[Cite as Brigadier Constr. Servs., L.L.C., v. JLP Glass Prods., 2012-Ohio-2314.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 97624




         BRIGADIER CONSTRUCTION SERVICES LLC
                                                             PLAINTIFF-APPELLEE

                                                       vs.

                        JLP GLASS PRODUCTS, ET AL.
                                                             DEFENDANTS-APPELLANTS




                                             JUDGMENT:
                                              DISMISSED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-734769


        BEFORE: Jones, J., Celebrezze, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: May 24, 2012
ATTORNEYS FOR APPELLANT

Harlan Karp
850 Euclid Avenue
Suite 1330
Cleveland, Ohio 44114

Eugene I. Selker
Mazanec, Raskin & Ryder Co.
100 Franklin’s Row
34305 Solon Road
Cleveland, Ohio 44139

ATTORNEYS FOR APPELLEE

Debra J. Horn
Alan B. Dailide
Rachel L. Steinlage
Meyers, Roman, Friedberg & Lewis
28601 Chagrin Boulevard
Suite 500
Cleveland, Ohio 44122
LARRY A. JONES, SR., J.:

       {¶1} Defendants-appellants JLP Glass Products and James Ponyicky (collectively

“JLP Glass”) appeal the trial court’s denial of its motion for relief from judgment. For

the reasons that follow, we lack jurisdiction to consider this appeal.

       {¶2} In 2009, plaintiffs-appellees Brigadier Construction Services, LLC,

subcontracted with JLP Glass to have the company furnish labor, materials, equipment,

and supervision for the installation of panels and walls as part of the Louis Stokes

Cleveland VA Medical Center construction project.           By February 2010, the parties

decided to terminate their relationship and entered into a formal settlement agreement

(“Agreement”).

       {¶3} In August 2010, Brigadier filed a three count complaint against JLP Glass,

Ponyicky, who owned JLP Glass, and James Long, a JLP Glass employee, alleging breach

of the Agreement (Counts I and II) and conversion (Count III) against all three parties.1

In January 2011, Brigadier moved for summary judgment. The motion went unopposed;

on April 26, 2011, the trial court granted the summary judgment motion as to Counts I and

II, but denied the motion as to Count III.

       {¶4} Subsequent to the trial court’s partial denial of its motion for summary

judgment, Brigadier moved to amend its complaint to amend Counts I and II to name just


           Long is not a party to this appeal.
       1
JLP Glass and Ponyicky and to dismiss Count III. The trial court denied the motion.

Brigadier then moved to dismiss Count III with prejudice pursuant to Civ.R. 41(A)(1)(A).

The trial court granted this motion on May 18, 2011.

      {¶5} On October 19, 2011, JLP Glass filed a motion for relief from judgment,

which Brigadier opposed and the trial court denied, without hearing.

      {¶6} It is from this order that JLP Glass and Ponyicky now appeal, raising the

following assignments of error for our review:

      I. The trial court abused its discretion in denying Appellants’ Rule 60(B)
      Motion and failing to hold a hearing where Appellants cited
      Misrepresentation/Fraud on the court, meritorious defenses were asserted[,]
      and Appellees misrepresented their claims for relief and the [p]ersonal
      [l]iability of Appellant Ponyicky.

      II. The trial court erred in finding that a Notice of Partial Dismissal of
      Count III with prejudice under Civil Rule 41(A)(1) was a final order.

      III.   The trial court erred to the prejudice of Defendants-Appellants in

      denying a protective order staying execution [where] Civil Rule 60(B) relief

      was sought, operative facts were established, and the record is unclear

      whether there was indeed a final judgment.

                            Lack of a Final Appealable Order

      {¶7} We are unable to reach the merits of the appeal, however, because we do not

have jurisdiction over the appeal.   Appellate jurisdiction is limited to reviewing a lower

court’s final judgment. Section 3(B)(2), Article IV of the Ohio Constitution. To be a

final, appealable order, a judgment entry must meet the requirements of R.C. 2505.02 and,

if applicable, Civ.R. 54(B). Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86,
88, 541 N.E.2d 64 (1989).

