[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 KYLE THOMPSON, ET AL.,                         :   JUDGES:
                                                :   Hon. Patricia A. Delaney, P.J.
         Plaintiffs - Appellants/               :   Hon. Craig R. Baldwin, J.
         Cross-Appellees                        :   Hon. Earle E. Wise, J.
 -vs-                                           :
                                                :
 THOM L. COOPER, ET AL.,                        :   Case No. 16CA20
                                                :
         Defendants - Appellees/                :
         Cross-Appellants                       :   OPINION


 CHARACTER OF PROCEEDING:                            Appeal from the Knox County Court
                                                     of Common Pleas, Case No.
                                                     16OT04-0096



 JUDGMENT:                                           Reversed and Remanded in part,
                                                     Affirmed in part



 DATE OF JUDGMENT:                                   June 21, 2017



 APPEARANCES:

 For Plaintiffs-Appellants/                          For Defendants-Appellees/
 Cross-Appellees                                     Cross-Appellants

 CRAIG T. MATTHEWS                                   COLLEEN M. O'NEIL
 320 Regency Ridge Drive                             ALEXANDER B. REICH
 Centerville, Ohio 45459                             Calfee, Halter & Griswold LLP
                                                     The Calfee Building
                                                     1405 East Sixth Street
                                                     Cleveland, Ohio 44114
Knox County, Case No. 16CA20                                                        2

Baldwin, J.

         {¶1}   Appellants Kyle Thompson and Janetta Reece appeal a judgment of the

Knox County Common Pleas Court entering summary judgment in favor of appellees

Thom L. Cooper, Co., a Legal Professional Association dba Cooper, Adel & Associates

LPA (hereinafter “Cooper Adel”), Thomas Loyal Cooper and Mitchell Jordan Adel.

Appellees have filed a cross-appeal to the court’s denial of their request for sanctions.

                            STATEMENT OF THE FACTS AND CASE

         {¶2} On November 4, 2014, appellants filed an action in the Butler Common Pleas

Court against Cooper Adel, asserting three causes of action:        wrongful discharge in

violation of public policy, sexual harassment/hostile work environment (asserted by

appellant Reece only), and the tort of sexual harassment (asserted by appellant Reece

only).

         {¶3}   Appellant Reece filed a complaint against Cooper Adel and against appellee

Cooper and appellee Adel individually in the Butler County Common Pleas Court on

August 15, 2015. She asserted three causes of action: sexual harassment/hostile work

environment, the tort of sexual harassment, and aiding and abetting sexual harassment

(against Thom Cooper only). She voluntarily dismissed this complaint without prejudice

on September 23, 2015.

         {¶4}   On December 16, 2015, the Butler County Common Pleas Court granted

partial summary judgment to appellee Cooper Adel in the 2014 action on the claim of

wrongful discharge. The ruling did not include Civ. R. 54(B) language. The remaining

claims were to proceed to trial. However, on December 17, 2015, appellants filed a notice
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


 of dismissal which stated, “PLEASE TAKE NOTICE, that pursuant to Rule 41(A)(1)(a) of

 the Ohio Rules of Civil Procedure, Plaintiffs dismiss their claims without prejudice.”

         {¶5}    Appellants filed the instant action on April 11, 2016. The first cause of action

 asserted a claim by both appellants against appellee Cooper Adel only, for wrongful

 discharge in violation of public policy. The second cause of action asserted a claim by

 both appellants against all appellees for retaliation in violation of R.C. 3721.24. The third

 cause of action asserted a claim by appellant Reece against Cooper Adel and Mitchell

 Adel for sexual harassment/hostile work environment. The final cause of action asserted

 a claim by appellant Reece against Cooper Adel for the tort of sexual harassment.

         {¶6}    The trial court granted summary judgment dismissing the complaint. The

 court found that the causes of action for sexual harassment/hostile work environment

 were barred by res judicata pursuant to the two-dismissal rule found in Civ. R. 41(A). The

 court further found that appellants’ claim for wrongful discharge was barred by res

 judicata, as the interlocutory summary judgment entered by the Butler County Common

 Pleas Court became a final, appealable order upon the dismissal of the sexual harassment

 claims in the 2014 case. The court found that the retaliation claim arose out of the same

 subject matter or occurrence as the wrongful discharge action, and thus was barred by res

 judicata based on the final judgment entered on the wrongful discharge action in Butler

 County.

