Denham v. City of New Carlisle

[This opinion has been published in Ohio Official Reports at 

86 Ohio St.3d 594

.]




     DENHAM, ADMR., APPELLANT, v. CITY OF NEW CARLISLE, APPELLEE.
                 [Cite as Denham v. New Carlisle, 

1999-Ohio-128

.]
Civil procedure—Trial court’s decision granting summary judgment based on
        immunity for one of several defendants in a civil action becomes a final
        appealable order, when.
A trial court’s decision granting summary judgment based on immunity for one of
        several defendants in a civil action becomes a final appealable order when
        the plaintiff voluntarily dismisses the remaining parties to the suit pursuant
        to Civ.R. 41(A)(1).
    (No. 98-1935—Submitted May 25, 1999—Decided September 29, 1999.)
       APPEAL from the Court of Appeals for Clark County, No. 98-CA-19.
                                  __________________
        {¶ 1} Appellant, Teresa Denham (“Denham”), initiated a wrongful death
action against appellee, the city of New Carlisle (“New Carlisle”), and various other
defendants, for the death of her husband, Jerry Denham. In her suit, Denham, who
is also the administrator of her husband’s estate, claimed that New Carlisle was
liable for the death of her husband resulting from the inadequate care he received
from the city’s emergency medical services personnel.
        {¶ 2} New Carlisle filed a motion for summary judgment based on
immunity pursuant to R.C. 2744.01 and 2744.02. The trial court granted New
Carlisle’s motion for summary judgment, stating in its order, “This is not a final
appealable order as the case will proceed on the claims against the remaining
defendants.” Denham then voluntarily dismissed her claims against the remaining
defendants in the case pursuant to Civ.R. 41(A)(1).
        {¶ 3} Denham filed a timely notice of appeal in the Court of Appeals for
Clark County. The court of appeals held that the summary judgment order was an
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interlocutory non-final order and dismissed the appeal.
        {¶ 4} The Second District Court of Appeals found that its decision was in
conflict with the decision of the Eighth District Court of Appeals in Eiland v.
Coldwell Banker Hunter Realty (1997), 

122 Ohio App.3d 446

, 

702 N.E.2d 116

, and
entered an order certifying a conflict.
        {¶ 5} The cause is now before this court upon our determination that a
conflict exists.
                                __________________
        David M. Deutsch Co., L.P.A., and David M. Deutsch, for appellant.
        Freund, Freeze & Arnold, Neil F. Freund and Lynnette Pisone Ballato, for
appellee.
                                __________________
        MOYER, C.J.
        {¶ 6} The sole issue presented in this appeal is whether a decision of a trial
court granting summary judgment based on immunity for one of several defendants
in a civil action becomes a final appealable order when the plaintiff voluntarily
dismisses the remaining parties to the suit pursuant to Civ.R. 41(A)(1). This is a
case of first impression before this court.
        {¶ 7} Plaintiff-appellant Denham argues that the trial court decision
granting summary judgment to New Carlisle is a final appealable order, as all the
remaining parties have been dismissed and the summary judgment order for New
Carlisle affects a substantial right and essentially determines the outcome of the
case. New Carlisle argues that Denham’s decision to dismiss the remaining parties
to the action does not make the summary judgment decision a final appealable
order. Instead, New Carlisle contends that Denham’s decision to dismiss the
remaining defendants dissolves the summary judgment decision, rendering the
entire case as if it never existed and divests the court of appeals of jurisdiction over
the appeal.




