Pattison v. W.W. Grainger, Inc.Pattison v. W.W. Grainger, Inc.
Lead Opinion
{¶ 1} We hold today 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
Factual and Procedural Background
{¶ 2} On May 6, 2003, plaintiff-appellant, Wally Pattison, brought an action in the Cuyahoga County Court of Common Pleas against his former employer, defendant-appellee W.W. Grainger, Inc., alleging age discrimination in violation of
{¶ 3} Pattison appealed that decision to the Eighth District Court of Appeals, which dismissed the appeal for lack of a final, appealable order. The court found that Grainger’s motion for summary judgment had addressed only the first count of Pattison’s complaint, ignoring his public-policy claim, and that the trial court’s summary judgment had likewise failed to resolve that claim. The appellate court concluded, ‘We find, reluctantly, that we lack a final appealable order because the public policy claim for relief is still extant.” Pattison v. W.W. Grainger, Cuyahoga App. No. 86698,
{¶ 4} On June 29, 2006, Pattison filed in the trial court a
{¶ 5} Pattison then filed a second notice of appeal on August 9, 2006, which was more than 30 days from the filing of the voluntary dismissal, but less than 30
{¶ 6} The controversy in this case is not about whether the appeal was timely filed but instead is about whether Pattison’s voluntary dismissal of his public-policy claim created a final, appealable order upon which the appellate court could enter a judgment. Pattison is in the unusual position of arguing that the order he himself appealed from was not, in fact, a final, appealable order.
{¶ 7} The court below noted that its holding that a plaintiff could voluntarily dismiss a claim pursuant to
{¶ 8} “In our view,
{¶ 9} Concurrently with its dismissal, and recognizing its conflict with Borch-ers, the Eighth District sua sponte certified the following question to this court:
{¶ 10} “In a case where a plaintiff has asserted multiple claims against a single defendant and some of those claims have been ruled upon but not converted into a final order with
{¶ 11} The cause is before this court upon the certification of a conflict.
Law and Analysis
{¶ 12}
{¶ 13} In its opinion, the Eighth District recognized that as to
{¶ 14}
{¶ 15} “[A]n action may be dismissed by the plaintiff without order of court * * * by filing a notice of dismissal at any time before the commencement of trial.”
{¶ 16} The key difference between the pre-Denham rule and the current rule is that the pre-Denham rule stated that “an action may be dismissed by the plaintiff,” whereas the current rule reads that a plaintiff “may dismiss all claims asserted by that plaintiff against a defendant.” (Emphasis added.) In Denham, this court essentially held that “an action” in the pre-Denham version of the rule meant “all claims” asserted against a particular defendant.
{¶ 17} Denham was a wrongful-death action brought against multiple defendants. The plaintiff, the wife of the deceased, alleged that the EMS employees of the city had been negligent in providing care to her husband, leading to his death. The city was granted summary judgment based on immunity under
{¶ 18} This court reversed the appellate court. Relying on case law interpreting the federal version of the rule, this court held, “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
{¶ 19} As recognized by the Eighth District Court of Appeals, other appellate districts faced with this question have found that dismissal of a single claim among others against the same defendant is not permitted by
{¶20}
{¶ 21} The Eighth District gave little weight to this possibility, stating that “it has been our experience that plaintiffs who voluntarily dismiss a cause of action in order to create a final order rarely, if ever, refile those dismissed claims.”
{¶ 22} Therefore, we answer the question certified by the court of appeals in the negative. Accordingly, we reverse the judgment of the court of appeals and remand for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Dissenting Opinion
dissenting.
{¶ 23} I respectfully dissent from the majority’s reading of
{¶ 24} The majority’s holding leaves a plaintiff in a conundrum. In order to appeal an adverse judgment on one or more claims of a multicount complaint, a plaintiff must dismiss with prejudice all other unresolved claims. This requirement forces the plaintiff to give up potentially meritorious claims. Alternatively, a plaintiff must proceed on the remaining unresolved claims, which may be so weak or peripheral that the parties and the court are forced to waste their time. And regardless of whether a plaintiff is successful on the remaining claims, if the
{¶ 25} I believe that a party can dismiss one or more claims, but fewer than all the claims, in a multicount complaint under
{¶ 26} The court of appeals dismissed the wife’s appeal, finding that it was not a final, appealable order. Following the rationale of
{¶27} Here, the court of appeals found that the trial court had granted summary judgment on one claim. I believe that there is no difference between dismissing claims and dismissing parties. By filing a
{¶ 28} Contrary to the majority’s holding, I believe that the better result was reached by the court in Eiland v. Coldwell Banker Hunter Realty (1997),
{¶ 29} In the alternative, I believe that courts should treat a
{¶ 30} With little elaboration, the majority states that parties seeking to dismiss fewer than all claims in a multicount complaint should file a motion for leave to amend. Determining whether dismissing fewer than all the claims in a multicount complaint is more appropriately accomplished by moving for leave to amend a complaint, as opposed to a notice of dismissal, is “more technical than substantial.” Mgt. Investors v. United Mine Workers of Am. (C.A.6, 1979),
{¶ 31} I believe that
{¶ 32} Therefore, I would hold that the Civil Rules permit a party to dismiss fewer than all the claims in a multicount complaint, thereby converting any remaining claim or claims that have been adjudicated into a final, appealable order. In the instant case, I would hold that Pattison’s dismissal of the common-law claim was permitted under either