Robert Luehrman et al., Plaintiffs-Appellants, v. Tamara Verma et al., Defendants-Appellees.
No. 12AP-1024 (C.P.C. No. 10CVC-02-3106)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
July 31, 2014
2014-Ohio-3335
(REGULAR CALENDAR)
Carpenter Lipps & Leland LLP, Michael H. Carpenter, and Katheryn M. Lloyd, counsel for Amicus Curiae Property and Casualty Insurance Company of Hartford.
APPEAL from the Franklin County Court of Common Pleas.
D E C I S I O N
BROWN, J.
{¶ 1} Plaintiffs-appellants, Robert and Rebecca Luehrman, husband and wife (collectively “appellants“), appeal from a judgment of the Franklin County Court of Common Pleas in their personal injury action arising from an automobile accident. This appeal involves only legal and рrocedural issues and, to the extent that we mention underlying facts, we make no binding determination as to their accuracy.
{¶ 2} Defendant-appellee, Tamara Verma, drove left-of-center and collided head-on with the vehicle occupied by appellants, who both suffered serious injuries. Appellants, represented by trial counsel Andrew W. Cecil, filed a complaint stating negligence claims against Verma. Counts 1, 2, and 3 of the complaint sought damages for
{¶ 3} Verma‘s liability insurer, State Farm Mutual Automobile Insurancе Company, defended the action under the terms of her automobile insurance policy, appointing attorney James Mann. After some initial discovery, Cecil concluded that Verma was not acting within the scope of her employment at the time of the accident. Based upon this belief that there would be no other available source of recovery beyond Verma‘s personal automobile insurance, attorneys Cecil and Mann negotiated a partial settlement addressing only appellants’ claims that arose from Robert‘s injuries. On July 27, 2010, counsel filed an agreed entry titled “Partial Stipulation of Dismissal with Prejudice” (hereinafter “the 2010 settlement” or “2010 dismissal“). This provided that “all claims of Robert Luehrman arising from his personal injuries and property damage and all claims of Rebecca Luehrman which arise from the injuries sustained by Robert Luehrman are hereby dismissed with prejudice.” The 2010 dismissal thus left active both Rebecca‘s claims based upon her own injuries and Robert‘s claims based upon Rebecca‘s injuries. Pursuant to this agreement, State Farm paid the limits of Verma‘s $100,000 per-person liability coverage.
{¶ 4} After the 2010 dismissal, discovery continued as attorney Cecil pursued аppellants’ remaining claims against Verma. At a deposition held October 14, 2010, Verma, who worked as a home hospice care provider, testified that at the time of the accident she was, in fact, driving for purposes of her employment:
Q: Where were you going to and coming from when this happened?
A: I was going to a patient‘s house. And I left the hospital where we meet for morning meetings.
(Verma Depo., 11.)
{¶ 5} Based upon this information, appellants’ counsel Cecil revised his prior assessment of possible sources of recovery for his clients. Cecil accordingly undertook various filings to attemрt to negate the 2010 dismissal of appellants’ claims arising from Robert‘s injuries so that appellants could pursue additional recovery from Verma‘s employer for those claims.1
{¶ 6} The first of these filings occurred on August 31, 2011 when appellants, through Cecil, filed a pleading titled “Motion to Vacate Voluntary Dismissal” pursuant to
{¶ 7} Verma‘s representation at this time became complicated by the appearance of new counsel on her behalf. Attorneys John Fiocca and Matthew Dougherty of the firm of Smith, Rolfes & Skavdahl (hereinafter “Smith Rolfes“) entered an appearance on behalf of Verma, appointed by Property and Casualty Insurance Company of Hartford, the liability insuror for Verma‘s employer. This notice of appearance explicitly acknowledged that attorney Mann, appointed by State Farm, would continue to represent Verma as well. As a result, Verma now found herself with two sets of counsel. Smith Rolfes promptly filed a memorandum in opposition to appellants’ motion to vacate voluntary dismissal. This memorandum argued that (1) the stipulation of dismissal was not a finаl judgment, order or proceeding, (2) the motion was untimely, and (3) the stipulation of dismissal could not be vacated in any case.
