[Cite as Poirier v. Tipp City Process Equip. Co., 2018-Ohio-1945.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 RICK POIRIER                                           :
                                                        :
         Plaintiff-Appellant                            :    Appellate Case No. 27697
                                                        :
 v.                                                     :    Trial Court Case No. 2016-CV-2848
                                                        :
 PROCESS EQUIPMENT CO. OF TIPP                          :    (Civil Appeal from
 CITY                                                   :    Common Pleas Court)
                                                        :
         Defendant-Appellee                             :


                                                ...........

                                               OPINION

                              Rendered on the 18th day of May, 2018.

                                                ...........

WAYNE E. WAITE, Atty. Reg. No. 0008352, 4407 Walnut Street, Suite 210, Dayton, Ohio
45440
      Attorney for Plaintiff-Appellant

RICHARD A. TALDA, Atty. Reg. No. 0023395, and JENNIFER R. GREWE, Atty. Reg.
No. 0092329, 33 West First Street, Suite 600, Dayton, Ohio 45402
      Attorneys for Defendant-Appellee

                                              .............




WELBAUM, P.J.
                                                                                           -2-




       {¶ 1} This case is before us on the appeal of Plaintiff-Appellant, Rick Poirier, from

a summary judgment rendered in favor of Defendant-Appellee, Process Equipment Co.

of Tipp City (“PECo”). In support of his appeal, Poirier contends that the trial court erred

in striking his Civ.R. 41(A)(1) notice of dismissal without prejudice, which was filed after

the trial court had granted summary judgment to PECo.

       {¶ 2} We conclude that the trial court lacked jurisdiction over the case once Poirier

filed a notice of dismissal under Civ.R. 41(A)(1). Although the trial court had issued a

summary judgment decision in PECo’s favor, the decision was interlocutory and was not

a final order, because the issue of attorney fees had not been resolved and the trial court

had not included a Civ.R. 54(B) certification in its decision. Since the decision was

interlocutory, Poirier was able to file a notice of dismissal under Civ.R. 41(A)(1). Once

the notice of dismissal was filed, the action was as if it had never been filed, and the trial

court erred in striking Poirier’s notice of dismissal. Accordingly, the judgment of the trial

court will be reversed, and this cause will be remanded for further proceedings.



                              I. Facts and Course of Proceedings

       {¶ 3} On June 8, 2016, Poirier filed a complaint against PECo for monetary

damages and equitable relief, based on PECo’s alleged breach of Poirier’s

manufacturer’s representative agreement. The complaint alleged four causes of action

against PECo: breach of contract; conversion of fees paid by Poirier’s clients; violation of

the statutory duty in R.C. 1335.11 when PECo failed to pay Poirier’s commissions from

2013 to 2016; and unjust enrichment.           As a remedy, Poirier asked to be paid
                                                                                       -3-


commissions in excess of $25,000, punitive damages, attorney fees, and any other relief

the court deemed appropriate.

      {¶ 4} The facts in the case were undisputed. According to the complaint, PECo

and Poirier entered into a manufacturer’s representative agreement in mid-August 2013.

Under the agreement, which was attached to the complaint as Exhibit 1, PECo appointed

Poirier to act as a non-exclusive or sales-specific sales representative for customers and

prospective customers described in Ex. A (the Territory). The specified territory was

Fanuc Robotics in Detroit, Michigan, and Spacex, in Los Angeles, California.

      {¶ 5} Poirier was to be paid commission on all products sold within the Territory

and was to be paid compensation based entirely on commission. Under the agreement,

Poirier was to be paid commission on actual amounts that were collected within 30 days

after PECo rendered an invoice to a customer and received payment. The commission

schedule provided for a certain percentage of commission for each production purchase

order, and further provided for spilt commissions. Concerning split commissions, the

agreement stated that “[i]n the event that two or more representatives work in

collaboration with PECo, commission will be spilt in accordance with the effort of the

Representatives. PECo will make the determination of the level of activity shown by the

representative.” Complaint, Ex. C attached to Ex. 1, p. 2.

      {¶ 6} The agreement also contained a termination clause, which provided that:

             X. Termination. The Agreement shall take effect as of the day and

      year written above and shall continue in force until terminated as hereinafter

      provided.   After the effective date of this Agreement, either party may

      terminate this Agreement with or without cause upon 30 days written notice
                                                                                        -4-


       (hereafter referred to as the “Notice Period”), sent by certified mail, return

       receipt requested, to the other party. During said 30 day Notice Period,

       this Agreement shall continue in full force and effect in all respects and may

       not be shortened without the express written consent of both parties. In

       the event of termination, the Company shall also pay to the Representative

       "Post Termination Commissions" on orders received after the date of such

       written notice from quotations submitted to accounts located in the

       Representative's territory prior to termination. The Company will honor

       such orders for a period of 6 months after the date of written notice of

       termination.   During such Post Termination Period, the Representative

       shall not directly or indirectly pursue or have contacts with any other firms

       that compete with the Company.

