[Cite as Myocare Nursing Home, Inc. v. Hohmann, 2017-Ohio-186.]


                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                    No. 104290




                   MYOCARE NURSING HOME, INC.

                                                        PLAINTIFF-APPELLANT

                                                  vs.

                       WILLIAM HOHMANN, ET AL.
                                                        DEFENDANTS-APPELLEES




                                         JUDGMENT:
                                          DISMISSED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                  Case No. CV-14-823107

       BEFORE: S. Gallagher, J., Keough, A.J., and Kilbane, J.

       RELEASED AND JOURNALIZED: January 19, 2017
ATTORNEY FOR APPELLANT

Stephen D. Dodd
The Stephen D. Dodd Co., L.L.C.
38109 Euclid Avenue
Willoughby, Ohio 44094


ATTORNEYS FOR APPELLEES

David Ross
Matthew B. Barbara
Holly M. Wilson
Reminger Co., L.P.A.
101 West Prospect Avenue
Suite 1400
Cleveland, Ohio 44115
SEAN C. GALLAGHER, J.:

       {¶1} Myocare Nursing Home, Inc., appeals the partial summary judgment entered

in favor of William Hohmann, Kenneth Boukis, and Hohmann, Boukis & Curtis, L.P.A.,

upon Myocare’s legal malpractice claims. For the following reasons, this appeal is

dismissed for the lack of jurisdiction.

       {¶2} Myocare sued its former legal counsel and law firm claiming malpractice.

The attorneys and the law firm filed a counterclaim asserting damages for unpaid fees

based on the same factual allegations. Partial summary judgment was entered in favor of

the defendants, but only resolving the claims advanced in the complaint dealing with

malpractice. The interlocutory judgment was not certified for immediate appeal under

Civ.R. 54(B). Instead, and ostensibly under Civ.R. 41(A)(1)(b), the parties filed a notice

dismissal purporting to dismiss the compulsory counterclaim without prejudice and

expressly conditioned upon the outcome of this appeal. According to the parties, the

counterclaim would “be refiled pending resolution of the appeal in this matter * * * [and]

without regard to any rule or law that might otherwise preclude its refiling.” The sole

question presented is whether the conditional dismissal converts an otherwise

interlocutory judgment or order into a final one capable of being reviewed upon appeal.

       {¶3} An appellate court has jurisdiction only over final judgments or orders. See

Article IV, Section 3(B)(2), Ohio Constitution; Faraj v. Qasem, 8th Dist. Cuyahoga

No.103374, 2016-Ohio-3261, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio
St.3d 17, 20, 540 N.E.2d 266 (1989). Accordingly, an appellate court must determine its

own jurisdiction to proceed before reaching the merits of any appeal. Inwood Village,

Ltd. v. Cincinnati, 1st Dist. Hamilton No. C-110117, 2011-Ohio-6632, ¶ 6, citing State ex

rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684

N.E.2d 72. An order, as is pertinent to this appeal, is considered “final” if it “affects a

substantial right in an action that in effect determines the action and prevents a

judgment.” Id., quoting R.C. 2505.02(B)(1). In the absence of a decision resolving all

claims against all parties, the trial court may decide fewer than all claims, counterclaims,

or third-party claims and make such an order final by certifying that there is “no just

reason for delay.” Id., citing Civ.R. 54(B), Chef Italiano Corp. v. Kent State Univ., 44

Ohio St.3d 86, 88, 541 N.E.2d 64 (1989).

       {¶4} It is beyond dispute that the partial summary judgment entered upon the

complaint was not a final appealable order in and of itself; it adjudicated fewer than all

claims by leaving the compulsory counterclaim unresolved, and the trial court omitted the

Civ.R. 54(B) certifying language.       Without considering the impact of the notice

dismissal, we would undoubtedly lack jurisdiction to consider the partial summary

judgment.

       {¶5} Instead of attempting to comply with the requirements of Civ.R. 54(B), the

parties forged their own path and dismissed the compulsory counterclaim without

prejudice, but expressly conditioned upon resurrecting the compulsory counterclaim

following the resolution of the appeal and regardless of the applicable law. In effect, the
parties have attempted to consent to our jurisdiction where it would otherwise be lacking.

 Civ.R. 41(A)(1)(b) cannot be used to conditionally dismiss a compulsory counterclaim in

order to convert an interlocutory judgment into a final appealable one.

       {¶6} Civ.R. 41(A)(1) provides that a plaintiff may dismiss all claims without order

of the court by filing a stipulated dismissal entry signed by all parties appearing in the

action. The rule, however, does not allow parties to conditionally dismiss claims or

actions, whether by notice or court order, pending the appellate decision over an

interlocutory order. Infinite Sec. Solutions, L.L.C. v. Karam Props. II, 143 Ohio St.3d

346, 2015-Ohio-1101, 37 N.E.3d 1211, ¶ 22. Conditional dismissals, ones subject to

further action given a predicted set of circumstances, cannot be final orders subject to

appeal because such a dismissal by its nature leaves unresolved issues set to arise

following the stated occurrence of the stated condition. Bennett v. Cardarelli, 9th Dist.