         {¶7}    Appellants assign a single error to this Court on appeal:

         {¶8}    “THE TRIAL COURT ERRED BY GRANTING THE APPELLEES’ MOTION

 FOR SUMMARY JUDGMENT AS TO THE APPELLANTS’ WRONGFUL DISCHARGE

 AND RETALIATION CLAIMS.”
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


         {¶9}    Appellees assign a single error on cross-appeal:

         {¶10} “THE TRIAL COURT ERRED IN DENYING APPELLEES’/CROSS-

 APPELLANTS’ MOTION FOR SANCTIONS.”

                                                Direct Appeal

         {¶11} Summary judgment proceedings present the appellate court with the unique

 opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

 The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As such, we must

 refer to Civ. R. 56(C) which provides in pertinent part:

                 Summary Judgment shall be rendered forthwith if the pleadings,

         depositions, answers to interrogatories, written admissions, affidavits,

         transcripts of evidence, and written stipulations of fact, if any, timely filed in

         the action, show that there is no genuine issue as to any material fact and

         that the moving party is entitled to judgment as a matter of law. No evidence

         or stipulation may be considered except as stated in this rule. A summary

         judgment shall not be rendered unless it appears from the evidence or

         stipulation, and only from the evidence or stipulation, that reasonable minds

         can come to but one conclusion and that conclusion is adverse to the party

         against whom the motion for summary judgment is made, that party being

         entitled to have the evidence or stipulation construed most strongly in the

         party’s favor.

         {¶12} In the instant case, appellants do not argue that there are facts in dispute.

 Rather, appellants argue that the court erred as a matter of law in entering summary

 judgment, based on the undisputed facts.
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


         {¶13} The question raised by the instant appeal is whether the Civ. R. 41(A)

 dismissal filed in the 2014 action in Butler County, which pursuant to the rule acted as a

 dismissal on the merits of appellant Reece’s sexual harassment claims, caused the

 interlocutory summary judgment on the wrongful discharge action to become a final,

 appealable order. Civ. R. 41(A)(1) provides:

         (A)     Voluntary dismissal: effect thereof

         (1)     By plaintiff; by stipulation. Subject to the provisions of Civ. R. 23(E),

         Civ. R. 23.1, and Civ. R. 66, 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.

                 Unless otherwise stated in the notice of dismissal or stipulation, the

         dismissal is without prejudice, except that a notice of dismissal operates as

         an adjudication upon the merits of any claim that the plaintiff has once

         dismissed in any court.

         {¶14} Appellants rely on the Ohio Supreme Court’s decision in Pattison v. W.W.

 Grainger, Inc., 120 Ohio St. 3d 145, 2008-Ohio-5276, 897 N.E.2d 126. In that case, the

 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
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


 Civ.R. 54(B), the plaintiff may not create a final order by voluntarily dismissing the

 remaining claims against that defendant pursuant to Civ. R. 41(A). Id. at ¶1. Appellants

 thus argue that their dismissal of the sexual harassment claims in the 2014 action did not

 cause the interlocutory summary judgment on their wrongful discharge claim to become

 a final, appealable order, as they could not create a final order by voluntarily dismissing

 their remaining claims.

         {¶15} However, appellees point this Court to Groen v. Children’s Hospital Medical

 Center, 972 N.E.2d 648, 2012-Ohio-2815 (1st Dist. Hamilton) and Luehrman v. Verma,

 10th Dist. Franklin No. 12AP-1024, 2014-Ohio-3335, in which the courts distinguished

 Pattison on the basis that the dismissal of the remaining claims was with prejudice, rather

 than without prejudice. The Groen court concluded that the trial court’s partial summary

 judgment became a final, appealable order when the plaintiff dismissed her remaining

 claims with prejudice. 2012-Ohio-2815, ¶17. The Tenth District agreed with the Groen

 decision in Luehrman, finding that a partial summary judgment was rendered final and

 appealable by a partial dismissal with prejudice of the remaining claims in the action.

 2014-Ohio-3335, ¶23.           Appellees argue that because the dismissal of the sexual

 harassment claims in the 2014 action was with prejudice by operation of the two-dismissal

 rule, the summary judgment entered in that case on the wrongful termination case became

 a final, appealable order.