Complaint, Ex. 1, p. 3.

       {¶ 7} Also attached to the complaint was a letter dated September 28, 2015, from

PECo to Poirier. The letter indicated that PECo was terminating Poirier’s representative

agreement, which had previously been verbally terminated by Poirier and Richard Schafer

in February 2015.      The letter further indicated that PECo had not received any

communication from Poirier relaying Poirier’s representative activities with Fanuc on

PECo’s behalf in the past year. In addition, the letter stated that when PECo’s CEO,

Susan Springhetti, had questioned Poirier about his activity for 2014/2015, Poirier’s

expressed activity (one visit to Fanuc in one year) was inadequate. In the complaint,

Poirier contended that after his termination, PECo had refused to pay him commissions

that were due.
                                                                                              -5-


       {¶ 8} On July 15, 2016, PECo filed its answer to the complaint, and it admitted that

the documents attached to the complaint were true and accurate copies of the documents

that were involved. PECo asserted various defenses, including that the complaint failed

to state a claim, that the claims were barred due to Poirier’s lack of performance and

breach of agreement, by a lack of consideration, by lawful termination of the contract, by

equitable doctrines of laches, estoppel, wavier, and unclean hands, and so forth. PECo,

therefore, asked that the complaint be dismissed at Poirier’s cost, and that it be awarded

the costs of litigation, including reasonable attorney fees.

       {¶ 9} In late December 2016, the trial court filed a final pretrial order, setting a final

pretrial conference for April 13, 2017, and a bench trial for April 25, 2017.            Shortly

thereafter, on January 9, 2017, PECo filed a motion for summary judgment.                   The

essence of the motion was that Poirier had breached the contract by doing nothing, and

that he was not entitled to any commissions.

       {¶ 10} The motion was supported by the affidavit of Springhetti, who indicated that

she had met with Poirier in the fall of 2014 to discuss what activities Poirier had conducted

on behalf of and to represent PECo. At that time, Poirier stated that the extent of his

efforts was only one trip to Fanuc in 2014 with Richard Schaefer, PECo’s sales

representative.   Springhetti then asked that Poirier send her notification of his trips,

contacts made, communications, discussion topics, and the purpose of visits to, and

contact with, PECo customers. However, after the fall 2014 meeting, Springhetti did not

receive any information that she had requested, including evidence that Poirier was

performing work for PECo. The only “sales” activities that Poirier had engaged in since

entering the agreement in 2013 were two visits to Fanuc. During those visits, Poirier was
                                                                                          -6-


accompanied by Richard Schaefer, who led the meetings and did a majority of the

communicating with the client.        Springhetti stated that Poirier’s “presence and

participations at these meetings was minimal at best.”        PECo Motion for Summary

Judgment, Ex. 1 (Affidavit of Susan Springhetti), p. 3. Springhetti further indicated that

PECo had been damaged by Poirier’s failure to perform and by paying him commissions,

and that Poirier had not conferred any benefit on PECo.

       {¶ 11} In addition, Springhetti stated that Poirier was notified in February 2015 that

his agreement was being terminated due to his failure to perform. PECo sent a follow-

up letter on September 28, 2015, confirming the February 2015 oral termination.

According to Springhetti, PECo determined that Poirier had not shown the level of activity

that the Agreement required for payment of commissions, as Poirier had not done any

work or service to earn them. Springhetti further indicated that while PECo did not

believe Poirier was entitled to any commissions due to his failure to comply with a material

term of the agreement, i.e., perform work and services, PECo paid commissions to Poirier

up through December 2014.

       {¶ 12} Springhetti also included documents that Poirier had produced in response

to PECo’s request for production of documents.          Specifically, PECo asked for any

documents that would support Poirier’s claim that he had conducted business activities

on PECo’s behalf, and that demonstrated his claim for damages. Poirier produced only

nine pages of documents, which included: (1) what appears to be copies of seven

payments totaling more than $30,000 that he had received from PECo between March

19, 2015, and June 24, 2015 (most of which were labeled “4th QTR Comm.”); (2) a few

emails between Poirier and a PECo employee, during one of which he mentioned that a
                                                                                          -7-


meeting with Spacex had gone well; and (3) minimal correspondence between Poirier

and Springhetti in September 2015 regarding his termination.

       {¶ 13} In responding to the summary judgment motion, Poirier did not file an

affidavit or any materials other than what had been filed with his complaint. Poirier

contended that the contract was not terminated until September 28, 2015, and that he

was due commissions for six months after termination. However, he did not produce

proof of any orders that he produced at any time during the agreement.