         {¶8} According to Civ.R. 54(B), an action is not terminated unless the court has

resolved all of the claims or the rights and liabilities of all of the parties, or the court has

specified that there is no just reason for delay. Thus, a motion for summary judgment

that fails to adjudicate all claims against all parties is interlocutory absent the required

Civ.R. 54(B) language. Goldney v. Byrd, 8th Dist. No. 88285, 2007-Ohio-1985; Perritt

v. Nationwide Mut. Ins. Co., 10th Dist. No. 03AP-1008, 2004-Ohio-4706.

         {¶9} Brigadier filed suit against JLP Glass, its owner Ponyicky, and its employee,

Long.     In its complaint, Brigadier alleged that all three were jointly and severally liable

for breach of the Agreement (Counts I and II) and conversion (Count III).         In its motion

for summary judgment, Brigadier requested summary judgment only as to JLP Glass and

Ponyicky on Counts I and II but as to the company, Ponyicky, and Long on Count III.

The trial court subsequently granted summary judgment “as to the claims for

compensatory damages against [JLP Glass] and [Ponyicky], jointly and severally, in the

total amount of $16,782.00,” which was the amount prayed for in Counts I and II.           The

court denied Count III as follows: “[t]he motion is denied as to defendant Jesse L. Long on

the conversion claim” and “as to punitive damages and attorney’s fees on the conversion

claim.    Therefore, the claim against defendant Long and the punitive damage claim

against all defendants remain pending for adjudication.”

         {¶10} Thus, at this point, all claims remained against Long and part of the
conversion claim remained against JLP Glass and Ponyicky.2                   Brigadier admitted as

much when, in its motion to file an amended complaint, it stated that “based on [the

court’s summary judgment] ruling, Count III (for conversion) and all claims against

Defendant Long remain pending.”              (Emphasis added.) 3        In its proposed amended

complaint, Brigadier amended the allegations so as to include only JLP Glass and

Ponyicky on Counts I and II and deleted Count III, in its attempt to create a final order.

The trial court, however, denied Brigadier’s motion to file the amended complaint.

Because the trial court denied the motion, the claims remained pending.                Brigadier then

filed a dismissal with prejudice as to Count III only; Brigadier never dismissed Counts I

and II against Long.

        {¶11} The trial court issued an order stating “plaintiff dismisses count three of its

complaint with prejudice.       There are no remaining claims for adjudication and this case is

hereby placed on the court’s inactive docket.”           The court erred, however, because the

claims for breach of the Agreement remained, and still remain, pending against Long.

        {¶12} The claims against Long for breach of contract, Counts I and II, remain

pending for adjudication. Without an express determination that there was no just reason

for delay, the order dismissing Count III of the complaint was not a final order. Civ.R.



            The claim for conversion requested compensatory damages, punitive damages, and attorney
        2


fees.

          In fact, in its appellate brief, Brigadier reiterated that based on the trial court’s summary
        3


judgment ruling, “Count Three (for conversion) and all claims against Defendant Long remain
pending.” P. 2 Brief of Appellee Brigadier Construction Services, LLC.
54(B). Consequently, we are without jurisdiction to consider this appeal.

      {¶13} Appeal dismissed.

      It is ordered that appellee recover of appellants costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.




LARRY A. JONES, SR., JUDGE

FRANK D. CELEBREZZE, JR., P.J., CONCURS;
KENNETH A. ROCCO, J., DISSENTS WITH
SEPARATE OPINION


KENNETH A. ROCCO, J., DISSENTING:

      {¶14} Although not mentioned in the majority opinion, the heart of this case is

whether the Ohio Supreme Court’s decision in Pattison v. W.W. Grainger, Inc. applies

when a party dismisses with prejudice its remaining unadjudicated claims. 120 Ohio

St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126.        I would hold that Pattison does not apply

where a plaintiff moves for leave to amend under Civ.R. 15(A) to dismiss its remaining

unadjudicated claims; where that motion is denied; and where the plaintiff then voluntarily

dismisses all unadjudicated claims with prejudice under Civ.R. 41(A).     Because Brigadier
did just that, I would hold that this case presents us with a final appealable order.

Accordingly, I respectfully dissent.

       {¶15} After the trial court granted, in part, Brigadier’s motion for summary

judgment, Brigadier then filed a motion under Civ.R. 15(A) for leave to amend its

complaint so that it could remove its conversion claim and begin to collect on its judgment

with respect to the two breach of contract claims.     The trial court denied the motion on

May 16, 2011.

