Jаmes E. Fisher, individually and as the Administrator of the Estate of Delores G. Fisher, deceased, Plaintiff-Appellant, v. Gunwant Mallik, M.D. et al., Defendants-Appellees.
No. 14AP-140 (C.P.C. No. 13CV-8764)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 19, 2015
2015-Ohio-1008
BROWN, P.J.
(REGULAR CALENDAR)
Rendered on March 19, 2015
Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for appellant.
Arnold Todaro & Welch, Co., L.P.A., and Karen L. Clouse for appellees Thomas F. Brady, M.D., and Columbus Inpatient Care, Inc.
Hammond Sewards & Williams, and Frederick A. Sewards, for appellees James Sinard, M.D., and Mid Ohio Surgical Associates, Inc.
Adkinson Law Office, and Patrick K. Adkinson, for appellees Jeffrey E. Salon, M.D., and Columbus Pulmonary and Critical Care, L.L.C.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, P.J.
{¶ 1} James E. Fisher, individually, and as the administrator оf the estate of Delores G. Fisher, deceased, plaintiff-appellant, appeals from a judgment of the Franklin
{¶ 2} On April 13, 2011, appellant filed a medical negligence action against Gunwant Mallik, M.D.; James Sinard, M.D.; Mid-Ohio Surgical Associates, Inc. (“Mid Ohio“); Thomas F. Brady, M.D.; Columbus Inpatient Care, Inc. (“Cоlumbus Inpatient“); Jeffrey E. Salon, M.D.; Columbus Pulmonary and Critical Care, L.L.C. (“Columbus Pulmonary“); Mt. Carmel Health and Mt. Carmel Health Systems (collectively “Mt. Carmel“); Roy C. St. John, M.D.; Columbus Neurosurgery and Neurology (“Columbus Neurosurgery“); and Trinity Health Systems (“Trinity“).
{¶ 3} On May 18, 2011, appellant voluntarily dismissed his claims against Columbus Neurosurgery and Trinity without prejudice. On June 2, 2011, appellant dismissed the claims against Dr. St. John.
{¶ 4} Dr. Sinard, Mid-Ohio, Dr. Salon, Columbus Pulmonary, Columbus Inpatient, and Dr. Brady filed motions for summаry judgment, which the trial court granted October 26, 2012. The court did not include the “no just reason for delay” language referred to in
{¶ 5} On February 26, 2013, appellant voluntarily dismissed, pursuant to
{¶ 6} On August 9, 2013, appellant refiled the medical negligence action against Dr. Mallik, Dr. Sinard, Mid-Ohio, Dr. Brady, Cоlumbus Inpatient, Dr. Salon, Columbus Pulmonary, and Mt. Carmel. Dr. Salon, Columbus Pulmonary, Dr. Brady, Dr. Sinard, Columbus Inpatient, and Mid-Ohio, defendants-appellees, filed motions to dismiss, pursuant to
{¶ 7} On November 25, 2013, the trial court granted the motions to dismiss filed by appellees. The trial court found that, although appellant was not permitted to appeal the October 26, 2012 decision, that decision was still final and became final and appealable when appellant voluntarily dismissed the remainder of his claims on February 26, 2013. Appellant then filed a motion for reconsideration seeking to add the
THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, BY DISMISSING PLAINTIFF-APPELLANT‘S CLAIMS UNDER AUTHORITY OF CIV.R. 12(B).
{¶ 8} Appellant argues in his assignment of error that the trial court erred when it dismissed his action pursuant to
{¶ 9} A motion to dismiss under
{¶ 10} In the present case, the trial court found that appellant misunderstood the cоurt‘s October 26, 2012 ruling. The court found that the October 26, 2012 ruling was not interlocutory but, instead, was a final order that became final and appealable when appellant voluntarily dismissed “the remainder” of his claims on February 26, 2013. In support, the trial court pointed to the language in its October 26, 2012 decision and entry that appellees were dismissed with prejudice from the action as of the date of the filing of the decision. The court found that its decision acted as an entry granting affirmative relief to appellees and affirmatively disposed of appellant‘s claims against appellees.
{¶ 11} Here, appellant argues that the court‘s October 26, 2012 decision granting summary judgment to Dr. Sinard, Mid-Ohio, Dr. Salon, Columbus Pulmonary, Columbus Inpatient, and Dr. Brady was interlocutory in nature and was rendered null when he subsequеntly voluntarily dismissed the action “in its entirety” “against defendants.” Appellant claims that his voluntary dismissal related to all defendants originally named in the complaint and not just the claims and defendants remaining after summary judgment had been granted to Dr. Sinard, Mid-Ohio, Dr. Salon, Columbus Pulmonary, Columbus Inpatient, and Dr. Brady.
