Mahoney v. HB Emp. Servs., L.L.C.

2011 Ohio 5186

• Court: Ohio Court of Appeals
• Decided: October 6, 2011
• Docket: 96603
• Status: Published

Opinion

[Cite as Mahoney v. HB Emp. Servs., L.L.C., 2011-Ohio-5186.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96603

GERALDINE MAHONEY

PLAINTIFF-APPELLANT

vs.

HB EMPLOYEE SERVICES, L.L.C., ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-717684

BEFORE: E. Gallagher, J., Blackmon, P.J., and Sweeney, J. 2

RELEASED AND JOURNALIZED: October 6, 2011

ATTORNEYS FOR APPELLANT

Amy S. Glesius Matthew D. Besser Bolek Besser Glesius LLC Monarch Centre, Suite 302 5885 Landerbrook Drive Cleveland, Ohio 44124

ATTORNEY FOR APPELLEES

Kathryn W. Pascover Ford & Harrison LLP 795 Ridge Lake Boulevard Suite 300 Memphis, Tennessee 38120

EILEEN A. GALLAGHER, J.:

{¶ 1} Geraldine Mahoney appeals from the trial court’s grant of

defendants’ Horizon Bay Employee Services, L.L.C., and Horizon Bay

Manager’s (hereinafter “Horizon Bay”) motion for summary judgment on her

claim of negligent retention, training, and supervision. Mahoney argues

that the trial court erred when it determined that her claim was untimely.

For the reasons that follow, we dismiss for lack of a final appealable order. 3

{¶ 2} Mahoney was formerly employed as an administrative assistant

at Woodside Village, a retirement community in Bedford, Ohio owned and

operated by Horizon Bay. In October 2005, Kerri Bemus became the

Woodside Village office manager and Mahoney’s supervisor. Mahoney

claimed that shortly after becoming her supervisor, Bemus began treating

Mahoney less favorably than substantially younger employees because of

Mahoney’s age. Mahoney alleged that Bemus criticized her, denied her

breaks, denied her the opportunity to attend administrative meetings, and

made negative comments about her age.

{¶ 3} On May 16, 2008, Horizon Bay terminated Mahoney’s

employment. Mahoney alleged that her termination and Bemus’s

discriminatory conduct was the result of Horizon Bay’s and Jill Risner’s,

Bemus’s supervisor, failure to sufficiently and/or effectively train Bemus on

equal employment opportunity laws and that Horizon Bay failed to exercise

reasonable care in retaining, training and/or supervising Bemus in her

capacity as a managerial employee. On February 5, 2010, Mahoney

filed the instant lawsuit against Horizon Bay, Bemus, Risner, and

CallSource Incorporated alleging age discrimination, aiding and abetting age

discrimination, negligent retention, training, and supervision, and unlawful

wiretapping. Claims one, two, and four applied to all four defendants while 4

Mahoney’s claim of negligent retention, training, and supervision applied

only to Horizon Bay. On April 30, 2010, Horizon Bay, Bemus, and Risner

filed a motion to dismiss, or alternatively, a motion for summary judgment

on all claims. Specifically, the defendants claimed the following: Mahoney’s

claims of age discrimination and aiding and abetting age discrimination

must fail because Mahoney elected to pursue those charges with the Equal

Employment Opportunity Commission; Mahoney’s claim of unlawful

wiretapping must fail because an exception to the wiretapping statute

applied; and lastly, Mahoney’s claim of negligent retention, training, and

supervision was untimely. On August 27, 2010, the trial court granted the

defendants’ motion for summary judgment.

{¶ 4} On September 28, 2010, Mahoney voluntarily dismissed, without

prejudice, three of the four claims against the only-remaining defendant,

CallSource Inc. Only Mahoney’s claim of aiding and abetting age

discrimination remained. On October 15, 2010, CallSource filed a motion to

dismiss the remaining claim, which the trial court granted on March 2, 2011.

