[Cite as F & R White Farm, L.L.P. v. Kemp, 2020-Ohio-1364.]




            IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                 BELMONT COUNTY

                                  F & R WHITE FARM, LLP,

                                        Plaintiff-Appellant,

                                                   v.

                                  KENNETH R. KEMP et al.,

                                     Defendants-Appellees.


                       OPINION AND JUDGMENT ENTRY
                                       Case No. 19 BE 0038


                                   Civil Appeal from the
                       Court of Common Pleas of Belmont County, Ohio
                                   Case No. 19 CV 0091

                                      BEFORE:
                Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.


                                          JUDGMENT:
                                    Vacate the Judgment Entry.


 Atty. Tracey Lancione Lloyd, Lancione, Lloyd & Hoffman Co. LPA, 151 W. Main Street,
 St.Clairsville, Ohio 43950 for Plaintiff-Appellant and

 Atty. Todd M. Kildow, Emens & Wolper Law Office Co., LPA, 250 West Main Street,
 Apt. A, St. Clairsville, Ohio 43950 for Defendants-Appellees.
                                                                                          –2–


                                    Dated: April 3, 2020


 Robb, J.

       {¶1}   Plaintiff-Appellant F & R Farm, LLP appeals the decision of the Belmont
County Common Pleas Court granting Defendants-Appellees Kenneth Kemp, Mary
Barnes, James Kemp, Kimberly Stephen, Kathy Stephen, Beth McGee, Robert Kemp,
Melvin Kemp, Shirley Jenewein, Sandra Wees, Barbara Wright, Patricia Falconer,
Charles Kemp, Penny Morri, Stephen Kemp, Cindy Mako, Carol Earliwine, Bettie Adcock,
Keith Shultz, Jr., Jason Shultz, Bernice Chase, Patti Shultz, Lida Michelle Davidson, and
Terry A. Davidson’s (collectively referred to as the Shultz Heirs) motion to dismiss or in
the alternative motion for summary judgment and holding Appellant’s notice of voluntary
dismissal under Civ.R. 41(A) was applicable to only Defendants-Appellees Rice Drilling
D LLC, EQT Production Co., and Gulfport Energy Corp. The preliminary issue in this
case is the affect a Civ.R. 41(A) notice of voluntary dismissal of the causes of action
against all defendants has on a case when it is filed after a trial court orally grants a motion
to dismiss/motion for summary judgment as to some, but not all defendants, journalizes
that decision as to the motion to dismiss, but the judgment entry indicating the case shall
proceed against the non dismissed defendants, does not include Civ.R. 54 (B) “no just
reason for delay” language, and includes language that the order is “subject to further
Order of the Court.”
       {¶2}   For the reasons explained below, the trial court’s judgment entry after the
Civ.R. 41(A) notice of voluntary dismissal is a nullity. In that judgment entry the trial court
indicated Appellees Shultz Heirs’ motion to dismiss/motion for summary judgment was
already granted and is now final since Appellant filed a voluntary dismissal and the
voluntary dismissal does not apply to Appellees Shultz Heirs. Given the case law, the
voluntary dismissal dismissed all parties, including Appellees Shultz Heirs. The order
issued by the trial court granting the motion to dismiss Appellees Shultz Heirs was an
interlocutory order given the language in the judgment entry. Therefore, the trial court
was without jurisdiction to issue the second judgment entry indicating it granted the
motion to dismiss/motion for summary judgment and the judgment is a final order with the
voluntary dismissal of the remaining defendants. Accordingly, the second judgment entry


