{¶ 2} After appellee denied approval of one preliminary plat and conditionally approved the other plat for two phases of appellants' proposed residential subdivision, *2 appellants filed with the trial court two separate, but later consolidated, administrative appеals with several declaratory judgment and constitutional claims against appellee. Appelleе filed a motion to dismiss the appeals, and the magistrate issued a decision on May 10, 2007, determining appellаnts failed to properly perfect the administrative appeals and dismissing them for want of subject matter jurisdiction. The magistrate also dismissed appellants' remaining claims, except for Counts 7 and 10 in one case аnd Count 9 in the other, due to appellants' failure to exhaust their administrative remedies.
{¶ 3} On November 21, 2007, the trial cоurt adopted the magistrate's decision, overruling the parties' objections. The trial court did not incorpоrate the Civ. R. 54(B) language in its entry, as there remained three pending claims between the parties.
{¶ 4} On January 31, 2008, appellants filed a "notice of voluntary dismissal without prejudice," dismissing the remaining claims pursuant to Civ. R. 41(A). Following that voluntаry dismissal, appellants filed a notice of appeal with this court.
{¶ 5} On May 9, 2008, appellee filed with this court а motion to dismiss appellants' appeal for want of a final, appealable order, arguing aрpellants could not use Civ. R. 41(A) to perfect an appeal to this court.
{¶ 6} On May 19, 2008, appellants made two filings, one with this court and one with the trial court. Appellants argued to this court that their use of Civ. R. 41(A) to perfect the appeal was proper, citingPattison v. W.W. Grainger, Inc., Cuyahoga App. No. 88556,
{¶ 7} On September 5, 2008, the trial court filed an entry, ruling on appellants' motion. The trial court declinеd to add the Civ. R. 54(B) language to the original November 2007 entry, finding it was "not technically a final appealable order," but instead construed appellants' motion as one to amend the complaint, "in effect abolishing thе remaining claims" against appellee.
{¶ 8} This court, in an entry dated September 23, 2008, denied appelleе's motion to dismiss the appeal. For the reasons set forth below, we hereby vacate our previous оrder and dismiss this case for lack of a final, appealable order.
THE USE OF CIV.R. 41(A) TO CREATE A FINAL APPEALABLE ORDER
{¶ 9} Following this court's September 2008 order denying appellee's motion to dismiss the appeal, the Ohio Supreme Court issued its decision in Pattison. The supreme court, in reversing the Eighth Appellate District, held "that when a plaintiff has asserted multiple claims against one dеfendant, and some of those claims have been ruled upon but not converted into a final order through Civ. R. 54(B), the рlaintiff may not create a final order by voluntarily dismissing pursuant to Civ. R. 41(A) the remaining claims against the same defendant." Pattison v. W.W.Grainger, Inc.,
{¶ 10} Pursuant to this ruling, appellants' use of Civ. R. 41(A) was improper, and appellants have no final appealable order from which to appeal. This court considers appellants' attempt to dismiss the remaining claims pursuant to Civ. R. 41(A) to be a nullity, thereby leaving said claims unadjudicated. Kildow v. Home TownImprovements, Muskingum App. No. CT2001-0057,
{¶ 12} Furthermore, the trial court's subsequent attempt to construе appellants' motion as one to amend the complaint was improper; the claims had already been dismissed pursuant to Civ. R. 41(A). We therefore consider the trial court's attempt to correct appеllants' errors in perfecting its appeal to this court a nullity, again leaving the remaining claims between the рarties unadjudicated.
{¶ 13} We hereby vacate our previous September 23, 2008 order denying appellee's motion to dismiss the appeal and dismiss the appeal for lack of a final appealable order.
WALSH, P.J., and POWELL, J., concur. *1