       {¶ 14} On March 8, 2017, the trial court granted summary judgment in PECo’s

favor on all counts in the complaint. The court concluded that PECo had presented

evidence that Poirier failed to perform under the contract and that Poirier did not refute

this fact. The court further concluded that no conversion had occurred because Poirier

failed to identify any commissions that had not been paid; in view of this fact, the issue of

when Poirier was terminated was also irrelevant. As to the claim under R.C. 1335.11,

the court found a lack of evidence that Poirier was due any commissions past December

2014. And finally, the court rejected Poirier’s claim of unjust enrichment because Poirier

had not conferred any benefit on PECo.

       {¶ 15} In its decision, the court also set a non-oral hearing for March 21, 2017, at

which time PECo was to submit evidence of reasonable attorney fees and costs due.

Poirier was then given seven days thereafter to respond to any submission. The court

noted that the decision was a final appealable order but the court did not include a Civ.R.

54(B) certification. In addition, the court noted that the decision had been electronically

transmitted to the parties.

       {¶ 16} On March 16, 2017, Poirier filed a notice of voluntary dismissal pursuant to
                                                                                            -8-


Civ.R. 41(A), and dismissed his claims against PECo, without prejudice. Subsequently,

on March 21, 2017, PECo submitted its request for attorney fees and costs totaling

$14,662.28. The same day, PECo filed a motion to strike Poirier’s voluntary dismissal.

The court then granted the motion to strike on March 27, 2017, and gave Poirier until

March 31, 2017 to respond to PECo’s attorney fee submission.

       {¶ 17} On March 31, 2017, Poirier filed a response to the fee request, and also

filed a motion asking the trial court to reconsider the ruling on the motion to strike. Poirier

then filed a notice of appeal from the March 8, 2017 entry granting summary judgment.

On April 19, 2017, the trial court filed an order holding the motion for reconsideration and

the attorney fee issue in abeyance pending appeal.

       {¶ 18} On August 3, 2017, we dismissed Poirier’s appeal for lack of a final

appealable order, and remanded the case to the trial court. Our decision was based on

the fact that the trial court had contemplated further action on attorney fees and did not

include a Civ.R. 54(B) certification. See Poirier v. Process Equipment Co. of Tipp City,

2d Dist. Montgomery No. 27529, 2017-Ohio-8188, ¶ 6 (Poirier I). After remand, the trial

court filed an order on August 16, 2017, amending its decision of March 8, 2017, to add

a Civ.R. 54(B) certification. The same day, Poirier filed another Civ.R. 41(A) dismissal

of his claims against PECo. In addition, Poirier also filed a notice of appeal from the trial

court’s August 16, 2017 order and entry and from the court’s March 27, 2017 decision,

order, and entry sustaining PECo’s motion to strike the notice of voluntary dismissal.

       {¶ 19} During the course of the appeal, Poirier filed a “Notice for Determination of

Final Appealable Order” in our court, asking that we issue a decision concerning whether

the trial court’s August 16, 2017 amended order and entry was a final appealable order
                                                                                           -9-


in light of the voluntary notice of dismissal that had been filed on March 16, 2017. We

indicated that we would resolve this issue when we considered the merits of the appeal.

See Poirier v. Process Equipment Co. of Tipp City, 2d Dist. Montgomery No. 27697 (Dec.

21, 2017) (Poirier II).



                          II. Propriety of Order Striking Notice of Dismissal

       {¶ 20} Poirier has not presented a statement of any assignments of error as

required by App.R. 16(A)(3), but has simply made three points under the part of his brief

that is labeled “Law and Analysis.” While we are allowed to strike the brief or dismiss an

appeal in such situations, we generally will decide to review the appellant’s claims, in the

interests of justice. See, e.g., VanHeulen v. VanHeulen, 2d Dist. Greene No. 2015-CA-

29, 2015-Ohio-4792, ¶ 11. Accordingly, we will do so here. From what we can glean

from the discussion, Poirier’s primary contention can be phrased as follows:

               Because the Trial Court’s Original Summary Judgment Order Was

       Not a Final Appealable Order, Poirier Had Authority to File a Notice of

       Voluntary Dismissal, and the Trial Court Erred in Striking the Notice of

       Dismissal.

       {¶ 21} In essence, Poirier’s argument is that because the trial court failed to include

a Civ.R. 54(B) certification with the summary judgment ruling of March 8, 2017, the order

was interlocutory and Poirier was entitled to file a voluntary notice of dismissal. Poirier

further contends that the attorney fee award was not a collateral issue because it was

based on the merits of the case, and that the trial court would be without jurisdiction to

consider the amount of the award after the notice of dismissal was filed.
                                                                                        -10-


       {¶ 22} As a preliminary point, we note that the fee award is not before us, as the

trial court has not yet ruled on the fee request. That matter was held in abeyance

pending the first appeal, and there is no indication in the docket that the trial court has

rendered a decision on the point. Instead, the current appeal, as noted in Poirier’s notice

of appeal, is from the August 16, 2017 order amending the March 8, 2017 summary

judgment decision to add a Civ.R. 54(B) certification, and from the March 27, 2017 order

striking the notice of voluntary dismissal.