Case No. 19 BE 0038
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granting the motion for summary judgment and motion to dismiss is vacated.                The
voluntary dismissal was self-executing and dismissed all claims against all defendants.
                                       Statement of the Case
       {¶3}   On March 25, 2019, Appellant filed a complaint against Appellees seeking
to quiet title to the mineral interests underlying approximately 150 acres in Belmont
County, Ohio. Appellant asserted causes of action sounding in slander of title, breach of
contract, and a declaratory judgment action.
       {¶4}   Appellees Rice, EQT, and Gulfport filed an answer on May 13, 2019.
Appellees Shultz Heirs filed their answer and motion to dismiss on May 22, 2019. They
asserted in the motion to dismiss that Appellant failed to state a claim upon which relief
could be granted. They claimed, based on recent Seventh District Court of Appeals case
law (Soucik and Mellott, which were decided based on Christman and Holdren), that a
reference to severed oil and gas in the alleged root of title prohibits that deed from being
considered to be a root of title. They further asserted that they, Appellees Shultz Heirs,
filed a timely preservation claim in response to the notice of abandonment that was filed
by the Appellant. Appellees Shultz Heirs also reference the fact that Appellant claims
ownership of the oil and gas interest but failed to attach copies of two deeds in which it
conveyed away its purported interest to the Freddie White Revocable Trust, and the
Roger L. White and Ruth E. White Revocable Trust. Thus, Appellees Shultz Heirs also
raise a standing issue to bring the suit. It is of significance to note that at the end of this
motion, Appellees Shultz Heirs stated that the motion to dismiss could also be considered
a motion for summary judgment.
       {¶5}   Appellant filed a motion in opposition to the motion to dismiss claiming the
facts in the case are distinguishable from Soucick v. Gulfport, 2019-Ohio-491. As to the
claim about transferring the interest to the trusts, Appellant asserted if the court deemed
the trustees necessary parties, they could be joined.
       {¶6}   A hearing was held on the motion to dismiss on July 12, 2019. Counsel for
Appellant and Appellant were not present at the hearing. The record indicates counsel
was in the courthouse and the court had court personnel look for her, but could not find
her. 7/12/19 Tr. 3. At the conclusion of the hearing, the trial court granted Appellees
Shultz Heirs’ motion to dismiss or in the alternative motion for summary judgment. The



Case No. 19 BE 0038
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trial court stated that its ruling was based both on the “failure to state a claim upon which
relief can be granted and regarding summary judgment.” 7/12/19 Tr. 9. The court asked
counsel for Appellees Shultz Heirs to prepare a judgment entry and told counsel to submit
it to counsel for Appellant prior to submitting it to the court. 7/12/19 Tr. 9. The court also
indicated that the case continues as to Appellees EQT, Rice Drilling, and Gulfport.
7/12/19 Tr. 9.
       {¶7}      At 12:25 pm on July 12, 2019, the trial court issued a judgment entry stating,
“The Motion to Dismiss is hereby sustained.            The Complaint is hereby dismissed
regarding Defendants Schultz Heirs. The case shall proceed against Defendants EQT,
Rice Drilling, and Gulfport * * *. 7/12/19 J.E. The last sentence of the judgment entry
states, “All subject to further Order of the Court.” 7/12/19 J.E.
       {¶8}      Approximately 2 hours later at 3:45 pm, Appellants filed a notice of voluntary
dismissal stating, “Pursuant to Civ.R. 41(A)(1)(a), Plaintiff by and through counsel, hereby
voluntarily dismisses, without prejudice, the cause of action against all Defendants in the
above captioned matter.” 7/12/19 Notice of Voluntary Dismissal.
       {¶9}      On July 18, 2019 the trial court issued the final judgment entry which was
prepared by counsel for Appellees Shultz Heirs. The standards of review for motions to
dismiss and summary judgment motions are set forth in the judgment entry. The trial
court sustained Appellees Shultz Heirs’ motion to dismiss and granted summary judgment
in Appellees Shultz Heirs’ favor. The last three paragraphs of the judgment state:

       IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this is a
       Final Appealable Order for which there is no just cause for delay with regard
       to the dismissal of all of Plaintiff’s claims against the Shultz Heirs; and

       IT IS FINALLY ORDERED, ADJUDGED AND DECREED that subsequent
       to the Court’s Journal Entry sustaining the Shultz Heirs Motion Plaintiff filed
       a Notice of Voluntary Dismissal; therefore, all claims against EQT
       Production Company, Rice Drilling D, LLC, and Gulfport Energy
       Corporation are dismissed and this case is ended.

       FINAL ORDER. THERE IS NO JUST REASON FOR DELAY.



