[Cite as Ray v. Wal-Mart Stores, Inc., 2011-Ohio-5142.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                   WASHINGTON COUNTY

Marianne Ray, et al.,                              :                Case No. 10CA27

        Plaintiffs-Appellants,                     :

        v.                                         :                DECISION AND
                                                                    JUDGMENT ENTRY
Wal-Mart Stores, Inc., et al.,                     :
                                                          RELEASED: 09/28/11
     Defendants-Appellees.      :
______________________________________________________________________
                            APPEARANCES:

John E. Triplett, Jr., and Daniel P. Corcoran, Marietta, Ohio, for appellants.

D. Patrick Kasson and Melvin J. Davis, REMINGER CO., LPA, Columbus, Ohio, for
appellees.
______________________________________________________________________
Harsha, P.J.

        {¶1}     Marianne and John Ray appeal the decision granting summary judgment

in favor of Wal-Mart Stores, Inc. and related entities. The Rays filed a negligence action

after Marianne tripped and fell on produce crates that were partially protruding from

underneath a display table in the produce section of the Wal-Mart in Marietta, Ohio.

The trial court concluded there were no genuine issues of fact concerning whether Wal-

Mart breached a duty of care and granted summary judgment in its favor. The Rays

contend a genuine issue exists for trial concerning whether Wal-Mart created the hazard

by placing the crates in the produce section.

        {¶2}     However, we lack jurisdiction over this appeal because the summary

judgment is not a final appealable order. Along with their claim of negligence, the Rays

filed a claim asserting “spoliation of evidence,” essentially alleging that Wal-Mart

destroyed videotapes of the accident. Neither the trial court nor the parties addressed
Washington App. No. 10CA27                                                            2


this claim in the summary judgment proceedings. Before filing this appeal, the Rays

filed a “notice of partial dismissal” purporting to voluntarily dismiss the spoliation claim

under Civ.R. 41(A). However, Civ.R. 41(A) permits a plaintiff to dismiss “all claims”

asserted against a defendant, i.e., the entire complaint. A plaintiff cannot use Civ.R.

41(A) to voluntarily dismiss claims yet to be decided in the trial court for the purposes of

creating a final order on the claims that the court has ruled on, e.g., claims disposed of

through summary judgment. Accordingly, we dismiss this appeal.

                                  I. Summary of the Case

       {¶3}   Marianne filed a complaint against Wal-Mart alleging that, while shopping

in the produce section of the Marietta Wal-Mart store, she tripped over stacked black

produce crates that were partially protruding from underneath a produce display table.

John Ray, her husband, also alleged damages from his loss of consortium.

Additionally, the complaint set forth a “spoliation and destruction of evidence” claim,

which alleged that Wal-Mart failed to preserve videotape evidence related to the

accident .

       {¶4}   Wal-Mart filed a motion for summary judgment arguing that the protruding

black crates were an “open and obvious” hazard, thus obviating it of a duty to warn

Marianne. The trial court agreed and granted summary judgment in its favor. It then

issued a judgment entry ordering, “Plaintiffs’ Complaint is dismissed, with prejudice.”

       {¶5}   We reversed on appeal, concluding that a genuine issue of fact remained

concerning whether the partially protruding crates constituted an open and obvious

hazard. See Ray v. Wal-Mart Stores, Inc., Washington App. No. 08CA41, 2009-Ohio-
Washington App. No. 10CA27                                                                   3


4542, at ¶41.1 Our opinion also noted that when the trial court granted Wal-Mart

summary judgment it dismissed the Rays’ complaint in full, apparently including the

spoliation of evidence claim. Id. at ¶42, fn.3. In dicta, we observed that the law

generally prohibits sua sponte dismissal of claims not raised or argued in summary

judgment proceedings. Id. But because neither party raised the issue we did not

address it either and concluded that our reversal of the trial court’s summary judgment

permitted Ray to “proceed with this [spoliation] claim on remand.” Id.

       {¶6}    After our remand, Wal-Mart filed a second motion for summary judgment,

this time arguing that no genuine issues of fact existed concerning a breach of any duty

owed to Marianne. The trial court again granted summary judgment in favor of Wal-

Mart, but noted that the “spoliation of evidence” claim remained pending. Five days

before filing the notice of appeal in this case, the Rays filed a “notice of partial

dismissal” in which they purported to dismiss the spoliation claim, under Civ.R. 41(A).

                                      II. Assignment of Error

       {¶7}    The Rays present one assignment of error:

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE

       DEFENDANTS-APPELLEES BECAUSE THERE ARE GENUINE ISSUES OF

       MATERIAL FACT REGARDING LIABILITY.

                                 III. No Final Appealable Order

       {¶8}    Neither party addresses it, but before we can approach the merits of this

appeal, we must decide whether we have jurisdiction to do so. Appellate courts “have

such jurisdiction as may be provided by law to review and affirm, modify, or reverse

1
  Judge Abele’s opinion indicated a genuine issue of fact existed. However, Judge Kline concurred in
“judgment only” and Judge Harsha concurred in judgment only with an opinion that concluded the crates
were not an open and obvious hazard as a matter of law.
Washington App. No. 10CA27                                                           4


judgments or final orders of the courts of record inferior to the court of appeals within

the district[.]” Section 3(B)(2), Article IV, Ohio Constitution; see, also, R.C. 2505.03(A).

If a court's order is not final and appealable, we have no jurisdiction to review the matter

and must dismiss the appeal. Eddie v. Saunders, Gallia App. No. 07CA7, 2008-Ohio-

4755, at ¶11. If the parties do not raise the jurisdictional issue, we must raise it sua

sponte. Sexton v. Conley (Aug. 7, 2000), Scioto App. No. 99CA2655, 2000 WL

1137463, at *2.