       {¶ 23} The trial court’s decision to strike the notice of voluntary dismissal cited

State ex rel. Engelhart v. Russo, 131 Ohio St.3d 137, 2012-Ohio-47, 961 N.E.2d 1118,

in which the Supreme Court of Ohio observed that “a notice of voluntary dismissal filed

after the trial court enters summary judgment is of no force and effect and is a nullity.”

Id. at ¶ 17, citing Blair v. Boye–Doe, 157 Ohio App.3d 17, 2004-Ohio-1876, 808 N.E.2d

906, ¶ 3, fn. 2 (9th Dist.), and Sutton v. Kim, 11th Dist. Trumbull No. 2004-T-0061, 2005-

Ohio-5866, ¶ 16.

       {¶ 24} Poirier’s brief does not discuss the Engelhart case.        Instead, Poirier

focuses on the argument that he has an absolute right to voluntarily terminate his action

prior to actual commencement of trial, and that the lack of Civ.R. 54(B) language rendered

the judgment interlocutory and subject to dismissal.

       {¶ 25} The March 8, 2017 judgment was not a final appealable order because

when the original pleadings ask for attorney fees, decisions that award attorney fees, but

do not specify amounts, are not final appealable orders. Poirier I, 2d Dist. Montgomery

No. 27529, 2017-Ohio-8188, at ¶ 4-6, citing Internatl. Bhd. of Electrical Workers, Local

Union No. 8 v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335, 2007-Ohio-6439, 879
                                                                                       -11-


N.E.2d 187, at paragraph two of the syllabus. (Other citations omitted.)

       {¶ 26} In the case before us, PECo inserted a request for attorney fees in its

answer, and could have asked for attorney fees as part of its motion for summary

judgment.   PECo also could have moved for fees after the court entered summary

judgment on its behalf. Vaughn at ¶ 2. PECo did not ask for fees in its summary

judgment motion. Instead, the trial court determined that PECo was the prevailing party

under R.C. 1335.11, and ordered a further non-oral hearing on fees. At that point, under

Vaughn, the trial court was required to insert a Civ.R. 54(B) certification in the summary

judgment decision before the decision could be considered a final appealable order. Id.

       {¶ 27} In Vaughn, the Supreme Court of Ohio stressed that “[i]n the absence of

express Civ.R. 54(B) language, an appellate court may not review an order disposing of

fewer than all claims. * * * The trial court may revise the order until all claims are

adjudicated. Civ.R. 54(B).   A court may not bypass the requirement to include the

express language of Civ.R. 54(B) simply by designating the order as final.” Vaughn at

¶ 8.

       {¶ 28} After Vaughn was decided, we noted the concern of other courts that an

overly broad application would require dismissal of subsequent appeals for lack of a final

appealable order even where requests for attorney fees had been only pro forma.

(Citations omitted.)   Evanston Acquisitions, LLC v. STAG II Dayton, LLC, 2d Dist.

Montgomery No. 27480, 2017-Ohio-5755, ¶ 8. We commented that this reasoning would

not apply in several situations, where an appeal would properly be dismissed for lack of

a final appealable order under Vaughn. These included situations where the trial court

discussed fees in its order or awarded fees and deferred determination of the amount of
                                                                                           -12-


the fees until later. The fear of overly broad application would also not be a concern

where fees were requested under an express statute rather than being vague or

unspecified requests. (Citations omitted.) Id. at ¶ 9.

       {¶ 29} In the case before us, the trial court awarded fees, subject to further

determination of the amount. This fell within the situations we discussed in Evanston,

and the trial court’s order, therefore, was clearly not a final appealable order under

Vaughn. Consequently, when Poirier filed his Civ.R. 41(A) notice of dismissal, the trial

court’s order was still interlocutory.

       {¶ 30} In pertinent part, Civ.R. 41(A)(1) allows a plaintiff “without order of court” to

dismiss all claims against a defendant by “(a) filing a notice of dismissal at any time before

commencement of trial unless a counterclaim which cannot remain pending for

independent adjudication by the court has been served by that defendant * * *.” Since

the court’s decision was interlocutory, Poirier had the right under Civ.R. 41(A) to file a

notice of dismissal.

       {¶ 31} The Supreme Court of Ohio did say in Engelhart that “a notice of voluntary

dismissal filed after the trial court enters summary judgment is of no force and effect and

is a nullity.” Engelhart, 131 Ohio St.3d 137, 2012-Ohio-47, 961 N.E.2d 1118, at ¶ 17,

citing Blair, 157 Ohio App.3d 17, 2004-Ohio-1876, 808 N.E.2d 906, at ¶ 3, fn. 2, and

Sutton, 11th Dist. Trumbull No. 2004–T–0061, 2005-Ohio-5866, at ¶ 16. However, this

statement must be understood in its context.