{¶ 5} Mahoney now appeals the trial court’s dismissal of her claim of

negligent retention, training, and supervision, which she alleges became a

final order when the trial court dismissed the last remaining claim against

CallSource Inc. on March 2, 2011. 5

{¶ 6} However, as an initial matter, we find that the judgment from

which Mahoney appeals is not a final appealable order. Ohio law provides

that appellate courts have jurisdiction to review only final orders or

judgments. Section III(B)(2), Article IV, Ohio Constitution; R.C. 2505.02.

If an order is not final and appealable, an appellate court has no jurisdiction

to review the matter.

{¶ 7} In Pattison v. W.W. Grainger, 120 Ohio St.3d 142,

2008-Ohio-5276, 897 N.E.2d 126, the Ohio Supreme Court determined that

when a plaintiff has asserted multiple claims against one defendant, and

some of those claims have been ruled upon but not been converted into a

final appealable order, a plaintiff may not create a final order by voluntarily

dismissing without prejudice the remaining claims against the same

defendant.

{¶ 8} In Pattison, the Supreme Court interpreted the language of

Civ.R. 41(A)(1), which states “a plaintiff, without order of court, may dismiss

all claims asserted by that plaintiff against a defendant by * * * filing a

notice of dismissal at any time before the commencement of trial.” The

court interpreted this language to find that dismissal of a single claim among

others against the same defendant is not permitted by Civ.R. 41. See

Denham v. City of New Carlisle (1999), 86 Ohio St.3d 594, 716 N.E.2d 184. 6

The court further stated:

“The language used in both Denham and Civ.R. 41(A)(1) expressly states that the rule can be used to dismiss ‘all claims’ against a single defendant. It does not allow for the dismissal of a portion of the claims against a certain defendant. Civ.R. 41(A) applies to discrete parties, not discrete causes of action. In Denham, this court wrote that a Civ.R. 41(A) dismissal ‘render[s] the parties as if no suit had ever been brought, but only with respect to the parties dismissed.’ Denham, 86 Ohio St.3d at 597, 716 N.E.2d 184. However, when used as in this case to dismiss only certain causes of action, Civ.R. 41(A) does not place the defendant in the position he would be in ‘if no suit had ever been brought,’ since the case against the defendant continues in the court of appeals.”

{¶ 9} Although the procedural facts in the instant case are

distinguishable from the procedural history of Pattison, we find the Ohio

Supreme Court’s logic equally applicable. In the present case, Mahoney

voluntarily dismissed three out of the four causes of action against

CallSource Inc. pursuant to Civ.R. 41(A)(1). Less than one month later, the

trial court granted CallSource’s motion to dismiss the remaining claim.

Accordingly, this case presents the reverse of the facts as contained in

Pattison. Nonetheless, the Supreme Court’s holding that Civ.R. 41(A)(1)

cannot be used to dismiss partial claims against a single defendant applies

equally to this case. To allow otherwise would permit piecemeal litigation

and piecemeal appeals, which are disfavored in the law. Borchers v.

Winzeler Excavating Co. (Apr. 10, 1992), Montgomery App. No. 13297;

Pattison. 7

{¶ 10} Thus, we conclude that Mahoney’s use of Civ.R. 41(A)(1) to

partially dismiss CallSource Inc. from the instant lawsuit does not create a

final appealable order when the trial court later dismisses with prejudice,

the last remaining claim against that same defendant. See, also, Civ.R.

41(A)(1); Pattison; Borchers; and Savage v. Cody-Zeigler, Inc., Athens App.

No. 06CA5, 2006-Ohio-2760.

{¶ 11} For the foregoing reasons, this appeal is hereby dismissed.

It is ordered that appellees recover from appellant costs herein taxed.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

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

Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, P.J., and JAMES J. SWEENEY, J., CONCUR

Appendix

Assignment of Error:

“I. Even though Geraldine Mahoney filed her negligent retention, training and supervision claim within two years of at least one of the 8

tortious acts she alleged against her former employer and supervisors, the trial court dismissed her claim as untimely. It erred in doing so.”