       {¶16} As a result, on May 18, 2011, Brigadier instead voluntarily dismissed the

conversion claim under Civ.R. 41(A). Importantly, Brigadier dismissed the remaining

claim with prejudice. On May 24, 2011, the trial court indicated on the docket that,

because there were no remaining claims for adjudication, the case would be placed on the

court’s inactive docket.

       {¶17} In other words, Brigadier attempted to amend its complaint under Civ.R.

15(A), and only after its motion was denied, did it voluntarily dismiss with prejudice its

remaining claim under Civ.R 41(A)(1).       Under this procedural posture, there is a final

appealable order.

       {¶18} Appellants’ argument, that the Ohio Supreme Court’s decision in Pattison

applies to this case and that there is no final appealable order, is misplaced.   In Pattison,

the court held that a party who dismisses claims under Civ.R. 41(A) must dismiss all

claims against a party or else there is no final appealable order. Pattison, 120 Ohio St.3d

142, 2008-Ohio-5276, 897 N.E.2d 126, at ¶ 1.        There was more than one basis for the
court’s decision in Pattison, but the main rationale was that if a plaintiff did not have to

dismiss all of its claims to effectuate a final appealable order, then:

              a plaintiff could create a final and appealable order as to one

              issue under Civ.R. 41(A) while still saving the dismissed claim

              to be refiled later.   To allow a partial Civ.R. 41(A) dismissal

              is potentially prejudicial to defendants. In cases in which all

              claims against a party are dismissed without prejudice, there

              still is the risk of the action being refiled, but the amount of

              potential litigation that a defendant is subjected to is the same.

(Emphasis added).      Id. at ¶ 20. This rationale makes sense when a party uses Civ.R.

41(A) to dismiss a claim without prejudice.          However, Civ.R. 41(A) provides that

“[u]nless otherwise stated in the notice of dismissal or stipulation,

the dismissal is without prejudice * * * .” (Emphasis added.) Civ.R. 41(A)(1).

       {¶19} But in the instant case, Brigadier gave notice that it was dismissing its third

cause of action with prejudice.      The rationale behind the Pattison rule does not apply in

the case where a party voluntarily dismisses with prejudice because there is no risk to the

defendant that the plaintiff can refile.

       {¶20} Further, Brigadier did everything within its power to comply with the

Pattison decision. In Pattison, the court explained that a party who wishes to obtain a

final appealable order and wishes to dismiss some but not all claims should move for leave

to amend its complaint under Civ.R. 15(A) rather than using Civ.R. 41(A). Pattison at ¶
19.

       {¶21} In the instant case Brigadier attempted to do just that.             Brigadier filed for

leave to amend the complaint under Civ.R. 15(A), but for some unknown reason, the court

denied the motion.4 It was not until then that Brigadier availed itself of Civ.R. 41(A) and

dismissed the remaining claim with prejudice. Brigadier did everything within its power

to dismiss its remaining claim, to protect the defendant from the possibility of future

litigation, and to create a final appealable order so that it could effectuate judgment.

       {¶22} Although the Pattison decision is based, in part, on the text of Civ.R. 41(A),

the holding appears to rest mostly on the policy decision to protect defendants against the

possibility that claims voluntarily dismissed without prejudice could later be refiled.           In

light of this rationale, we should distinguish Pattison from the instant case and hold that

Pattison does not apply where a party dismisses its remaining claims with prejudice.

       {¶23} This result makes much more sense than forcing a party who moved for, but

was not granted, leave to amend under Civ.R. 15(A) to make the choice between

continuing to litigate a claim that it wishes to abandon or else to give up the claims for

which it has already won a judgment in its favor.

       {¶24} Accordingly, I would not dismiss this case for lack of a final appealable order

and would reach the merits of the case.        I would hold that Pattison does not apply where

a plaintiff moves under Civ.R. 15(A) for leave to amend to dismiss its remaining claims;

where the motion is denied; and where the plaintiff then voluntarily dismisses all

       4
        Civ.R. 15 (“Leave of court shall be freely given when justice so requires”).
unadjudicated claims with prejudice under Civ.R. 41(A). I believe this holding gives due

deference to the Pattison decision and also avoids creating Kafkaesque results.