       {¶ 32} Engelhart involved a mandamus action in which the trial court had signed

an entry granting summary judgment to the respondents. Id. at ¶ 2-3. However, before

the clerk had a chance to file the trial court’s order, petitioner’s counsel became aware of
                                                                                         -13-

the court’s intended action and filed a notice of dismissal. Id. at ¶ 3. As a result, even

though the trial court had signed the entry granting summary judgment earlier, the

petitioner’s notice of dismissal was filed first. Id.

       {¶ 33} Subsequently, the respondents moved the trial court to strike the notice of

dismissal, and also moved the trial court to have the petitioner and her counsel show

cause why they should not be held in contempt. Id. at ¶ 6. In response, the trial court

filed an order striking the notice of dismissal and also imposed sanctions against the

attorney. Id. at ¶ 6-9. After this occurred, the petitioner filed a complaint for a writ of

prohibition in the court of appeals, seeking to prevent the trial court from further

proceeding. The petitioner also sought a writ of mandamus to compel the trial court to

vacate the order striking the notice of dismissal and to reinstate the notice. Id. at ¶ 10.

After the court of appeals denied the writs, the petitioner appealed to the Supreme Court

of Ohio.

       {¶ 34} In responding to the petitioner’s claims, the Supreme Court of Ohio first

noted that “ ‘[t]he plain import of Civ.R. 41(A)(1) is that once a plaintiff voluntarily

dismisses all claims against a defendant, the court is divested of jurisdiction over those

claims.’ ” Id. at ¶ 16, quoting State ex rel. Fifth Third Mtge. Co. v. Russo, 129 Ohio St.3d

250, 2011-Ohio-3177, 951 N.E.2d 414, ¶ 17. The court then noted the decision of the

court of appeals, which had held that the notice of dismissal was ineffective because the

petitioner had filed it after the trial court granted summary judgment. This is the context

in which the Supreme Court of Ohio made the observation that the trial court and PECo

have relied on – i.e., that a voluntary dismissal after summary judgment is a nullity. Id.

at ¶ 17.
                                                                                            -14-


       {¶ 35} The court went on to note that a notice of dismissal is effective if it is filed

before journalization of a summary judgment. (Citations omitted.) Id. at ¶ 18. Due to

the facts in the case, the court ultimately concluded that the notice of dismissal was

effective because it was filed before the court’s order was journalized.            The court

stressed that journalization is required for an order to be effective under Civ.R. 58. Id.

at ¶ 21-25.    Thus, the petitioner won the “race” in this case because her notice of

dismissal was filed before the clerk filed the trial court’s summary judgment decision.

       {¶ 36} Because a “notice of voluntary dismissal is self-executing and completely

terminates the possibility of further action on the merits of the case upon its mere filing,

without the necessity of court intervention,” the Supreme Court of Ohio held that the court

of appeals had erred in denying the request for a writ of prohibition to prevent the trial

court from proceeding on the merits of the case and in denying the writ of mandamus to

compel the trial court to vacate its entry striking the notice of dismissal. Id. at ¶ 23 and

26.

       {¶ 37} Notably, Engelhart and the cases it cited for the proposition about voluntary

dismissals did not involve circumstances where a motion is granted but is not a final

appealable order, either because a trial court fails to include a Civ.R. 54(B) certification

or an attorney fee award is pending, or both. As was noted, the comment in Engelhart

must be considered in its context. It cannot be construed as broadly as either the trial

court or PECo believes.

       {¶ 38} For example, in Blair, the plaintiff voluntarily dismissed her case after the

trial court had already dismissed it due to the plaintiff’s failure to provide an expert report.

No attorney fees or other pending matters were involved, and the appeal actually involved
                                                                                           -15-

a subsequent denial of the plaintiff’s motion for relief from judgment. Blair, 157 Ohio

App.3d 17, 2004-Ohio-1876, 808 N.E.2d 906, at ¶ 3.

        {¶ 39} Furthermore, the footnote in Blair that was cited by the Supreme Court of

Ohio in Engelhart referred to a prior decision of the Ninth District Court of Appeals. See

Engelhart, 131 Ohio St.3d 137, 2012-Ohio-47, 961 N.E.2d 1118, at ¶ 17, citing Blair at

¶ 3, fn. 2. This footnote in Blair, in turn, cites Pearce v. Church Mut. Ins., 9th Dist. Medina

No. 02CA0101-M, 2003-Ohio-3147, ¶ 15.

        {¶ 40} Pearce involved a notice of dismissal that the plaintiff filed after the trial

court had granted summary judgment for the defendant. The plaintiff later moved for

relief from judgment, which the trial court granted. The trial court then vacated the

summary judgment entry and dismissed the case without prejudice. Id. at ¶ 4-6.

        {¶ 41} On appeal, the Ninth District Court of Appeals held that the plaintiff failed to

present the trial court with operative facts to establish that the motion for relief from

judgment should have been granted.           The court, therefore, reversed the decision

granting the motion for relief from judgment. In this regard, the court noted that summary

judgment would be reinstated and the later-filed notice of dismissal was “of no force and

effect.” Id. at ¶ 15. Again, this was accurate, but it was in a different context – the case

did not involve a situation where the trial court’s decision was interlocutory or other

matters remained pending.

