DENHAM, ADMR., APPELLANT, v. CITY OF NEW CARLISLE, APPELLEE.
No. 98-1935
SUPREME COURT OF OHIO
September 29, 1999
86 Ohio St.3d 594 | 1999-Ohio-128
Submitted May 25, 1999. APPEAL from the Court of Appeals for Clark County, No. 98-CA-19.
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
{¶ 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
{¶ 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
{¶ 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
{¶ 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.
“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
“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}
“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}
{¶ 13} An order of a court is final and appealable only if it meets the requirements of both
{¶ 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
{¶ 16} We are persuaded by the rational of
“(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
{¶ 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
{¶ 19} Because we hold that a voluntary dismissal pursuant to
{¶ 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
Judgment reversed and cause remanded.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
COOK, J., dissents.
DENHAM, ADMR., APPELLANT, v. CITY OF NEW CARLISLE, APPELLEE.
No. 98-1935
SUPREME COURT OF OHIO
September 29, 1999
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
{¶ 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
{¶ 25} This conclusion is bolstered by a reading of
{¶ 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
{¶ 27} Our answer to the first question, therefore, ought to be that
II
{¶ 28} Even if I were to accept the majority’s assumption — that partial voluntary dismissals are permitted by
{¶ 29} Several federal courts have answered this question when faced with the identical situation presented here: an interlocutory order as to one of the
{¶ 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
Conclusion
{¶ 32}