       {¶9}   Under R.C. 2505.02, an order is final when it is: an order that affects a

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

judgment; an order that affects a substantial right made in a special proceeding or upon

a summary application in an action after judgment; an order that vacates or sets aside a

judgment or grants a new trial; or an order that grants or denies a provisional remedy.

R.C. 2505.02(B)(1)-(4). “A final order determines the whole case, or a distinct branch

thereof, and reserves nothing for future determination, so that it will not be necessary to

bring the cause before the court for further proceedings.” Savage v. Cody-Ziegler, Inc.,

Athens App. No. 06CA5, 2006-Ohio-2760, at ¶8, citing Catlin v. United States (1945),

324 U.S. 229, 233, 65 S.Ct. 631 and Coey v. U.S. Health Corp. (Mar. 18, 1997), Scioto

App. No. 96CA2439, 1997 WL 142386.

       {¶10} When a court issues a judgment that disposes of some claims but leaves

other claims pending, the order is final and appealable only if the judgment complies

with Civ.R. 54(B), which states:
Washington App. No. 10CA27                                                             5


      When more than one claim for relief is presented in an action whether as a

      claim, counterclaim, cross-claim, or third-party claim, and whether arising

      out of the same or separate transactions, or when multiple parties are

      involved, the court may enter final judgment as to one or more but fewer

      than all of the claims or parties only upon an express determination that

      there is no just reason for delay. In the absence of a determination that

      there is no just reason for delay, any order or other form of decision,

      however designated, which adjudicates fewer than all the claims or the

      rights and liabilities of fewer than all the parties, shall not terminate the

      action as to any of the claims or parties, and the order or other form of

      decision is subject to revision at any time before the entry of judgment

      adjudicating all the claims and the rights and liabilities of all the parties.



      {¶11} Civ.R. 54(B) allows a trial court to enter final judgment as to one or more

but fewer than all claims in a multi-claim action only upon an express determination of

“no just reason for delay.” Without this language, a reviewing court does not have

jurisdiction and must dismiss the appeal. See, Noble v. Colwell (1989), 44 Ohio St.3d

92, 96, 540 N.E.2d 1381.

      {¶12} In this case, the court’s decision granting Wal-Mart summary judgment on

the Rays’ negligence claim did not address the spoliation claim and specifically noted

that it remained pending. And the summary judgment decision did not contain Civ.R. 54

language.
Washington App. No. 10CA27                                                             6


       {¶13} In an apparent attempt to create a final appealable order, the Rays filed a

“notice of partial dismissal” that purported to dismiss the spoliation claim under Civ.R.

41(A), which provides:



       * * * a plaintiff, without order of court, may dismiss all claims asserted by

       that plaintiff against a defendant by doing either of the following:



       (a) filing a notice of dismissal at any time before the commencement of

       trial unless a counterclaim which cannot remain pending for independent

       adjudication by the court has been served by that defendant;



       (b) filing a stipulation of dismissal signed by all parties who have appeared

       in the action.

       (Emphasis added.)



       {¶14} In Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276,

897 N.E.2d 126, the Supreme Court held that “when a plaintiff has asserted multiple

claims against one defendant, and some of those claims have been ruled upon but not

converted into a final order through Civ.R. 54(B), the plaintiff may not create a final

order by voluntarily dismissing pursuant to Civ.R. 41(A) the remaining claims against

the same defendant.” Id. at ¶1. This is because Civ.R. 41(A) only allows for the

dismissal of all claims against a defendant. Id. at ¶20; see, also, Savage, supra, at ¶33.

“It does not provide for the dismissal, without prejudice, of part of a cause of action.”
Washington App. No. 10CA27                                                          7

Pattison at ¶19, quoting Borchers v. Winzeler Excavating Co. (Apr. 10, 1992),

Montgomery App. No. 13297, 1992 WL 82681, at *1 (per curiam). Pattison, like the

case at hand, involved a plaintiff that attempted to create a final order by voluntarily

dismissing a claim not disposed of in summary judgment proceedings through Civ.R.

41(A). Id. at ¶¶2-5.

       {¶15} Pattison dictates the outcome here. The Rays could not voluntarily

dismiss the remaining spoliation claim through a Civ.R. 41(A) voluntary dismissal. That

claim remains pending in the trial court. And the trial court did not finalize its summary

judgment decision with Civ.R. 54 language. Therefore, the decision appealed from is

not final and appealable and we lack jurisdiction to proceed with the merits of this

appeal.

                                      IV. Conclusion

       {¶16} No final appealable order exists in this case and we must dismiss the

Rays’ appeal. On remand, the Rays may proceed with the merits of their spoliation

claim. Alternatively, they may consider seeking leave to amend the complaint under

Civ.R. 15(A) if appropriate. See Pattison at ¶19 (observing in dicta that some appellate

courts have concluded “the proper procedure for a plaintiff to dismiss fewer than all

claims against a single defendant is to amend the complaint pursuant to Civ.R. 15(A).”

Citing Reagan v. Ranger Transp., Inc. (1995), 104 Ohio App.3d 15, 18, 660 N.E.2d

1234; Kildow v. Home Town Improvements, Muskingum App. No. CT2001-0057, 2002-

Ohio-3824; Lewis v. J.E. Wiggins & Co., Franklin App. Nos. 04AP-469, 04AP-544, and

04AP-668, 2004-Ohio-6724).

                                                                     APPEAL DISMISSED.
Washington App. No. 10CA27                                                       8


                                   JUDGMENT ENTRY

         It is ordered that the APPEAL BE DISMISSED and that Appellants shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

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

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.



                                   For the Court




                                   BY: ________________________________
                                       William H. Harsha, Presiding Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