Case No. 19 BE 0038
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7/18/19 J.E.
       {¶10} Prior to the trial court issuing that decision, the proposed judgment entry
was submitted to counsel for Appellant. On July 16, 2019, Appellant objected to the
proposed Judgment Entry arguing the voluntary dismissal is self-executing and
completely terminates the possibility of further action on the merits of the case. Since no
final ruling was made on the motion to dismiss/motion for summary judgment, the trial
court was without authority after the notice of voluntary dismissal was filed to issue a final
ruling on those issues.
       {¶11} Appellees Shultz Heirs filed a motion in opposition to the objections
asserting the trial court ruled on the motion to dismiss prior to the filing of the notice of
voluntary dismissal. Thus, they contended the trial court could issue the ruling on the
motion to dismiss. 7/17/19 Motion.
       {¶12} Finding no merit with the objections, the trial court signed the July 18, 2019
proposed judgment entry.
       {¶13} Appellant filed a motion for reconsideration arguing the voluntary dismissal
did not permit the trial court to issue the July 18, 2019 proposed judgment entry. It further
argued summary judgment was not appropriate given the facts pled; it contended it was
entitled to relief under the Marketable Title Act. 7/30/19 Motion.
       {¶14} Appellees Shultz Heirs filed a motion in opposition to the motion for
reconsideration arguing a motion for reconsideration from a final order is a nullity. 8/1/19
Motion.
       {¶15} Appellant filed an appeal on August 14, 2019 from the July 18, 2019
judgment entry.
                                     First Assignment of Error
       “The trial court erred in filing a judgment journal entry after Appellant had filed a
voluntary dismissal pursuant to Ohio Civ.R. 41(A) as the case was ended.”
       {¶16} This assignment of error addresses the implication of Appellant’s notice of
voluntary dismissal after the trial court issued its July 12, 2019 Judgment Entry, but before
it issued the July 18, 2019 Judgment Entry.
       {¶17} As discussed above, a hearing was held on Appellees Shultz Heirs’ motion
to dismiss/motion for summary judgment. At the hearing, the trial court granted the motion



Case No. 19 BE 0038
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to dismiss/motion for summary judgment and ordered counsel for Appellees Shultz Heirs
to prepare a judgment entry. Counsel for Appellant was not present at this hearing, but
was in the courthouse and court personnel was unable to locate her. Following the
hearing, the trial court issued a judgment entry sustaining Appellees Shultz Heirs motion
to dismiss and indicated the case would proceed against Appellees EQT, Rice Drilling,
and Gulfport. Rather than add Civ.R. 54(B) language and render the ruling on the motion
to dismiss a final order, the court stated, “All subject to further Order of Court.” 7/2/18
J.E.   Within hours of that decision being filed, Appellant filed a notice of voluntary
dismissal of the entire case against all defendants. Following that notice, the trial court
issued a final judgment granting the motion to dismiss/motion for summary judgment as
to Appellees Shultz Heirs, indicting the voluntary dismissal dismissed the complaint as to
the remaining defendants – Appellees EQT, Rice Drilling, and Gulfport. That judgment
entry contained Civ.R. 54(B) language.
       {¶18} In 1999, the Ohio Supreme Court was asked to decide whether “a decision
of a trial court 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 Civ.R. 41(A)(1).” Denham v. New
Carlisle, 86 Ohio St.3d 594, 716 N.E.2d 184 (1999). In Denham, summary judgment was
granted for one defendant, New Carlisle, and then the plaintiff filed a notice of voluntary
dismissal of the remaining defendants. Id. The plaintiff Denham then appealed the grant
of summary judgment to the appellate court. Defendant New Carlisle argued that a Civ.R.
41 dismissal leaves the parties as if no action had been brought and thus, the notice of
dismissal nullified the trial court’s summary judgment decision for it and divested the court
of appeals of jurisdiction to hear the appeal.
       {¶19} In analyzing the issue, the Supreme Court stated the long standing legal
principle that an order is a final and appealable order only if it meets the requirements of
both Civ.R. 54(B) and R.C. 2505.02, the final appealable order statute. Id. at 596. The
Court concluded that the grant of summary judgment met the requirements of R.C.
2505.02 and the issue was whether it met the requirements of Civ.R. 54(B). Id. The
Court concluded that the language of Civ.R. 41 means, “a Civ.R. 41 dismissal dismisses
all claims against the defendant designated in the dismissal notice and does not apply to