Summit No. 16685, 1994 Ohio App. LEXIS 4095, 3 (Sept. 14, 1994).

       {¶7} Further, and although it is generally recognized that parties may voluntarily

dismiss all claims advanced against a particular party with or without prejudice through

Civ.R. 41(A)(1), compulsory counterclaims cannot be dismissed without prejudice subject

to refiling for the purposes of creating a final appealable order.           Compulsory

counterclaims under Civ.R. 13(A) must be litigated in the original action or are forever

barred.    Huntington Natl. Bank v. Dixon, 8th Dist. Cuyahoga No. 101273,

2015-Ohio-1735, ¶ 6. Thus, it is not Civ.R. 41(A) that precludes the dismissal of a

compulsory counterclaim without prejudice but Civ.R. 13(A). Sec. Natl. Bank & Trust
Co. v. Reynolds, 2d Dist. Greene No. 2007 CA 66, 2008-Ohio-4145, ¶ 32. The purpose

of Civ.R. 13(A) is “to promote the resolution of all claims arising from the same

occurrence or transaction as that involved in the original claim.” Stern v. Whitlatch &

Co., 91 Ohio App.3d 32, 36, 631 N.E.2d 680 (9th Dist.1993), citing Lenihan v. Shumaker,

9th Dist. Summit No. 12814, 1987 Ohio App. LEXIS 6693, 3 (May 6, 1987); see

also Harper v. Anthony, 8th Dist. Cuyahoga No. 100082, 2014-Ohio-214, ¶ 17.

      {¶8} We recognize that the affirmative defense of res judicata, the concept

underlying a dismissal of a compulsory counterclaim, is waived if not timely asserted.

State ex rel. Wilson-Simmons v. Lake Co. Sheriff’s Dept., 82 Ohio St.3d 37, 40, 693

N.E.2d 789 (1998). We are not rendering any decision with regard to whether parties

may contract around Civ.R. 13(A) in order to convert an interlocutory order into a final

appealable judgment.    Our focus is on the fact that the dismissal of a compulsory

counterclaim in this case was conditioned upon the resolution of this appeal with the

expectation that the counterclaim would be reasserted immediately after our decision.

      {¶9} Because dismissals of compulsory counterclaims are presumed to be with

prejudice, even if the parties state the dismissal is without prejudice, typically the

dismissal is final because all claims are forever resolved. Conditional dismissals of

compulsory counterclaims, however, are not final orders within in the R.C. 2505.02

framework. See, e.g., McNeish v. Cleveland Clinic Found., 8th Dist. Cuyahoga No.

61292, 1991 Ohio App. LEXIS 4723, 3 (Oct. 3, 1991) (conditional dismissal of action

based on motion by plaintiff was not a final order because it adjudicated less than all
claims); Cracchiolo v. E. Fisheries, Inc., 1st Cir. No. 12-2174, 2012 U.S. App. LEXIS

26931, 1 (Oct. 19, 2012) (conditional dismissal with right to reactivate case in 30 days if

settlement is not finalized is not a final appealable order); Servs. v. Brents, 2d Dist.

Montgomery No. 7915, 1983 Ohio App. LEXIS 12683, 3 (Feb. 23, 1983) (conditional

dismissal only becomes final upon occurrence of the stated event for the purposes of

Civ.R. 60); Harris v. Founder’s Clinic, Inc., 10th Dist. Franklin No. 75AP-37, 1975 Ohio

App. LEXIS 8262, 8 (June 10, 1975); Ohio Cas. Ins. Co. v. Columbia Gas Co., 6th Dist.

Lucas No. 7843, 1975 Ohio App. LEXIS 7008, 1 (Mar. 7, 1975). The conditional

dismissal of a compulsory counterclaim necessarily leaves unresolved issues for future

litigation.

       {¶10} Adherence to procedural rules is meant to guard against piecemeal litigation.

 Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126,

¶ 19. The purpose of Civ.R. 13(A) is to resolve all the parties’ grievances flowing from

the same facts and circumstances in a single action and the conditional dismissal of the

compulsory counterclaim to seek appellate review of an interlocutory decision runs

against that goal.

       {¶11} Although it seems expedient to address the merits of the partial summary

judgment entered against Myocare, if Civ.R. 41(A)(1)(b) was used to conditionally

dismiss compulsory counterclaims by agreement of the parties subject to appellate review

of an interlocutory order, parties could unilaterally circumvent the procedural

mechanisms provided by Civ.R. 54(B) and the trial court’s discretion to employ such
measures whenever the parties seek to challenge any interlocutory judgment. See id. at ¶

20 (despite the apparent economy of allowing parties the option to circumvent rules in

certain cases, bypassing the procedural rules increases the burden in general).         We

decline to expand Civ.R. 41(A)(1) solely for expediency. See, e.g., Pattison (precluding

the use of Civ.R. 41(A)(1)(a) to allow plaintiffs to dismiss some claims against a

defendant in order to convert an interlocutory judgment into a final appealable one).