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        {¶ 8} The jurisdiction of Ohio’s courts of appeals is set forth in Section
3(B)(2), Article IV of the Ohio Constitution, which provides:
        “Courts of appeals shall have * * * jurisdiction * * * to review and affirm,
modify, or reverse judgments or final orders of the courts of record inferior to the
court of appeals * * *.” (Emphasis added.)
        {¶ 9} Therefore, we must determine whether the trial court’s judgment
granting summary judgment for New Carlisle is a final order.
        {¶ 10} Former R.C. 2505.02 defines a “final order” as:
        “An order that affects a substantial right in an action which in effect
determines the action and prevents a judgment, an order that affects a substantial
right made in a special proceeding or upon a summary application in an action after
judgment, or an order that vacates or sets aside a judgment or grants a new trial *
* *.” 141 Ohio Laws, Part II, 3597.
        {¶ 11} R.C. 2505.02 is to be read in conjunction with Civ.R. 54(B), which
provides:
        “When more than one claim for relief is presented in an action whether as a
claim, counterclaim, cross-claim, or third party claim, and whether arising out of
the same or separate transactions, or when multiple parties are involved, the court
may enter final judgment as to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just reason for delay. In the
absence of a determination that there is no just reason for delay, any order or other
form of decision, however designated, which adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties, shall not terminate the action
as to any of the claims or parties, and the order or other form of decision is subject
to revision at any time before the entry of judgment adjudicating all the claims and
the rights and liabilities of all the parties.”
        {¶ 12} Civ.R. 54(B) establishes that courts may enter final judgment as to
one or more, but fewer than all defendants in an action, only upon an express




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determination that there is no just reason to delay entering such a judgment.
       {¶ 13} An order of a court is final and appealable only if it meets the
requirements of both Civ.R. 54(B) and R.C. 2505.02. Chef Italiano Corp. v. Kent
State Univ. (1989), 

44 Ohio St.3d 86, 88

, 

541 N.E.2d 64, 67

. Here, the court’s
decision granting summary judgment for New Carlisle meets the requirements of
R.C. 2505.02, as it affects a substantial right, that is, Denham’s ability to recover
against New Carlisle. In addition, the court’s summary judgment decision has, in
effect, determined the outcome of Denham’s case against New Carlisle. The second
question is whether the trial court’s decision granting summary judgment for New
Carlisle meets the requirements of Civ.R. 54(B).
       {¶ 14} “A dismissal without prejudice leaves the parties as if no action had
been brought at all.” DeVille Photography, Inc. v. Bowers (1959), 

169 Ohio St. 267

, 272, 

8 O.O.2d 281

, 284, 

159 N.E.2d 443

, 446. New Carlisle argues that this
principle applies to Denham’s action against New Carlisle, thus effectively
nullifying the trial court’s summary judgment decision for New Carlisle and
divesting the court of appeals of jurisdiction over the instant appeal. Denham,
however, argues that the voluntary dismissal of the remaining parties to the suit
does leave the parties as if no action had been brought, but only with regard to the
parties who were voluntarily dismissed from the action. Therefore, Denham
contends that the trial court’s summary judgment decision for New Carlisle is no
longer an interlocutory order, but is now a final appealable order. We find merit in
this argument.
       {¶ 15} The determinative issue here is the effect of a Rule 41(A) voluntary
dismissal on the remaining parties to the suit. Although this court has not addressed
this specific issue, several federal courts have addressed the issue with regard to
Fed.R.Civ.P. 41(a)(1), the federal counterpart to Ohio Civ.R. 41(A), which bears
almost identical language to the Ohio rule. In Terry v. Pearlman (D.Mass.1967),

42 F.R.D. 335, 337

, the District Court of Massachusetts held that a dismissal of an




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action pursuant to Rule 41(a)(1) means all claims against any one defendant, and
not necessarily all of the claims against all of the defendants. The United States
Court of Appeals for the Ninth Circuit reached a similar conclusion in Pedrina v.
Chun (C.A.9, 1993), 

987 F.2d 608

, 609. Additionally, the United States Court of
Appeals for the Sixth Circuit apparently reached the same conclusion in Coffey v.
Foamex L.P. (C.A.6, 1993), 