         {¶16} We find Pattison, Groen, and Luehrman distinguishable from the instant

 action. Those cases concerned attempts by the plaintiff to create a final, appealable order

 from an interlocutory summary judgment by voluntarily dismissing the remaining causes

 of action against a particular defendant. However, in the instant case, the 2014 dismissal
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


 did not purport to dismiss only the causes of action which remained after the partial

 summary judgment was entered on the wrongful termination claim.                 The notice of

 dismissal stated, “PLEASE TAKE NOTICE, that pursuant to Rule 41(A)(1)(a) of the Ohio

 Rules of Civil Procedure, Plaintiffs dismiss their claims without prejudice.” Not only does

 the language fail to limit the dismissal to the sexual harassment claims, but the use of the

 plural “plaintiffs” and “their” suggests that they intended to voluntarily dismiss the wrongful

 discharge claim, as the remaining claims were actions brought solely by appellant Reece.

 Had the intention been to only dismiss the claims remaining after the summary judgment,

 the notice should have stated that Plaintiff Reece dismisses her claims. Thus, the issue

 before this Court is whether the notice of voluntary dismissal as to the wrongful discharge

 claim, which undisputedly is the first dismissal filed of that particular claim, dissolved the

 summary judgment entered on that claim or rendered it a final, appealable order.

         {¶17} In Bradley v. Dollar General, 975 N.E.2d 515, 2012-Ohio-3700 (5th Dist.

 Fairfield), the trial court entered partial summary judgment which did not contain Civ. R.

 54(B) language stating that there was no just cause for delay. The plaintiffs thereafter

 filed a notice of voluntary dismissal of all claims without prejudice pursuant to Civ. R.

 41(A)(1). We concluded that the voluntary dismissal of all defendants and all claims

 prevented the summary judgment decision from becoming a final adjudication of the

 claims with which it was concerned. Id. at ¶42. Our decision was based on the rationale

 of Denham v. New Carlisle, 86 Ohio St. 3d 594, 597, 716 N.E.2d 184 (1999), in which the

 Ohio Supreme Court held that a Civ. R. 41 dismissal renders the parties as if no suit had

 ever been filed as to the dismissed parties only.        We agreed with Second District’s

 interpretation of Denham, and further noted that other appellate districts had similarly held
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


 that the voluntary dismissal of all defendants renders a prior interlocutory summary

 judgment ruling a nullity:

                 The Second District Court of Appeals applied Denham in Fairchilds

         v. Miami Valley Hospital, Inc., 160 Ohio App.3d 363, 2005-Ohio-1712, 827

         N.E.2d 381 (2nd Dist.). In Fairchilds, the plaintiffs brought a cause of action

         against two defendants. The trial court granted summary judgment as to the

         two defendants, leaving only a negligence claim pending. The plaintiffs

         voluntarily dismissed their entire case without prejudice as to all party

         defendants. The plaintiffs refiled their complaint against the two defendants.

         The defendants moved for summary judgment arguing res judicata barred

         the claims in the refiled complaint. The trial court agreed and granted

         summary judgment in favor of the defendants. Id. at ¶ 10–20.

                 The Second District reversed the decision of the trial court. It held

         that under the rationale of Denham, a voluntary dismissal of all defendants

         renders a prior interlocutory summary judgment ruling a nullity. Id. at ¶ 44.

         The matter was appealed to the Ohio Supreme Court. On July 5, 2006, the

         Ohio Supreme Court dismissed the appeal, sua sponte, as having been

         improvidently accepted. Fairchilds v. Miami Valley Hospital, Inc., 109 Ohio

         St.3d 1229, 2006-Ohio-3055, 849 N.E.2d 292.

                 The Eighth Appellate District, Eleventh, Second, Sixth, Ninth, and

         Tenth Districts have concluded that a voluntary dismissal of all defendants

         renders a prior interlocutory summary judgment ruling a nullity. Toledo Heart

         Surgeons v. The Toledo Hosp., 6th Dist. No. L–02–1059, 2002-Ohio-
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


         3577, 2002 WL 1561105; Ohio Farmers Ins. Co. v. Modine Mfg., 9th Dist.