{¶ 12} In reply, appellees rely largely upon the Supreme Court of Ohio‘s decision in Denham v. New Carlisle, 86 Ohio St.3d 594 (1999). In Denham, Denham filed an action against sevеral defendants, including New Carlisle. The trial court granted New Carlisle summary judgment, but stated that the order was not a final appealable order as the case would proceed on the claims against the remaining defendants. Denham then voluntarily dismissed her claims against the remaining defendants in the case pursuant to
{¶ 13} After certifying a conflict, the Supreme Court found that the court‘s decision granting summary judgment for New Carlisle met the requirements of
{¶ 14} Although appellees contend that Denham is directly on point and answers the question before this court, we believe Denham does not fully address the issues before us. Not addressed in Denham is appellant‘s argument that he not only dismissed the remaining defendants who had not been granted summary judgment, but he dismissed the entirе action and all defendants, including the ones who had been granted summary judgment. Therefore, appellant‘s argument raises the two following issues: (1) did appellant‘s voluntary dismissal actually seek to dismiss all of the parties to the original action, including those for whom the trial court had already granted summary judgment, and, if so, (2) may a plaintiff, in a multi-defendant case, voluntarily dismiss defendants for whom the trial court has already granted summary judgment.
{¶ 15} With regard to the first issue above, the Supreme Court in Denham found by implication that a plaintiff may voluntarily dismiss, pursuant to
{¶ 16} The trial court apparently believed appellant‘s February 26, 2013 dismissal related only to the remaining defendants, as the court stated several times in its decision that appellant dismissed only “the remainder” of the claims in the original case. Appellant‘s voluntary dismissal provided:
Now come the Plaintiffs, by and through their attorney, and hereby voluntarily dismisses this action in its entirety, pursuant to Rule 41(A) of the Ohio Rules of Civil Procedure. Said dismissal is without prejudice, and Plaintiffs reserve the right to reinitiate an action against Defendants, as provided by the laws of the State of Ohio.
(Italics emphases added; bold emphasis sic.)
{¶ 17} After rеviewing appellant‘s voluntary dismissal, it appears to this court that appellant was attempting to voluntarily dismiss all claims and parties, including those to whom summary judgment was granted. The trial court did not explain why it believed the language of appellant‘s voluntary dismissal suggested it was meant to dismiss only the remaining defendants and claims, but we disagree. The voluntary dismissal indicated appellant was dismissing “this action in its entirety” and appellant reserved the right to “reinitiate an action against Defendants.” Both of these statements are inclusive and provide no suggestion that appellant meant for the dismissal to exclude those defendants for whom the trial court had granted summary judgment. See Fairchilds v. Miami Valley Hosp., Inc., 160 Ohio App.3d 363, 2005-Ohio-1712, ¶ 38 (2d Dist.) (notice of voluntary dismissal informing the trial court that they were voluntarily dismissing the case without prejudice subject to refiling pursuant to
{¶ 18} Having found appellant intended to voluntarily dismiss all the original defendants and claims, the second issue is whether a plaintiff, in a multi-defendant case, is permitted to voluntarily dismiss defendants for whom the trial court has already granted summary judgment. This court has before held that a voluntary dismissal without prejudice under
{¶ 19} In its decision and entry granting appellees’ motions to dismiss, the trial court distinguished the present case from Hutchinson by finding that its October 26, 2012 decision was not interlocutory, because the decision was an entry granting affirmative relief to appellees, and the decision affirmatively dismissed appellees with prejudice. The court in Bradley discussed this same reasoning in reviewing one оf its prior decisions that
{¶ 20} We note that, while we find the general holding in Bradley—that a court should look to the language of the voluntary dismissal under these circumstances—to be sound, it is the language of the entry granting summary judgment that would control when the entry contains
Judgment upon multiple claims or involving multiple parties
When more than one claim for relief is presented in an action * * * 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 fewеr than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other 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.
(Emphasis sic.)
The entries in Denham and Bradley did not contain
{¶ 21} Accordingly, appellant‘s assignment of error is sustained, and the judgment of the Franklin County Court of Common Pleas is reversed.
Judgment reversed.
KLATT, J., concurs.
DORRIAN, J., dissents.
DORRIAN, J., dissenting.