       {¶12} The Sixth Circuit addressed a similar situation and likewise found that

conditional dismissals are not provided for in the Federal Rules of Civil Procedure, the

decision being persuasive given the factual and procedural similarities. Page Plus of

Atlanta, Inc. v. Owl Wireless, L.L.C., 733 F.3d 658, 659 (6th Cir.2013). In a breach of

contract action, the district court granted partial judgment in favor of the defendant, but

found issues of fact pertaining to the damages asserted in the counterclaim. Id. at 659.

Instead of seeking finality through application of Fed.R.Civ.P. 54(b), the parties

stipulated to the trial court dismissing the counterclaim with the condition that any

reversal of the judgment would afford the defendant the opportunity to reinstate the

counterclaim, and the parties agreed that nothing would preclude the assertion of the

claims based on the “passage of time.” Id. Relying on procedural rules generally

disfavoring piecemeal litigation, the Sixth Circuit concluded that Fed.R.Civ.P. 54(b)

provides the “safety valve” for immediate appeals of partial judgments and the parties’

“home-brewed” conditional dismissal was not provided for in the Federal Rules of Civil

Procedure. Id. “Instead of guaranteeing an end to the litigation, the order guaranteed
that the reserved claim would ‘spring back to life’” following the appeal. Id. at 660.

The appeal was dismissed based on the finding that a conditional dismissal is in essence a

nullity because it is not a final order over which the appellate court has jurisdiction.

       {¶13} As the Sixth Circuit cogently recognized, “[n]ot only must a final decision

leave nothing for the district court to do on the merits, but the finality inquiry should not

present the court of appeals with a moving target. An appellate court must be able to

determine at the time of appeal whether a final, litigation-ending decision has been

entered.” Id. A conditional dismissal typically fails in this regard. Id. This failing is

more prevalent in the current case because the parties expressly indicated what will

happen upon resolution of this appeal — the compulsory counterclaim will be resurrected.

 There is no finality in the parties’ action.

       {¶14} As a result, we must find that the conditional dismissal of the counterclaim

in this case is a nullity. This type of dismissal is not provided for in the Ohio Rules of

Civil Procedure. Parties cannot conditionally dismiss compulsory counterclaims, with

the expectation of refiling those same claims, for the sole purpose of invoking appellate

jurisdiction over a interlocutory judgment — especially in consideration of the fact that

other procedural mechanisms exist for that express purpose. It is a fundamental principle

that neither an appellate court nor the consent of the parties can create jurisdiction where

it is otherwise lacking. State v. Gilbert, 143 Ohio St.3d 150, 2014-Ohio-4562, 35 N.E.3d

493, ¶ 10, citing Colley v. Colley, 43 Ohio St.3d 87, 92, 538 N.E.2d 410 (1989) (Moyer,
J., dissenting) (subject matter jurisdiction cannot be conferred by any agreement or

consent alone but must be based on the law).

       {¶15} We lack jurisdiction over this appeal because the parties failed to properly

invoke the jurisdiction of this court at the time of filing by either complying with Civ.R.

54(B) and R.C. 2505.02 or by filing a proper notice dismissal of the compulsory

counterclaim under Civ.R. 41(A)(1) without any conditions. Because our jurisdiction

was not properly invoked upon filing, we also lack jurisdiction to issue a remand order to

rectify the situation. State ex rel. McGinty v. Eighth Dist. Court of Appeals, 142 Ohio

St.3d 100, 2015-Ohio-937, 28 N.E.3d 88, ¶ 13 (appellate authority to issue any order in

furtherance of an appeal is entirely dependent on the proper invocation of the court’s

jurisdiction upon filing).

       {¶16} Civ.R. 41(A)(1) is unambiguous: parties may dismiss all claims with or

without prejudice. Nothing within that rule provides authority to temporarily dismiss

claims in order to create appellate jurisdiction over interlocutory judgments. The drafters

of the Ohio civil rules anticipated that some interlocutory decisions could alter remaining

claims and provided a safety valve in Civ.R. 54(B), providing appellate jurisdiction over

interlocutory judgments. We cannot create a superfluous judicial exception when the

Ohio civil rules provide the avenue for the parties to seek the desired appeal of an

interlocutory judgment. Although the trial court may have been inclined to amend the

interlocutory judgment to include the required Civ.R. 54(B) language to create a final
judgment under R.C. 2505.02, that decision rests squarely within the trial court’s

discretion and is not a decision for the parties or this panel to unilaterally entertain.

       {¶17} Having found the conditional dismissal to be a nullity and not authorized

by rule, and by implication that the trial court’s order recognizing the notice dismissal

upon the same terms is void, we are compelled to conclude that the compulsory

counterclaim remains pending for final resolution. The interlocutory summary judgment

is not a final appealable order as recognized under R.C. 2505.02(B) and Civ.R. 54(B).

The appeal is dismissed for the want of jurisdiction.

       It is ordered that appellee 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.



SEAN C. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
MARY EILEEN KILBANE, J., CONCUR
