GRIFFIN, J.
Defendants have moved that the court award against the plaintiffs, pursuant to Civ. R. 41(D), attorney fees and other expenses incurred in defense of case No. 55870 which was voluntarily dismissed by plaintiffs and is substantially the same as this case.
Civ. R. 41(D) provides:
"If a party who has once dismissed an action * * * commences an action based upon * * * the same claim against the same defendant, the court may make such order...
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