{¶ 22} I respectfully dissent. I agree with the trial judge that the summary judgment in favor of appellees became final and appealable on February 26, 2013 when appellant filed his voluntary dismissal pursuant to
{¶ 23} I share the reasoning of the dissent in Fairchilds v. Miami Valley Hosp., Inc., 160 Ohio App.3d 363, 376-77, 2005-Ohio-1712 (2d Dist.) (”Fairchilds I“), as well as the dissent in Fairchilds v. Miami Valley Hosp. Inc., 109 Ohio St.3d 1229, 2006-Ohio-3055 (”Fairchilds II“) (dismissing the appeal as having been improvidently accepted). The facts of that case were summarized by Justice Lundberg Stratton in Fairchilds II:
[In Fairchilds I] [t]he plaintiffs filed a complaint * * * against defendants Angela Landis and MVH [Miami Valley Hospital]. On December 1, 2003, the trial court granted summary judgment (after converting a motion to dismiss into a motion for summary judgment at the request of plaintiffs’ counsel) in favor of MVH and against plaintiffs on all claims. Because claims remained pending against defendant Landis, the trial court did not include
Civ.R. 54(B) language signifying that there was no just reason for delay. The trial court‘s entry,however, did state that “MVH is hereby dismissed from the case sub judice.”1 On January 26, 2004, the day that trial was scheduled to begin on the remaining claims against defendant Landis, the plaintiffs filed a motion asking the court to reconsider or set aside its decision granting summary judgment in favor of MVH. Simultaneously, the plaintiffs filed a notice of voluntary dismissal of the case without prejudice and subject to refiling pursuant to
Civ.R. 41(A) against all party defendants—Angela Landis and MVH. MVH responded with a request for a final judgment entry, seeking an order that the court‘s decision granting the motion for summary judgment constituted a final, appealable order.* * * [T]he trial court granted MVH‘s motion, concluding that the summary judgment decision became a final, appealable judgment when the plaintiffs filed the dismissal entry. The trial court concluded that despite the dismissal entry‘s language to the contrary, the plaintiffs’ voluntary dismissal applied only to the remaining defendant, Landis. The lack of
Civ.R. 54(B) language did not leave the otherwise final judgment subject to aCiv.R. 41(A) voluntary dismissal without prejudice.* * *
In the refiled case, the plaintiffs settled with defendant Landis, and she was voluntarily dismissed. MVH again filed a motion to dismiss that was converted into a motion for summary judgment. The trial court granted the motion, concluding that the plaintiffs’ claims were barred by res judicata.
The plaintiffs appealed, arguing that there was no final judgment in the first case that could constitute res judicata in the second case. The court of appeals agreed, conсluding that plaintiffs had properly dismissed both defendants in the original litigation, and that action prevented the interlocutory summary judgment from becoming a final decision in favor of MVH. The appellate court acknowledged that that result might violate a sense of fair play. Nevertheless, the court noted, the broad stroke of
Civ.R. 41(A) authorizes a plaintiff to dismiss an action without prejudice at any рoint in the litigation prior to the commencement of trial.
I conclude that the trial court‘s dismissal of MVH as a party defendant prevented appellants from filing a
Civ.R. 41(A) voluntary notice of dismissal encompassing MVH. By simply naming MVH in their notice of dismissal and using the phrase “the case,” appellants do not make it so. * * * Nor may appellants seеk to voluntarily dismiss MVH, a party previously dismissed by court order. Appellants were relegated to an involuntary dismissal of MVH, subject to revision only by court order at any time before the entry of judgment.Therefore, the grant of summary judgment to MVH and its dismissal as a party defendant by the trial court became a final, appealable order when the appellants dismissed the remaining portion of “the case,” to wit, Landis. Appellants having dismissed the sole remaining party defendant, Landis, this matter falls squarely within the Ohio Supreme Court holding in Denham. This conclusion not only comports with public policy but is consistent with
Civ.R. 1(B) , which requires that the Civil Rules “shall be construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditious administration of justice.” Appellants’ side stеp is indeed a misstep that does violate a sense of fair play. It is the trial judge controlling the adjudicatory process, not the appellants. MVH should not be required to defend the same claims a second time once they are dismissed by court order. Since the summary judgment decision became a final adjudication of the claims against MVH, the trial court properly concluded that appellants’ voluntary dismissal of Landis converted the interlocutory summary judgment into a final, appealable order and therefore properly sustained MVH‘s request for a final judgment entry.
Id. at ¶ 61-62. Justice Lundberg Stratton agreed in her dissent in Fairchilds II:
In Denham v. New Carlisle (1999), 86 Ohio St.3d 594, 716 N.E.2d 184, we sanctioned a
Civ.R. 41(A) voluntary dismissal of fewer than all of the defendants in a case, and we held that that dismissal caused an interlocutory summary judgment order in favor of the remaining defendant tо become final and appealable. I would hold that the plaintiffs’ voluntary dismissal applied to Landis only and extend the reasoning of Denham to finalize the summary judgment in favor of MVH. Therefore, I respectfully dissent.