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


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                          JOURNAL ENTRY AND OPINION
                                   No. 96603




                               GERALDINE MAHONEY

                                                         PLAINTIFF-APPELLANT

                                                   vs.


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

                                                         DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            DISMISSED


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

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

      RELEASED AND JOURNALIZED: October 6, 2011

ATTORNEYS FOR APPELLANT

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




ATTORNEY FOR APPELLEES

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




EILEEN A.    GALLAGHER, J.:

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

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

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

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

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

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

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

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

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

Woodside Village office manager and Mahoney’s supervisor.          Mahoney

claimed that shortly after becoming her supervisor, Bemus began treating

Mahoney less favorably than substantially younger employees because of

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

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

made negative comments about her age.

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

employment.      Mahoney alleged that her termination and Bemus’s

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

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

equal employment opportunity laws and that Horizon Bay failed to exercise

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

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

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

CallSource Incorporated alleging age discrimination, aiding and abetting age

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

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

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

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

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

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

claims of age discrimination and aiding and abetting age discrimination

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

Employment Opportunity Commission; Mahoney’s claim of unlawful

wiretapping must fail because an exception to the wiretapping statute

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

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

defendants’ motion for summary judgment.

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

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

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

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

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

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

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

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

CallSource Inc. on March 2, 2011.
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      {¶ 6} However, as an initial matter, we find that the judgment from

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

that appellate courts have jurisdiction to review only final orders or

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

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

to review the matter.

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

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

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

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

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

dismissing without prejudice the remaining claims against the same

defendant.

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

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

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

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

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

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

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

The court further stated:

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

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

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

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

voluntarily dismissed three out of the four causes of action against

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

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

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

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

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

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

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

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

Pattison.
                                             7

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

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

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

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

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

No. 06CA5, 2006-Ohio-2760.

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

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

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

execution.

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

Rules of Appellate Procedure.




EILEEN A.     GALLAGHER, JUDGE

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

                                          Appendix

Assignment of Error:

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

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