        {¶ 42} Likewise, Sutton, 11th Dist. Trumbull No. 2004-T-0061, 2005-Ohio-5866,

involved a motion for relief from judgment, and does not appear to involve an interlocutory

order.1 The summary judgment order was based on the plaintiffs’ failure to respond to


1   In Sutton, one defendant, a doctor, filed a motion for summary judgment, which was
                                                                                            -16-


the defendant’s motion for summary judgment, and the court of appeals ultimately held

that the trial court did not err in denying the plaintiffs’ subsequent motion for relief from

judgment, because they failed to show excusable neglect.             Id. at ¶ 15-16.     In this

context, the court rejected, among other things, the plaintiffs’ contention of excusable

neglect based on the fact that they mailed their notice of dismissal to the court rather than

filing it in person before the summary judgment decision was filed. The court of appeals

noted that the plaintiffs were aware of the deadline to respond to the summary judgment

motion, and that “[a] notice of voluntary dismissal filed after the trial court enters summary

judgment is a nullity.” Id. at ¶ 16. Again, the context must be considered.

       {¶ 43} The point is that none of these cases should be read as making a blanket

statement about voluntary dismissal without considering the circumstances that were

involved. Unlike Engelhart, Blair, Pearce, and Sutton, the summary judgment order in

the case before us was interlocutory, and under Civ.R. 41(A)(1)(a), Poirier was permitted

to file a notice of dismissal without the trial court’s permission or intervention.

       {¶ 44} The Supreme Court of Ohio has said that:

       [O]nce a plaintiff voluntarily dismisses all claims against a defendant, the

       court is divested of jurisdiction over those claims. “It is axiomatic that such

       dismissal deprives the trial court of jurisdiction over the matter dismissed.

       After its voluntary dismissal, an action is treated as if it had never been



granted before the plaintiffs filed a notice of voluntary dismissal. There appears to have
been another defendant, a hospital, but the decision of the court of appeals does not
indicate what occurred with that defendant or whether the claims were still pending when
the plaintiffs filed a notice of dismissal. In any event, the appeal was from denial of a
motion for relief from judgment, not from the summary judgment decision. Sutton, 11th
Dist. Trumbull No. 2004-T-0061, 2005-Ohio-5866, ¶ 1.
                                                                                          -17-

        commenced.” Zimmie v. Zimmie (1984), 11 Ohio St.3d 94, 95, 11 OBR

        396, 464 N.E.2d 142. The notice of voluntary dismissal is self-executing

        and completely terminates the possibility of further action on the merits of

        the case upon its mere filing, without the necessity of court intervention.

(Citations omitted.) Russo, 129 Ohio St.3d 250, 2011-Ohio-3177, 951 N.E.2d 414, at

¶ 17.

        {¶ 45} Thus, in the case before us, once Poirier filed the notice of dismissal, the

action was terminated, and the trial court no longer had jurisdiction over the matter. As

a result, the court’s summary judgment order was of no further effect, and we have no

ability to consider whether summary judgment in PECo’s favor was properly granted.

We do have the ability to consider, however, whether the trial court erred in striking

Poirier’s notice of dismissal. The trial court did err in striking the notice, because it no

longer had the ability to do so.

        {¶ 46} In responding to Poirier’s arguments, PECo contends that the amount of

fees to be granted was a collateral order that the court could still decide even if the case

had been voluntarily dismissed. As support for this proposition, Poirier cites ABN AMRO

Mtge. Group, Inc. v. Evans, 8th Dist. Cuyahoga No. 96120, 2011-Ohio-5654, and

Thallman v. Thallman, 3d Dist. Seneca No. 13-15-36, 2016-Ohio-992.               Both cases

indicate that courts may still consider collateral issues that are unrelated to the merits of

an action, even if a Civ.R. 41(A)(1) voluntary dismissal has divested the court of

jurisdiction.

        {¶ 47} The Supreme Court of Ohio has similarly held that despite dismissal of

actions, trial courts are allowed to “consider collateral issues like criminal contempt and
                                                                                          -18-

Civ.R. 11 sanctions * * *.” State ex rel. Ahmed v. Costine, 100 Ohio St.3d 36, 2003-Ohio-

4776, 795 N.E.2d 672, ¶ 5 (involving involuntary dismissal for failure to state a claim).

See also State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771 N.E.2d

853, ¶ 23 (noting that “despite a voluntary dismissal under Civ.R. 41(A)(1), a trial court

may consider certain collateral issues not related to the merits of the action,” including

criminal contempt, Civ. R. 11 sanctions, and R.C. 2323.51 motions to impose sanctions

for frivolous conduct).