{¶ 8} Awaiting the trial court‘s decision on appellants’ pending
{¶ 9} On February 16, 2012, the trial court rendered a decision denying appellants’
{¶ 10} On February 21, 2012, appellants filed a notice of additional еvidence in support of the joint motion to set aside the prior stipulation of dismissal, citing the Supreme Court of Ohio‘s decision in Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276. Appellants argued that, under the Supreme Court‘s decision in Pattison, the 2010 dismissal was without effect because
{¶ 11} On March 13, 2012, Hartford filed a motion for leave to file an amicus brief presented by yet another firm, Carpenter Lipps & Leland LLP. On June 18, 2012, the trial court denied the parties’ joint January 11, 2012 motion to set aside the dismissal. The court also denied Hartford‘s motion for leave to file an amicus brief.
{¶ 12} On July 12, 2012, appellants renewed their efforts to vacate the 2010 dismissal with a motion entitled “Motion to Acknowledge Original Complaint as Intact.” This again invoked the Supreme Court‘s decision in Pattison to assert that the 2010 partial dismissal was a nullity. The next day, on July 13, 2012, appellants filed an amended complaint, pursuant to
{¶ 13} On August 31, 2012, the trial court denied appellants’ motion to acknowledge original complaint as intact. The court also denied consent to amend the complaint baсk to its original form and thus reinstate Robert‘s claims. On November 19, 2012, appellants settled their remaining claims with State Farm and filed a partial dismissal with prejudice covering their remaining claims: Rebecca‘s claims for her own injuries and Robert‘s claims for Rebecca‘s injuries (hereinafter “the 2012 dismissal“). Appellants then filed their notice of appeal to this court on December 5, 2012.
{¶ 14} Appellants bring the following six assignments of error:
[I.] The trial court erred by giving effect to the parties’ July 27, 2010 “Partial Stipulation of Dismissal with Prejudice” and deeming that effect irreversible.
[II.] The trial court erred by failing to acknowledge the consented-to Amended Complaint filed July 13, 2012.
[III.] The trial court erred by denying Plaintiffs’ August 31, 2011 Motion to Vacate Voluntary Dismissal.
[IV.] The trial court erred by denying the parties’ January 11, 2012 Joint Motion to Set Aside Stipulation of Dismissal.
[V.] The trial court erred by denying Plaintiffs’ July 12, 2012 Motion to Acknowledge Original Complaint as Intact.
[VI.] The trial court erred by failing to allow the parties to mutually decide what claims constituted their dispute.
{¶ 15} Nominally an appellee, Verma has not defended this appeal. We have granted Hartford the opportunity to file a brief as amicus curiae in this appeal, despite the fact that the company‘s position is not, as the matter is now postured, in support of Verma or any current party but in direct defense of its own future liability. We note from the outset that this case presents only issues of law upon appeal, and we review the pertinent parts of the trial court‘s decision under a de novo standard.
{¶ 16} Appellants’ first, second, fourth, fifth, and sixth assignments of error address the trial court‘s denial of appellants’ efforts to (1) deem the 2010 dismissal a nullity pursuant to Pattison, or, failing that, (2) amend the complaint back to its pre-dismissal state. These denials raise two distinguishable issues that are argued more оr less collectively across these assignments of error, and we frame our discussion accordingly.
{¶ 17} The first question concerns the analysis of the procedural history of this case in light of the Supreme Court‘s holding in Pattison. This in itself presents two sub-issues because there are two partial dismissals in the case that are potentially subject to Pattison. First, we must determine the effect under Pattison of appellants’ 2012 voluntary dismissal of their remaining claims in order to terminate the trial court case and bring this appeal. If Pattison applies to that dismissal, we lack a final appealable order in the case. Next, we determine whether appellants’ partial dismissal in 2010 of some claims was a nullity under Pattison, leaving those claims still active, as appellants assert.