2 F.3d 157, 159

. In reaching their decisions, the courts
found that the voluntary dismissal of one or more parties did not nullify all the
claims brought against each and every defendant, but instead nullified only those
claims brought against the parties dismissed under Rule 41(a)(1).
       {¶ 16} We are persuaded by the rational of Fed.R.Civ.P. 41(a)(1) and apply
it to our interpretation of Civ.R. 41(A), which provides, in part:
       “(1) By plaintiff; by stipulation. Subject to the provisions of Rule 23(E)
and Rule 66, an action may be dismissed by the plaintiff without order of court (a)
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 the defendant * * *.”
       {¶ 17} We interpret this language to mean that a Civ.R. 41 dismissal
dismisses all claims against the defendant designated in the dismissal notice and
does not apply to defendants named in the complaint who are not designated in the
notice of dismissal.
       {¶ 18} This court has previously stated its desire to avoid piecemeal
litigation. Gen. Elec. Supply Co. v. Warden Elec., Inc. (1988), 

38 Ohio St.3d 378, 380, 381-382

, 

528 N.E.2d 195, 197-198

. However, in this case all the remaining
parties to the suit have been dismissed. Therefore, the only issue to be determined
is whether New Carlisle may be liable to Denham. This further supports the
contention that a Civ.R. 41(A) dismissal should be construed to render the parties
as if no suit had ever been brought, but only with respect to the parties dismissed.
For these reasons we find that a Civ.R. 41(A) dismissal nullifies the action only




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with respect to those parties dismissed from the suit.
          {¶ 19} Because we hold that a voluntary dismissal pursuant to Civ.R. 41(A)
renders the parties as if no suit had ever been filed against only the dismissed
parties, the trial court’s summary judgment decision meets the requirements of
Civ.R. 54(B). Therefore, the trial court’s summary judgment decision is a final
appealable order.
          {¶ 20} For all of the aforementioned reasons, we hold that a trial court’s
decision granting summary judgment based on immunity for one of several
defendants in a civil action becomes a final appealable order when the plaintiff
voluntarily dismisses the remaining parties to the suit pursuant to Civ.R. 41(A)(1).
Therefore, the decision of the court of appeals is reversed, and the cause is
remanded to that court for further proceedings.
                                                                    Judgment reversed
                                                                 and cause remanded.
          DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
          COOK, J., dissents.
                                  __________________
          COOK, J., dissenting.
          {¶ 21} Today’s majority opinion permits a plaintiff to unilaterally achieve
final appealability of an interlocutory order where such finality would otherwise be
unavailable. Because this decision constitutes an untenable modification of the
Ohio Rules of Civil Procedure, I respectfully dissent.
          {¶ 22} The issue certified to this court is whether a plaintiff can use Civ.R.
41(A)(1) to convert an interlocutory summary judgment order in favor of one of
multiple defendants into a final appealable order by voluntarily dismissing the
remaining defendants without prejudice. This issue poses two essential questions:
(1) does Rule 41(A)(1) permit voluntary dismissals of only some of the defendants




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in a case (a “partial” dismissal) and (2) if so, does that dismissal cause a summary
judgment or other interlocutory order as to another defendant to become final and
appealable?
       {¶ 23} The majority approaches the certified issue by asking and answering
a different question — one that is not dispositive of this issue. Specifically, the
majority focuses upon whether a partial voluntary dismissal nullifies claims against
all of the defendants in the case, including those subject to a summary judgment
order, or whether it only nullifies the claims against those defendants subject to the
voluntary dismissal. The answer to this question is almost intuitive and the majority
therefore resolves it with ease. But with that question answered, the certified issue
remains undecided.     Rather, the applicable Ohio and federal cases illustrate
convincingly that the issue must be analyzed in the context of the two essential
questions set forth above.
                                          I
       {¶ 24} The first question in deciding the actual certified issue, then, is
whether Civ.R. 41(A)(1) permits selective voluntary dismissals as to only certain
defendants. But the express language of Rule 41(A)(1) permits the voluntary
dismissal of “an action.” Because that language contains no suggestion that the
dismissal of individual claims or parties is contemplated, most Ohio courts have
held that the term “action” should be given its ordinary meaning and be limited to
the dismissal of the entire action, all claims and all defendants. See, e.g., Borchers
v. Winzeler Excavating Co. (Apr. 10, 1992), Montgomery App. No. 13297,
unreported, 