       {¶ 48} We have also held that collateral issues may be considered after voluntary

dismissal of a case. See State ex rel. J. Richard Gaier Co., L.P.A. v. Kessler, 97 Ohio

App.3d 782, 783, 647 N.E.2d 564 (2d Dist.1994) (trial court has jurisdiction to rule on

Civ.R. 11 motion for sanctions following plaintiff’s voluntary dismissal of underlying action

under Civ.R. 41(A)(1)); Miami Valley Hosp. v. Payson, 2d Dist. Montgomery No. 18736,

2001 WL 1562103 (Dec. 7, 2001) (after voluntary dismissal, the trial court still had

jurisdiction to decide motion for sanctions under 29 U.S.C. 1132(g)(1), “particularly where,

as here, the motion was filed before the voluntary dismissal”).

       {¶ 49} Nonetheless, the matter of attorney fees is not before us, and we need not

decide whether an award of fees under R.C. 1335.11 is a “collateral matter,” or related to

the merits, because the trial court has not yet awarded any specific fees. As was noted,

the trial court held issues pertaining to attorney fees in abeyance during the prior appeal,

and did not resolve the matter before Poirier filed the current appeal. If the trial court

chooses not to award any fees, or decides it now lacks jurisdiction to do so, the matter of

fees would be moot. The law is settled that appellate courts do not issue advisory

opinions to trial courts. Youngstown State Univ. v. State Emp. Relations Bd., 10th Dist.
                                                                                          -19-

Franklin No. 15AP-755, 2016-Ohio-2649, 49 N.E.3d 382, ¶ 11 (10th Dist.); Broadnax v.

Greene Credit Serv., 118 Ohio App.3d 881, 894, 694 N.E.2d 167 (2d Dist.1997).

       {¶ 50} The other points raised by Poirier’s brief pertain to matters already

discussed, and need not be further considered. Accordingly, Poirier’s assignment of

error, however it is construed, is sustained. This also resolves Poirier’s request that we

decide whether the court’s decision of August 16, 2017 is a final appealable order in light

of Poirier’s voluntary dismissal of the case. In this regard, we note that the trial court’s

August 16, 2017 order was filed in response to our specific direction, and the trial court

had also previously filed an order striking Poirier’s notice of dismissal. Poirier appealed

both of these orders, and we have jurisdiction to consider whether the trial court erred in

striking the voluntary notice of dismissal, even though we do not have the ability to

consider whether summary judgment was property rendered in PECo’s favor.

       {¶ 51} Based on the preceding discussion, we conclude that the trial court erred in

striking Poirier’s notice of dismissal.    Accordingly, Poirier’s assignment of error is

sustained.



                                          III. Conclusion

       {¶ 52} Poirier’s assignment of error having been sustained, the judgment of the

trial court striking Poirier’s notice of dismissal is reversed, and this cause is remanded for

further proceedings.

                                      .............



DONOVAN, J., concurring.
                                                                                           -20-


HALL, J., dissenting,

       {¶ 53} In my opinion, the question before us is whether the filing of a Civ. R. 41(A)

notice of dismissal after the trial court has granted summary judgment and determined

that PECo is statutorily entitled to attorney fees prevents the trial court from proceeding

to determine the amount of those attorney fees. I conclude that whether or not plaintiff

attempted to dismiss his claim by filing a Civ. R. 41(A) notice of dismissal is irrelevant;

the amount of attorney fees due is a collateral matter, and the trial court can proceed to

determine the amount of fees due. Accordingly, I would not reverse the trial court’s order

striking Poirier’s notice of dismissal and therefore I dissent.

       {¶ 54} We decided a similar case in Miami Valley Hosp. v. Payson, 2d Dist.

Montgomery No. 17830, 1999 WL 1207064 (Dec. 17, 1999) (Payson I). There the hospital

brought an action on a patient account. The defendants, as third-party plaintiffs, filed third-

party claims against their health insurers. One insurer, Guardian Life Insurance Company,

filed a motion to dismiss the third-party action and sought attorney fees under ERISA.

Later, the Paysons filed a Civ.R. 41(A) dismissal of their third-party complaint. The trial

court then referred the attorney-fee issue to a magistrate. The Paysons filed in this court

for a writ of prohibition to prevent the trial court from proceeding to decide the attorney

fees because the third-party claims had been dismissed. We said:

              In State ex rel. Gaier Co. v. Kessler (1994), 97 Ohio App.3d 782,

       784-785, 647 N.E.2d 564, we stated that “[a] voluntary dismissal under

       Civ.R. 41(A)(1) deprives the trial court of jurisdiction over the matter

       dismissed. * * * However, a request for sanctions under Civ.R. 11 is not part

       of the matter dismissed; it is a demand for relief that is collateral to the
                                                                                     -21-


claims of the parties and the adjudication of those claims.” (Citations

omitted). Accordingly, we held “that the filing of a voluntary dismissal does

not divest the trial court of jurisdiction over a motion for sanctions so long

as that motion does not seek to penalize a party for exercising his absolute

right to dismiss an action.” Id., at 785, 647 N.E.2d 564; see also Grossman

v. Mathless & Mathless, C.P.A. (1993), 85 Ohio App.3d 525, 620 N.E.2d

160; Cooter & Gell v. Hartmarx Corp. (1990), 496 U.S. 384, 110 S.Ct. 2447,

110 L.Ed.2d 359 (holding that under federal law, a voluntary Rule 41(a)(1)(i)

dismissal does not deprive a district court of jurisdiction over a federal Rule

11 motion).