         Nos. 3114–M and 3116–M, 2001 WL 1011959 (Sept. 5, 2001); State ex rel.

         Mogavero v. Belskis, 10th Dist. No. 02AP164, 2002-Ohio-6497, 2002 WL

         31667241; Fox v. Kraws, 11th Dist. No.2009–L–157, 2009-Ohio-6860, 2009

         WL 5064149; Klosterman v. Turnkey–Ohio, LLC, 10th Dist. No. 10AP–162,

         2010-Ohio-3620, 2010 WL 3042024.

         {¶18} Bradley, supra, ¶34-36.

         {¶19} Based on our holding in Bradley, the notice of dismissal of all claims against

 the sole defendant in the 2014 action rendered the interlocutory summary judgment

 entered against appellees on the wrongful discharge claim a nullity.          The notice of

 dismissal acted as an adjudication on the merits as to the sexual harassment claims which

 had previously been dismissed in the 2015 action, by operation of Civ. R. 41(A)(1)(a).

 However, appellees were not barred from refiling the wrongful discharge claim in the

 instant action.

         {¶20} Further, the trial court’s entry of summary judgment on the retaliation claim

 was based on its conclusion that the wrongful discharge claim was barred by res judicata.

 Because we have found that the court erred in dismissing the wrongful discharge claim,

 the court erred in dismissing the retaliation claim.

         {¶21} The assignment of error is sustained.

                                                Cross-Appeal

         {¶22} We next address appellees’ assignment of error on cross-appeal. We note

 at the outset that the trial court did not directly overrule appellees’ request for sanctions

 in the judgment dismissing the case on summary judgment. However, a trial court's
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


 failure to rule on a motion is normally deemed to be a denial of that motion for purposes

 of appellate review. Hollenbaugh v. Hollenbaugh, 5th Dist. Delaware No. 13CAF070056,

 2014-Ohio-1124, ¶ 36, citing Capital One Bank (USA), N.A. v. Rodgers, 5th Dist.

 Muskingum No. CT2009–0049, 2010–Ohio–4421, ¶ 13.

         {¶23} In their motion for summary judgment, appellees sought sanctions pursuant

 to Civ. R. 11 and R.C.2323.51. They argued that appellants’ conduct was frivolous in

 filing a complaint that was clearly barred by res judicata, and further that appellants

 abused the “already plaintiff-friendly” procedures set forth in Civ. R. 41 by engaging in

 forum shopping after receiving an adverse ruling in Butler County.

         {¶24} In response, counsel for appellants filed an affidavit stating that he signed

 the complaint in this lawsuit, and believed there were good grounds for the complaint.

 Affidavit, Craig T. Matthews, ¶7.

         {¶25} The court held a hearing on the summary judgment motion. During the

 hearing, only the summary judgment was addressed, and appellees did not address their

 motion for sanctions. At the end of the hearing, the trial judge announced his ruling from

 the bench, and asked counsel for appellees to prepare the entry in accordance with his

 oral ruling. Tr. 66-67. The entry did not address the issue of sanctions.

         {¶26} Civ. R. 11 states:

                 Every pleading, motion, or other document of a party represented by

         an attorney shall be signed by at least one attorney of record in the

         attorney's individual name, whose address, attorney registration number,

         telephone number, facsimile number, if any, and business e-mail address,

         if any, shall be stated. A party who is not represented by an attorney shall
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


         sign the pleading, motion, or other document and state the party's address.

         A party who is not represented by an attorney may further state a facsimile

         number or e-mail address for service by electronic means under Civ.R.

         5(B)(2)(f). Except when otherwise specifically provided by these rules,

         pleadings, as defined by Civ.R. 7(A), need not be verified or accompanied

         by affidavit. The signature of an attorney or pro se party constitutes a

         certificate by the attorney or party that the attorney or party has read the

         document; that to the best of the attorney's or party's knowledge,

         information, and belief there is good ground to support it; and that it is not

         interposed for delay. If a document is not signed or is signed with intent to

         defeat the purpose of this rule, it may be stricken as sham and false and the

         action may proceed as though the document had not been served. For a

         willful violation of this rule, an attorney or pro se party, upon motion of a

         party or upon the court's own motion, may be subjected to appropriate

         action, including an award to the opposing party of expenses and

         reasonable attorney fees incurred in bringing any motion under this rule.