1992 WL 82681

; Azar v. Ohio Edison Co. (Jan. 20, 1999), Summit
App. No. 19160, unreported, 

1999 WL 38192

; see, also, Lee v. Gross Lumber Co.
(1989), 

57 Ohio App.3d 52

, 

566 N.E.2d 696

.
       {¶ 25} This conclusion is bolstered by a reading of Section (B) of Rule 41.
That section concerns involuntary dismissals for failure to prosecute and allows the
court to dismiss either an “action or claim.” The use of both terms in Section (B)




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supports the conclusion that the omission of the term “claim” in Section (A) was
purposeful.
         {¶ 26} Also significant is the modifying effect that the majority’s opinion
will have on the Civil Rules. Prior to today’s decision, the rules have allowed the
dismissal of defendants in three ways: (1) via an amendment to the complaint under
Rule 15(A), which is by order of court except during the period of time before a
responsive pleading is filed; (2) under a Rule 21 motion, which allows for the
dropping of parties in certain instances by order of the court upon motion of the
parties; or (3) by dismissing an entire action without prejudice under Rule 41(A)(1)
and refiling against a different set of defendants, a tactic that is permitted only once.
The majority’s decision today allows circumvention of the safeguards envisioned
by these rules by permitting selective dismissal of defendants without leave of
court.
         {¶ 27} Our answer to the first question, therefore, ought to be that Civ.R.
41(A)(1) does not permit voluntary dismissals as to only certain defendants. The
term “action” as used in Civ.R. 41(A)(1) should be accorded its ordinary meaning
and construed to apply only to the voluntary dismissal of an entire action rather
than certain defendants.
                                           II
         {¶ 28} Even if I were to accept the majority’s assumption — that partial
voluntary dismissals are permitted by Civ.R. 41(A)(1) — there still would be the
question of the effect of such a dismissal on the part of the case that remains
pending. The majority holds that partial dismissal without prejudice of some
defendants in an action transforms the interlocutory summary judgment into a final
appealable order. I believe that it does not and that the majority bypassed analyzing
this point.
         {¶ 29} Several federal courts have answered this question when faced with
the identical situation presented here: an interlocutory order as to one of the




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defendants or claims in a case (such as the summary judgment rendered for the city
in the instant case) and a subsequent voluntary dismissal without prejudice of the
remaining claims or defendants. In almost every case, interpreting rules nearly
identical to our own, the federal courts have adamantly concluded that a voluntary
dismissal without prejudice of less than all the defendants or claims fails to
terminate the action, and the interlocutory orders remain interlocutory. See, e.g.,
Chappelle v. Beacon Communications Corp. (C.A.2, 1996), 

84 F.3d 652

.
       {¶ 30} In Chappelle, the court reasoned that because a dismissal without
prejudice can always be refiled, there is insufficient finality in the action to render
the remaining interlocutory orders final. The court noted, “because a dismissal
without prejudice does not preclude another action on the same claims, a plaintiff
who is permitted to appeal [a prior adverse determination] following a voluntary
dismissal without prejudice will effectively have secured an otherwise unavailable
interlocutory appeal.” Chappelle, 

84 F.3d at 654

. Sufficient finality is achieved,
the court found, only where the dismissals are filed with prejudice. 

Id.

 See, also,
Fletcher v. Gagosian (C.A.9, 1979), 

604 F.2d 637

, 639 (rejecting the idea that “the
policies against multiplicity of litigation and against piecemeal appeals may be
avoided at the whim of a plaintiff”); Dannenberg v. Software Toolworks, Inc.
(C.A.9, 1994), 

16 F.3d 1073

.
       {¶ 31} So, even if I were to accept the proposition that Civ.R. 41(A)(1)
allows a partial voluntary dismissal without prejudice, I cannot agree that such a
dismissal converts the existing summary judgment order to a final appealable order.
                                     Conclusion
       {¶ 32} Civ.R. 41(A)(1) does not permit plaintiffs to voluntarily dismiss
fewer than all of the defendants in their action. Accordingly, I would affirm the
appellate court’s decision holding the purported dismissal of the defendants a
nullity and dismissing the appeal for lack of a final appealable order.
                               __________________




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