Case No. 19 BE 0038
                                                                                       –7–


defendants named in the complaint who are not designated in the notice of dismissal.”
Id. at 597. Therefore, “[b]ecause we hold that a voluntary dismissal pursuant to Civ.R.
41(A) renders the parties as if no suit had ever been filed against only the dismissed
parties, the trial court’s summary judgment decision meets the requirements of Civ.R.
54(B).” Id. Consequently, although the summary judgment order when issued was an
interlocutory order because it did not dispose of all claims and parties and no Civ.R. 54(B)
language was added to the entry, the dismissal of all other defendants converted the
interlocutory order into a final order in compliance with Civ.R. 54(B) because there were
no other claims or parties.
       {¶20} The case at hand is distinguishable from Denham. The notice of voluntary
dismissal filed here applied to all defendants including Appellees Shultz Heirs. Ohio
Appellate Courts have held that this distinguishing factor renders a prior interlocutory
summary judgment order a nullity. When an entire action is dismissed without prejudice
pursuant to Civ.R. 41(A), as opposed to only certain claims or parties, interlocutory orders
which do not contain Civ.R. 54(B) language that there is no just reason for delay are
dissolved and rendered a nullity. Davis v. Dungeons of Delhi, 2019-Ohio-1457, 135
N.E.3d 469, ¶ 18 (1st Dist.); Fisher v. Mallik, 2015-Ohio-1008, 30 N.E.3d 245, ¶ 18 (10th
Dist.); Bradley v. Dollar Gen., 2012-Ohio-3700, 975 N.E.2d 515, ¶ 42 (5th Dist.); Fox v.
Kraws, 11th Dist. Lake No. 2009-L-157, 2009-Ohio-6860, ¶ 14-16; Hutchinson v. Beazer
East, Inc., 8th Dist. Cuyahoga Nos. 86635 and 87897, 2006-Ohio-6761, ¶23; Fairchilds
v. Miami Valley Hosp., Inc., 160 Ohio App.3d 363, 2005-Ohio-1712, 827 N.E.2d 381, ¶
38 (2d Dist.); Blankenship v. Wadsworth-Rittman Area Hosp., 9th Dist. Medina No.
02CA0062-M, 2003-Ohio-1288, ¶ 17; Toledo Heart Surgeons v. The Toledo Hosp., 6th
Dist. Lucas No. L-02-1059, 2002-Ohio-3577, ¶ 28.
       {¶21} We have not previously addressed the specific issue before us. However,
we have stated, “when the plaintiff voluntarily dismisses his remaining claims against a
defendant after partial summary judgment was entered for that defendant, there is no
remaining order that one could appeal; the prior orders were nullified and the action is as
if it was never brought.” Latronica v. Western Southern Life, Inc., 7th Dist. Mahoning No.
04 MA 227, 2005-Ohio-2935, ¶ 21.




Case No. 19 BE 0038
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       {¶22} The Ohio Supreme Court has not determined whether the appellate courts’
analyses and conclusions are correct. The Court had previously accepted the issue for
review, but dismissed it as improvidently accepted. Fairchilds v. Miami Valley Hospital,
109 Ohio St.3d 1229, 2006-Ohio-3055, 849 N.E.2d 292. Two justices dissented to the
dismissal and in Justice Lundberg Stratton’s dissent she explained that it was of her
opinion that “plaintiffs cannot nullify or dissolve a summary judgment decision, albeit
interlocutory, by filing a Civ.R. 41(A) voluntary dismissal.” Id. at ¶ 2. She further added:

       This court intends to refer this matter to the Supreme Court's Commission on the
       Rules of Practice and Procedure in light of the potential for abuse of Civ.R. 41(A).
       I agree that a rule amendment may be necessary. However, I believe that we
       should take action now to stop this abusive maneuvering by parties who want a
       second bite at the apple following an unfavorable interlocutory decision. A party
       who believes that it was unfairly denied discovery to defend a motion for summary
       judgment may appeal from that decision, but that party is not entitled to refile the
       entire case.

