ohio-186, 738 N.E.2d 1243. 

{¶7} Wanda’s first argument in his motion for summary judgment is the 

“double-dismissal rule.” This rule is governed by Civ.R. 41(A)(1) and states: 

Subject to the provisions of Civ.R. 23(E), Civ.R. 23.1, and Civ.R. 66, a 

plaintiff, without order of court, may dismiss all claims asserted by that 

plaintiff against a defendant by doing either of the following: 

(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; 

(b) 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 of any claim that the plaintiff has once 

dismissed in any court. (Emphasis added.) 

{¶8} A dismissal for failure to prosecute is not included in this rule. Such a 

dismissal is specifically governed by Civ.R. 41(B)(1), stating that “[w]here the plaintiff 

fails to prosecute, or comply with these rules or any court order, the court upon motion of 

a defendant or on its own motion may, after notice to the plaintiff’s counsel, dismiss an 

action or claim.” 

{¶9} The trial court can, in its discretion, make a dismissal under Civ.R. 41(B)(1) a 

final adjudication because Civ.R. 41(B)(3) specifies that dismissals for failure to 

prosecute may be a dismissal upon the merits. See also 1970 Staff Note to Civ.R. 41(B). 
{¶10} A recent case addressed the applicability of the double-dismissal rule where 

prior dismissals were not initiated by the plaintiff in a case. In a foreclosure action 

initiated by a mortgage holder, the mortgagor sought summary judgment arguing that the 

foreclosure action was a third filing of the same action and should be dismissed by the 

rule outlined in Civ.R. 41(A). Arch Bay Holdings, L.L.C. Series 2010A v. Brown, 2d 

Dist. No. 25073, 2012-Ohio-4966. In addressing these pro se arguments raised for the 

first time on appeal, the Second District noted, “[t]he ‘double-dismissal rule of Civ.R. 

41(A)(1) applies only when both dismissals were notice dismissals under Civ.R. 

41(A)(1)(a).’” Id. at ¶ 14, quoting Olynyk v. Scoles, 114 Ohio St.3d 56, 

2007-Ohio-2878, 868 N.E.2d 254, ¶ 31. 

{¶11} In Olynyk, the Ohio Supreme Court analyzed the applicability of the 

double-dismissal rule: 

It is well established that when a plaintiff files two unilateral notices of 

dismissal under Civ.R. 41(A)(1)(a) regarding the same claim, the second 

notice of dismissal functions as an adjudication of the merits of that claim, 

regardless of any contrary language in the second notice stating that the 

dismissal is meant to be without prejudice. In that situation, the second 

dismissal is with prejudice under the double-dismissal rule, and res judicata 

applies if the plaintiff files a third complaint asserting the same cause of 

action. 

Because the double-dismissal rule specifically mentions “a notice of 

dismissal” when referring to the second dismissal, it is readily apparent that 

the second dismissal must be pursuant to Civ.R. 41(A)(1)(a) for the 

double-dismissal rule to operate. (Citations omitted.) 

Id. at ¶ 10-11. 
{¶12} In the present case, neither dismissal was unilaterally initiated by HSBC. 

Both were Civ.R. 41(B) dismissals without prejudice, as specified in the journal entries. 

The double-dismissal rule is not implicated here where the first two dismissals were 

involuntary dismissals for failure to prosecute. Accordingly, that rationale cannot serve as 

the basis for granting summary judgment. 

{¶13} Wanda also argued in his motion for summary judgment that HSBC 

displayed a clear disregard for the judicial system. Wanda’s arguments below went to 

the fact that the trial court’s second dismissal without prejudice instructed HSBC to notify 

the court within seven days of any refiled complaint. Wanda incorrectly read this as an 

order to HSBC to refile any claim within seven days of the prior dismissal. The trial 

court acknowledged this in its journal entry granting summary judgment: 

[Wanda] has misinterpreted the journal entry regarding notice within 7 days 

of refiling; that notation is to notify the court if a case is refiled, it is not 

intended nor worded to imply a case 1) should be refiled 2) that if refiled, 

that it must be done in a period of time; the language is there in order to 

efficiently notify the assigned judge that under local rules, transfer is 

appropriate to the original judge. 

 

Therefore, Wanda’s arguments to the trial court regarding this issue are clearly erroneous. 

{¶14} Wanda did not make the same argument below that he now makes — that 

HSBC’s prior behavior in failing to prosecute should lead to dismissal in the instant case. 

{¶15} The trial court’s sole basis for granting summary judgment was the fact that 

“this is the third filing of this case, with previous cases [dismissed without prejudice] by 

the court for failure to prosecute * * *.” An independent review of this issue reveals that 

prior dismissals based on a failure to prosecute do not implicate the double-dismissal rule. 
 Here, those dismissals were without prejudice and do not have res judicata effect. 

Olynyk, 114 Ohio St.3d 56, 2007-Ohio-2878, 868 N.E.2d 254, ¶ 31. While the trial court 

could still dismiss the case with prejudice based on a failure to comply with an order of 

the court according to Civ.R. 41(B)(1), there is no indication that HSBC ignored an order 

of the court or failed to prosecute the present, refiled case. 

{¶16} Wanda claims that the trial court examined HSBC’s prior actions and found 

they constituted “a complete disregard of the judicial system or the rights of the opposing 

party.” Sazima v. Chalko, 86 Ohio St.3d 151, 158, 1999-Ohio-92, 712 N.E.2d 729. 

While a trial court may consider past actions, including prior dismissed actions, as stated 

in Sazima, the general rule that, whenever possible, cases are to be decided on their merits 

still holds true. Id. 

{¶17} Wanda also argues that the trial court’s grant of summary judgment was 

appropriate because he has suffered prejudice from the prior dismissed actions. 

However, Wanda was not prejudiced by the prior filings. In the previous two cases, he 

failed to respond at all. The cases were dismissed because HSBC failed to timely move 

for default judgment. Its failure to do so likely inured a benefit to Wanda because he 

was able to retain counsel and properly defend against HSBC’s foreclosure action. 

Otherwise, he would have missed his opportunity to present a defense. Any harm to 

Wanda is minimal and certainly not the type of prejudice that should lead the trial court to 

the conclusion that the harshest possible sanction, summary judgment amounting to 
dismissal with prejudice, was warranted. The trial court’s grant of summary judgment is 

therefore reversed. 

III. Conclusion

{¶18} The trial court erred when it granted summary judgment in Wanda’s favor 

because he offered no pertinent grounds for dismissing the foreclosure action. The trial 

court’s decision was based on the double-dismissal rule, which had no application where 

the prior dismissals were not voluntary dismissals under Civ.R. 41(A)(1). 

{¶19} This cause is reversed and remanded to the lower court for further 

proceedings consistent with this opinion. 

It is ordered that appellant recover of said appellees 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. 

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE 

KATHLEEN ANN KEOUGH, J., and 

MARY EILEEN KILBANE, J., CONCUR