       It is apparent from the foregoing that a trial court has jurisdiction to

hear a claim for attorney fees based upon alleged violations of Civ. R. 11 or

R.C. 2323.51 even after the underlying action giving rise to the claim for

attorney fees has been voluntarily dismissed. It is also apparent that a state

trial court has jurisdiction to entertain an ERISA-based claim for attorney

fees. We are not persuaded that a voluntary dismissal of an action deprives

a trial court of its jurisdiction to hear a claim for attorney fees simply because

the basis of that claim is found in the ERISA statute, rather than in Civ. R.

11 or R.C. 2323.51. Despite the unsupported contention of the petitioners

to the contrary, a claim for attorney fees remains collateral to the main

action, regardless of the statute or rule that authorizes the prosecution of

such a claim. In short, the argument of the petitioners fails to distinguish

between the collateral nature of an attorney fees claim and the basis for
                                                                                        -22-


       bringing that claim.

Id. at *3-4.

       {¶ 55} In a subsequent appeal, after Mr. Payson was ordered by the trial court to

pay attorney fees of $8,683.88 to the insurance company, we addressed that ruling. In

Miami Valley Hosp. v. Payson, 2d. Dist. Montgomery No. 18736, 2001-Ohio-1926

(Payson II), we affirmed the attorney-fee award made pursuant to the ERISA provision

even though the Civ.R. 41(A) dismissal had been filed before assessment of attorney

fees. In my opinion, that decision then got sidetracked in a dicta discussion of whether it

is necessary for the recipient of such an award to be a “prevailing party.” Eventually we

determined that a prevailing party is unnecessary for the ERISA attorney-fee award. But

the holding of Payson II is that statutory attorney fees could be awarded to the opposite

party despite an intervening Civ.R. 41(A) dismissal.

       {¶ 56} Thereafter, the Tenth District quoted from the “prevailing party” dicta in

Payson II to conclude that there was no “prevailing party” after a Civ.R. 41(A) dismissal

in Winona Holdings, Inc. v. Duffey, 10th Dist. Franklin No. 13AP-471, 2014-Ohio-519, ¶

9. There the plaintiff sold a car to the defendant, who presented a later-dishonored check.

The dealer sued the defendant under R.C. 2307.60, which allows recovery for a person

injured by certain criminal acts. For a theft offense, which under some circumstances

includes a dishonored check, R.C. 2307.61(B) provides that “if the defendant prevails in

the civil action” the defendant may recover attorney fees, costs, and compensatory

damages. The dealer had acquired a default judgment, and the defendant was denied a

Civ. R. 60(B) motion but that was reversed and remanded to the trial court in an earlier

appeal. Upon remand, with no form of judgment in effect, the plaintiff filed a Civ.R. 41(A)
                                                                                         -23-


dismissal. Only thereafter did the defendant file for attorney fees as the prevailing party.

The trial court determined he did not prevail because the case was dismissed. The court

of appeals agreed there was no prevailing party, but in my opinion that was because there

was no form of judgment in effect.

       {¶ 57} But even if Winona Holdings were not in part based on the Payson II dicta,

I would distinguish it from the case here because PECo was the prevailing party when

the Civ.R. 41(A) dismissal was filed, the request for attorney fees already had been made,

and had been determined, and all that remained was to determine the amount.

       {¶ 58} I would follow the rationale of Payson I that “a claim for attorney fees

remains collateral to the main action, regardless of the statute or rule that authorizes the

prosecution of such a claim.” To determine otherwise allows a plaintiff to test the waters

and when summary judgment is entered against him, to thwart the statutory rights of the

opposition. In essence, the trial court had ruled that PECo is entitled to attorney fees.

Allowing a Civ.R. 41(A) dismissal to extinguish PECo’s statutory claim to attorney fees

that already had been awarded, although in an undetermined amount, allows Poirier to

control the opposition’s claim, not just his own. In that regard, I view an already-awarded

claim for attorney fees as similar to a counterclaim, which is not subject to dismissal by

the opposition under Civ.R. 41(A).

       {¶ 59} I would overrule the assignment of error and remand the case for

determination of the attorney fees due to PECo.
                            -24-




Copies mailed to:

Wayne E. Waite
Richard A. Talda
Jennifer R. Grewe
Hon. Michael W. Krumholtz
