Gruenspan v. Thompson, Unpublished Decision (10-12-2000)

• Court: Ohio Court of Appeals
• Decided: October 12, 2000
• Docket: No. 77276.
• Status: Unpublished

Opinion

JOURNAL ENTRY and OPINION Appellant Charles Gruenspan, et al. appeals the trial court's decision granting summary judgment in favor of appellees Alexander Jurczenko, Cuyahoga Metropolitan Housing Authority, James Guest, Jr., Kelley, McCann Livingstone, Stephen O'Brien, Sylvester Summers, National City Bank, Seikel Koly Co., and Klaiman, Bush Associates in Gruenspan's action for attorney fees. Gruenspan assigns the following ten errors for our review:

I. THE TRIAL COURT ERRED IN GRANTING LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT FOR DEFENDANT ALEXANDER JURCZENKO.

II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT ALEXANDER JURCZENKO.

III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT CUYAHOGA METROPOLITAN HOUSING AUTHORITY.

IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT JAMES GUEST, JR.

V. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT KELLEY McCAN LIVINGSTONE.

VI. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT STEPHEN M. O'BRIEN.

VII. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT SYLVESTER SUMMERS.

VIII. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT NATIONAL CITY BANK.

IX. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT SEIKEL KOLY CO.

X. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT KLAIMAN, BUSH ASSOCIATES.

After reviewing the record and the legal arguments of the parties, we dismiss this appeal for lack of jurisdiction. The apposite facts follow.

Charles Gruenspan filed a complaint for attorney fees against the following defendants: Alexander Jurczenko, Cuyahoga Metropolitan Housing Authority, James Guest, Jr., Kelley, McCann Livingstone, Stephen O'Brien, Sylvester Summers, National City Bank, Seikel Koly Co., Klaiman, Bush Associates, Robert Thompson, Dolores Thompson, Dynes Corporation, TomRob Inc., DelRob Inc., Line A, Supreme Materials, Inc., and R G Thompson Associates, Inc.

Robert Thompson, Dolores Thompson, Dynes Corporation, TomRob Inc., DelRob Inc., Line A, Supreme Materials, Inc., and R G Thompson Associates, Inc. filed a counterclaim against Gruenspan for legal malpractice.

The court also granted summary judgment in favor of Gruenspan on the legal malpractice counterclaim. The trial court granted a motion for summary judgment filed by CMHA, James Guest, Jr., Kelley, McCann Livingstone, Stephen O'Brien, Sylvester Summers, National City Bank, Seikel Koly Co., and Klaiman Bush Associates. Thereafter, Gruenspan filed a Notice Of Dismissal Without Prejudice which contained the following statement:

Plaintiff Charles Gruenspan hereby gives notice, pursuant to Rule 41(A)(1)(a) of the Ohio Rules of Civil Procedure, that this case is dismissed without prejudice.

Thereafter, Gruenspan filed this appeal.

A voluntary dismissal by a plaintiff operates to nullify the claims brought against the dismissed party and leaves the parties as if the action was never filed. Ohio Leitina Co. v. City of Cleveland (June 22, 2000), Cuyahoga App. No. 76441, unreported, citing Denham v. New Carlisle (1999), 86 Ohio St.3d 594, 596, 716 N.E.2d 184, 186; DeVille Photography, Inc. v. Bowers (1959), 169 Ohio St. 267, 272, 159 N.E.2d 443,447.

In this case, the trial court granted summary judgment in favor of several of the named defendants. However, at the time of that order, the action remained pending as to eight other defendants.¹ The trial court's order did not specify that there was no just cause for delay. Accordingly, the summary judgment order was not final. See Civ.R. 54(B). Gruenspan's subsequent dismissal of his case dissolved the order of summary judgment from which Gruenspan now seeks to appeal. In Niesen v. Firelands Rural Elec. Corp. (1997), 123 Ohio App.3d 104, 106,703 N.E.2d 807, 808, the court held that a voluntary dismissal, without prejudice, dissolves all interlocutory orders made by the court in that action including a partial summary judgment. See, also, State ex Rel. Stern v. V Cos. (July 28, 1999), Jefferson App. No. 97 JE 71, unreported.

Because Gruenspan voluntarily dismissed his entire case, this court lacks jurisdiction to consider his appeal. Accordingly, this appeal is dismissed.

This appeal is dismissed.

It is ordered that appellees recover from appellants their costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rule of Appellate Procedure.

JOHN T. PATTON, P.J., and MICHAEL J. CORRIGAN, J., CONCUR.

_________________________ PATRICIA ANN BLACKMON JUDGE¹ Gruenspan's claim remained pending against Robert Thompson, Dolores Thompson, Dynes Corporation, TomRob Inc., DelRob Inc., Line A, Supreme Materials, Inc., and R G Thompson Associates, Inc.