         Similar action may be taken if scandalous or indecent matter is inserted.

         {¶27} R.C. 2323.51 controls the imposition of attorney fees for frivolous conduct.

 R.C. 2323.51(B)(1) provides in pertinent part:

                 [A]ny party adversely affected by frivolous conduct may file a motion

         for an award of court costs, reasonable attorney's fees, and other

         reasonable expenses incurred in connection with the civil action or appeal.
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


         The court may assess and make an award to any party to the civil action or

         appeal who was adversely affected by frivolous conduct.

         {¶28} Frivolous conduct is defined in R.C. 2323.51(A)(2)

         (2) “Frivolous conduct” means either of the following:

         (a)      Conduct of an inmate or other party to a civil action, of an inmate who

         has filed an appeal of the type described in division (A)(1)(b) of this section,

         or of the inmate's or other party's counsel of record that satisfies any of the

         following:

         (i)      It obviously serves merely to harass or maliciously injure another

         party to the civil action or appeal or is for another improper purpose,

         including, but not limited to, causing unnecessary delay or a needless

         increase in the cost of litigation.

         (ii)    It is not warranted under existing law, cannot be supported by a good

         faith argument for an extension, modification, or reversal of existing law, or

         cannot be supported by a good faith argument for the establishment of new

         law.

         (iii)   The conduct consists of allegations or other factual contentions that

         have no evidentiary support or, if specifically so identified, are not likely to

         have evidentiary support after a reasonable opportunity for further

         investigation or discovery.

         (iv)    The conduct consists of denials or factual contentions that are not

         warranted by the evidence or, if specifically so identified, are not reasonably

         based on a lack of information or belief.
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


         {¶29} The decision to award sanctions pursuant to Civ. R. 11 or R.C. 2323.51 is

 within the discretion of the trial court and will not be reversed absent an abuse of

 discretion. New Dimensions, Inc. v. Bixler, 5th Dist. Stark No. 2001CA00238, 2002 WL

 226839 (February 11, 2002). In order to find an abuse of discretion, the reviewing court

 must determine that the trial court's decision was unreasonable, arbitrary, or

 unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶30} As discussed above, the trial court erred in determining that the wrongful

 discharge and retaliation claims were barred by res judicata, although the sexual

 harassment claims had twice been dismissed and therefore could not be refiled pursuant

 to Civ. R. 41. However, the issue of sanctions was not raised by appellees at the hearing,

 nor addressed in the judgment entry prepared by appellees. In granting the summary

 judgment, it appears the trial court did not find the kind of frivolous conduct addressed by

 Civ. R. 11 and R.C. 2323.51:

                  This is a fascinating case. Fascinating case. After having reviewed

         the evidence, I agree with the defendants in this case. Claims merged.

         They were appealable at this time and it constitutes under Rule 41 double

         dismissal.

                  I will also say that this case raises another issue. It raises the issues

         of forum shopping. Because the plaintiffs did not get the decision they liked

         on the wrongful discharge, summary judgment, which was honestly

         discussed here today, but they thought they could do better in a different

         court.
[Cite as Thompson v. Cooper, 2017-Ohio-5549.]


                 To me, while it is a good tactic to take, is inappropriate.        And

         therefore, I grant the defendants’ motion to dismiss.

                 Now, I have placed on the record in this case my reasoning. All right.

         That constitutes a final appealable order as far as I am concerned and I think

         this should be appealed. I will tell you that right now. I think there is enough

         here that this should be appealed…

                 This is a very complex issue in my view and both sides have things

         in their favor in this case as far as I see, but my view is as I stated.

         {¶31} Tr. 66-67.

         {¶32} Based on the state of the record, we cannot find that the court abused its

 discretion in failing to award sanctions.      The assignment of error on cross-appeal is

 overruled.
      {¶33} The judgment of the Knox County Common Pleas Court dismissing

appellants’ claims for wrongful discharge and retaliation is reversed.   The judgment

dismissing appellants’ claims for sexual harassment/hostile work environment and for the

tort of sexual harassment is affirmed. This case is remanded to that court for further

proceedings according to law. Costs are assessed to appellees.

By: Baldwin, J.

Delaney, P.J. and

Earle Wise, J. concur.