{¶ 18} In Pattison, the plaintiffs suffered adverse rulings in the trial court on some, but not all, of their claims. They then dismissed their remaining claims without prejudice in order to bring an immediate appeal. The Eighth District found the appeal untimely, but certified the case to the Supreme Court based on a conflict with other appellate districts. On further appeal, the Supreme Court reversed in part on the basis that there was no final appealable order in the case. The Supreme Court held that dismissal of some, but not all, claims in an attempt to render a matter immediately appealable was not permissible under
{¶ 19} The Supreme Court‘s ruling in Pattison is based upon the text of
{¶ 20} In addition to the strict language of the rule, the Supreme Court explicitly stated that this interpretation of
[W]ere
Civ.R. 41(A) to be used to dismiss fewer than all of the claims against a certain defendant, a plaintiff could create a final and appealable order as to one issue underCiv.R. 41(A) while still saving the dismissed claim to be refiled later. To allow a partialCiv.R. 41(A) dismissal is potentially prejudicial to defendants. In cases in which all claims against a party are dismissed without prejudice, there still is the risk of the action being refiled, but the amount of potential litigation that a defendant is subjected to is the same. When an individual claim against a defendant is dismissed without prejudice, howеver, the defendant is forced to go through the appeal process and may perhaps still be subjected to the dismissed claim upon refiling. The defendant in that situation is vulnerable to an increased overall burden due to theCiv.R. 41 dismissal.
{¶ 21} The first question before us is whether dismissals with prejudice, as occurred with both the 2010 and 2012 dismissals in our case, merit the same treatment under
{¶ 22} The sole post-Pattison case explicitly examining this aspect of
Because the plaintiff in Pattison dismissed his remaining claim without prejudice, the Supreme Court did not discuss the appealability of an order, which disposes of some, but not all of the plaintiff‘s claims against a defendant, following the plaintiff‘s voluntarily dismissal with prejudice of her remaining claims against that same defendant. [Defendant] has not cited, nor has our independent research discovered, any Ohio cases extending Pattison beyond its facts.
Here, [plaintiff] has dismissed her remaining claims against [defendant] with prejudice. The Ohio Supreme Court has held that a dismissal with prejudice “operates as an adjudication on the merits and is an appealable order under
R.C. 2305.03 .” See Tower City Properties v. Cuyahoga Cty. Bd. of Revision, 49 Ohio St.3d 67, 69, 551 N.E.2d 122 (1990) (quoting the staff note toCiv.R. 41 ); see also Chadwick v. Barba Lou, Inc., 69 Ohio St.2d 222, 226, 431 N.E.2d 660 (1982); compare Hensley v. Henry, 61 Ohio St.2d 277, 400 N.E.2d 1352, syllabus (1980) (“Unless Plaintiff‘sCiv.R. 41(A)(1)(a) notice of dismissal operates as an adjudication upon the merits underCiv.R. 41(A)(1) , it is not a final judgment, order, or proceeding.“).* * *
By allowing [plaintiff] to appeal, following the voluntary dismissal of her remaining claims with prejudice, this court is actually furthering the goal of judicial economy by permitting [plaintiff] to forego litigation on the dismissed claims while accepting the risk that if her appeal on the contract claims is unsuccessful the litigation will end.
{¶ 23} As did the First District in Groen, we conclude that the concerns regarding piecemeal litigation discussed in Pattison are not present in the case of a dismissal with prejudice of some, but not all, claims against a defendant. Even if a partial dismissal with prejudice is followed by an appeal that results in a reversal with respect to other claims and remanded to the trial court, the dismissed claims have been adjudicated and there is no risk of refiling. For this reason we find that both partial dismissals with prejudice filed by appellants in our case are not affected by Pattison and will be given full effect. The 2012 partial dismissal terminated the action and formed the basis for a final appealable order, and the 2010 dismissal was fully effective to terminate some of appellants’ claims with prejudice.
{¶ 24} With respect to the initial 2010 partial dismissal, the timing of the dismissal forms another basis, aside from the with/without prejudice dichotomy, upon which to distinguish the procedural posture of this case from that found in Pattison. The partial dismissal in Pattison came at the close of the case as the plaintiff attempted to terminate
{¶ 25} Having concluded that the 2010 dismissal was effective, we now turn to the question of whether the trial court erred in denying the parties’ subsequent effort to revive the claims by agreement. Appellants assert that, pursuant to
{¶ 26}
{¶ 27} The trial court concluded that, based on various filings by Smith Rolfes in opposition to reinstatement of the dismissed claims, the amended complaint was, in fact, not fully consented to since at least one set of counsel for Verma opposed such
{¶ 28} We do not underestimate the difficulties presented to the trial court by the presence of competing sets of counsel purporting to represent Verma in this matter. As the trial court noted, Verma‘s counsel appointed by Hartford, Smith Rolfes, opposed some Pattison-based filings approved by their co-counsel, attorney Mann. Nonetheless, Smith Rolfes did not file any opposition specific to the amended complaint that was submitted by appellants with the express consent of Verma through her other counsel. Under these conditions, we find there was consent for the amended complaint, and no leave was required.