       In Denham v. New Carlisle (1999), 86 Ohio St.3d 594, 716 N.E.2d 184, we
       sanctioned a Civ.R. 41(A) voluntary dismissal of fewer than all of the defendants
       in a case, and we held that that dismissal caused an interlocutory summary
       judgment order in favor of the remaining defendant to become final and
       appealable. I would hold that the plaintiffs' voluntary dismissal applied to Landis
       only and extend the reasoning of Denham to finalize the summary judgment in
       favor of MVH. Therefore, I respectfully dissent.

Id. at ¶ 9-10.
       {¶23} However, following that decision, Civ.R. 41(A) has not been amended.
Accordingly, there is no indication that the appellate courts’ decisions regarding this
matter have been altered by either a rule amendment or a pronouncement from the Ohio
Supreme Court.
       {¶24} Accordingly, given the case law, the trial court was without jurisdiction to
issue its July 18, 2019 judgment granting Appellees Shultz Heirs’ motion to
dismiss/motion for summary judgment. The July 12, 2019 judgment entry granting the


Case No. 19 BE 0038
                                                                                        –9–


motion to dismiss as to Appellees Shultz Heirs and indicating the case would proceed
against Appellees EQT, Rice Drilling, and Gulfport was an interlocutory order. The order
specifically stated, “All subject to further Order of the Court.” That language is not final
order language. Therefore, when Appellant filed a notice of voluntary dismissal of all
defendants hours after the July 12, 2019 order, the interlocutory order granting the motion
to dismiss was dissolved and rendered a nullity.
       {¶25} Admittedly, cases addressing this issue typically deal with interlocutory
summary judgment orders. However, the Eighth Appellate District has explained that “a
dismissal for failure to state a claim upon which relief can be granted to a party while
claims against other parties are still pending, and which does not contain Civ.R. 54(B)
language that there is no just reason for delay, is not appealable when the entire action
is later dismissed without prejudice pursuant to Civ.R. 41(A). Rather, such order is
dissolved and has no res judicata effect.” Cleveland Indus. Square, Inc. v. Dzina, 8th
Dist. Cuyahoga No. 85336, 2006-Ohio-1095, ¶ 41, quoting Toledo Heart Surgeons.
       {¶26} For those reasons this court concludes that the trial court was without
jurisdiction to issue the July 18, 2019 judgment entry granting Appellees’ Shultz Heirs’
motion to dismiss/motion for summary judgment. The July 12, 2019 order granting the
Shultz Heirs’ motion to dismiss was an interlocutory order. The July 12, 2019 notice of
voluntary dismissal filed by Appellant dissolved the July 12, 2019 order and rendered it a
nullity. This court finds merit with the first assignment of error.
                                   Second Assignment of Error
       “The trial court improperly granted a 12(B)(6) motion for failure to state a claim for
which relief could be granted.”
       {¶27} Our resolution of the first assignment of error renders this assignment of
error moot. We will not address the merit arguments raised in this assignment of error.
                                     Third Assignment of Error
       “The trial court improperly granted summary judgment in favor of Appellees Shultz
Heirs after granting a 12(B)(6) motion for failure to state a claim for which relief could be
granted.”
       {¶28} Our resolution of the first assignment of error renders this assignment of
error moot. We will not address the merit arguments raised in this assignment of error.



Case No. 19 BE 0038
                                                                                      – 10 –


                                            Conclusion
       {¶29} This court finds merit with the first assignment of error for the reasons
expressed above; the trial court’s July 18, 2019 decision is vacated. The voluntary
dismissal is effective as to all defendants and renders the interlocutory July 12, 2019 order
a nullity. This ruling renders the remaining two assignments of error moot.



Donofrio, J., concurs.

D’Apolito, J., concurs




Case No. 19 BE 0038
[Cite as F & R White Farm, L.L.P. v. Kemp, 2020-Ohio-1364.]




         For the reasons stated in the Opinion rendered herein, it is the final judgment
 and order of this Court that the Court of Common Pleas of Belmont County, Ohio trial
 court’s July 18, 2019 judgment entry is vacated. Costs to be taxed against the
 Appellees.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.

                                     NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
