Denham v. City of New Carlisle, 98-1935.

• Court: United States State Supreme Court of Ohio
• Citation: 86 Ohio St.3d 594,716 NE 2d 184
• Docket Number: No. 98-1935.,98-1935.
• Parties: DENHAM, ADMR., APPELLANT, v. CITY OF NEW CARLISLE, APPELLEE.
• Decision Date: 29 September 1999

86 Ohio St.3d 594
716 NE 2d 184

DENHAM, ADMR., APPELLANT,
v.
CITY OF NEW CARLISLE, APPELLEE

No. 98-1935.

Supreme Court of Ohio.

Submitted May 25, 1999.

Decided September 29, 1999.

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.

86 Ohio St.3d 595

MOYER, C.J

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.

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.

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.)

Therefore, we must determine whether the trial court's judgment granting summary judgment for New Carlisle is a final order.

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.

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

86 Ohio St.3d 596

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."

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 determination that there is no just reason to delay entering such a judgment.

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).

"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.

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 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...