{¶ 29} Appellants, under the third assignment of error, challenge the trial court‘s decision to deny Verma‘s August 31, 2011 motion to vacate a voluntary dismissal. Based upon our disposition of assignments of error two and six, we find this issue to be moot.
{¶ 30} In accordance with the foregoing, we find that the trial court did not err in declining to apply Pattison to find that the dismissed claims remained active. The court did err, however, in finding that it could deny leave to amend the complaint pursuant to
Judgment affirmed in part and reversed in part; cause remanded.
DORRIAN, J., concurring in judgment only.
{¶ 31} I concur in judgment only with Judge Brown.
{¶ 32} On the issue of whether we have a final, appealable order, WITH THE 2012 VOLUNTARY DISMISSAL, I find Tower City Properties v. Cuyahoga Cty. Bd. of Revision, 49 Ohio St.3d 67 (1990), to be dispositive. In Tower City, the Supreme Court of Ohio referred to the Staff Notes to
{¶ 33} On the issue of whether the trial court erred by not vacating, reconsidering or determining to be a nullity the 2010 voluntary dismissаl, I believe Pattison and
{¶ 34} I begin by noting that the “with prejudice” language in the 2010 voluntary dismissal is troublesome. The Supreme Court of Ohio in Horne v. Woolever, 170 Ohio St. 178, 182 (1959), stated that “[t]he term ‘with prejudice’ is the converse of ‘without prejudice‘; and, where a party to an action consents to a judgment of dismissal ‘with prejudice,’ such judgment concludes the rights which he did assert or should have asserted therein to the same extent as they would have been concluded if the action had been prosecuted to a final adjudication against those rights.” However, several factors
{¶ 35} Although the facts in Pattison involved a dismissal without prejudice, the case does state ”
{¶ 36} There exists another reason to consider the 2010 voluntary dismissal a nullity. This court has noted that case law supports the trial court‘s determination that a motion to voluntarily dismiss less than all claims in a multi-count complaint is properly treated as an amendment under
{¶ 37} I note that a number of federal courts have also adopted this view. See Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1392 (1988) (“Federal Rule of Civil
{¶ 38} Finally, even if the 2010 voluntary dismissal were not considered a nullity, it could be considered аn interlocutory order as it did not contain an express determination that there is no just reason for delay and some of appellants’ claims remained pending. Pursuant to
{¶ 39} Having found that it was error to deny appellants’ motions, I would find the question of whether the trial court erred in denying the motion to amend to be moot.
{¶ 40} I would, therefore, reverse the trial court.
SADLER, P.J., dissenting.
{¶ 41} Because I believe Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, requires dismissal of this appeal, I respectfully dissent.
{¶ 42} As noted in the lead decision‘s factual summary, the November 19, 2012 partial dismissal from which this appeal was taken dismissed Rebecca‘s claims for her own injuries and Robert‘s claims arising therefrоm. In Pattison, the Supreme Court of Ohio rejected a partial dismissal intended to dispose of the case and held that when a plaintiff has asserted multiple claims against one defendant and some of those claims have been ruled upon but not converted into a final order through
{¶ 43} Both the lead and concurring decisions conclude Pattison is not applicable because the dismissal here was with prejudice, as opposed to without prejudice, as was the circumstance in Pattison. Though Pattison involves a different procedural history, I believe such a distinction fails to consider the basis upon which Pattison relied to reject the plaintiff‘s dismissal in that case, specifically the text of
{¶ 44} Further, I am not persuaded by the reliance on Groen v. Children‘s Hosp. Med. Ctr., 1st Dist. No. C-100835, 2012-Ohio-2815. In Groen, the court stated the
{¶ 45} While I fully understand that such a result here may be wholly unsatisfactory, if the Supreme Court of Ohio intended to limit its discussion of