[Cite as Buds, Inc. vs. C & C Concrete, 2014-Ohio-3898.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



BUDS, INC.                                        :        JUDGES:
                                                  :        Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        :        Hon. Sheila G. Farmer, J.
                                                  :        Hon. Craig R. Baldwin, J.
-vs-                                              :
                                                  :
C&C CONCRETE, ET AL.                              :        Case No. CT2014-0014
                                                  :
        Defendants-Appellants                     :        OPINION




CHARACTER OF PROCEEDING:                                   Appeal from the Court of Common
                                                           Pleas, Case No. CE2008-0943




JUDGMENT:                                                  Dismissed




DATE OF JUDGMENT:                                          September 5, 2014




APPEARANCES:

For Plaintiff-Appellee                                     For Defendant-Appellant
Neff Paving & Concrete                                     Aaron's, Inc.

PETER N. CULTICE                                           JOHN B. KOPF
58 North Fifth Street                                      DANIEL F. EDWARDS
Zanesville, OH 43701                                       41 South High Street
                                                           Suite 1700
                                                           Columbus, OH 43215
Muskingum County, Case No. CT2014-0014                                                 2

Farmer, J.

        {¶1}   L.F. Wolf Contracting, Inc. was the general contractor on a construction

project for appellant, Aaron's, Inc. Wolf subcontracted with C&C Concrete and C&C

Concrete sub-subcontracted with appellee, Neff Paving and Concrete, to perform

paving work. C&C Concrete also sub-subcontracted with BUDS, Inc. to perform drilling

work. Appellant paid Wolf all of the monies due and owing for the project.

        {¶2}   On November 20, 2008, BUDS filed a complaint against C&C Concrete,

appellant, and Wolf, claiming non-payment of services rendered, unjust enrichment, and

quantum meruit. BUDS filed a mechanic's lien.

        {¶3}   On December 15, 2008, Wolf filed an answer and cross-claim against

C&C Concrete for breach of contract and indemnification.

        {¶4}   On January 21, 2009, BUDS filed an amended complaint to add additional

defendants, McClelland, Inc., Newcomer Concrete Services, Inc. and appellee.

        {¶5}   On February 17, 2009, appellant filed an answer to the complaint.

        {¶6}   On February 18, 2009, McClelland filed an answer to the complaint and

cross-claims against C&C Concrete, Wolf, and appellant. McClelland filed a mechanic's

lien.

        {¶7}   On February 19, 2009, appellee filed an answer to the complaint.

Appellee also filed a counterclaim against BUDS and a cross-claim against C&C

Concrete for non-payment of services rendered, unjust enrichment and quantum meruit,

and cross-claims against appellant and Wolf for unjust enrichment and quantum meruit.

Appellee also included McClelland and Newcomer in its cross-claim. Appellee filed a

mechanic's lien. Appellee also filed a third-party complaint against Christina Switzer in
Muskingum County, Case No. CT2014-0014                                                3


her individual and personal capacity for signing the proposal contract between appellant

and appellee.

      {¶8}   On April 13, 2009, appellant filed a cross-claim against Wolf for

indemnification.

      {¶9}   On April 21, 2009, Wolf filed an amended cross-claim to add Ryan and

Christina Switzer, who do business as C&C Concrete, for breach of contract, fraud,

indemnification, and contribution.

      {¶10} On January 26 and 29, 2010, respectively, Wolf and appellant filed

motions for summary judgment on appellee's mechanic's lien.

      {¶11} On January 29, 2010, appellee filed a motion for summary judgment on its

mechanic's lien and unjust enrichment cross-claims against Wolf and appellant.

      {¶12} On March 25, 2010, McClelland voluntarily dismissed its cross-claims

against C&C Concrete, Wolf, and appellant with prejudice.

      {¶13} On April 5, 2010, BUDS voluntarily dismissed its complaint without

prejudice.

      {¶14} On May 18, 2010, appellant voluntarily dismissed its cross-claims against

Wolf with prejudice.

      {¶15} On November 24, 2010, appellant posted a bond as substitute security for

appellee's mechanic's lien. Appellee consented to the bond.

      {¶16} By decision filed November 4, 2011, the trial court granted appellee's

motion for summary judgment on its unjust enrichment cross-claim against appellant,

but not Wolf. By order filed November 10 2011, the trial court directed the payment of
Muskingum County, Case No. CT2014-0014                                                  4


the bond to appellee. The trial court filed a second order on November 15, 2011 to

correct the rate of interest.

       {¶17} On November 30, 2011, appellant filed a motion for reconsideration.

       {¶18} On January 15, 2013, appellee voluntarily dismissed its third-party

complaint against Christina Switzer without prejudice, as well as its cross-claims against

C&C Concrete for nonpayment of services rendered, its cross-claims against C&C

Concrete, Wolf, and appellant for quantum meruit, and any cross-claims against BUDS,

McClelland, and Newcomer, all without prejudice. Left intact were appellee's cross-

claims regarding the mechanic's lien (Count Two) and unjust enrichment against C&C

Concrete, Wolf, and appellant (Count Three).

       {¶19} By journal entry filed October 16, 2013, the trial court denied appellant's

motion for reconsideration.

       {¶20} By journal entry and order filed January 22, 2014, the trial court dismissed

Wolf's cross-claims against C&C Concrete and Mr. and Mrs. Switzer with prejudice.

Considering its November 4, 2011 decision granting appellee's motion for summary

judgment on its unjust enrichment cross-claim against appellant and its October 16,

2013 denial of appellant's motion for reconsideration, the trial court determined all the

claims were resolved, and entered judgment for appellee as against appellant in the

amount of $44,272.00 plus interest, and ordered the payment of the bond to appellee.

The trial court included Civ.R. 54(B) language, "no just reason for delay."

       {¶21} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:
Muskingum County, Case No. CT2014-0014                                                  5


                                              I

        {¶22} "THE MUSKINGUM COUNTY COURT OF COMMON PLEAS (THE

"TRIAL COURT") ERRED BY ENTERING SUMMARY JUDGMENT FOR NEFF

PAVING AND CONCRETE ("NEFF") ON ITS UNJUST ENRICHMENT CLAIM

AGAINST AARON'S, INC. (FKA AARON RENTS, INC.) ("AARON'S")."

                                             II

        {¶23} "THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

AARON'S MOTION FOR RECONSIDERATION OF THE TRIAL COURT'S PRIOR

INTERLOCUTORY DECISION GRANTING SUMMARY JUDGMENT FOR NEFF ON

NEFF'S UNJUST ENRICHMENT CLAIM AGAINST AARON'S."

                                             III

        {¶24} "THE TRIAL COURT ERRED BY ORDERING A NON-PARTY SURETY

THAT POSTED A MECHANICS' LIEN BOND, AS WELL AS THE SURETY'S

ATTORNEY-IN FACT, TO PAY NEFF TO SATISFY THE UNJUST ENRICHMENT

JUDGMENT AGAINST AARON'S."

        {¶25} Before addressing the assignments as presented, we must determine if

there is a final appealable order pursuant to R.C. 2505.02.

        {¶26} Civ.R. 41 governs dismissal of actions and states the following in pertinent

part:



              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
Muskingum County, Case No. CT2014-0014                                               6


     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.

            (2) By order of court. Except as provided in division (A)(1) of this

     rule, a claim shall not be dismissed at the plaintiff's instance except upon

     order of the court and upon such terms and conditions as the court deems

     proper. If a counterclaim has been pleaded by a defendant prior to the

     service upon that defendant of the plaintiff's motion to dismiss, a claim

     shall not be dismissed against the defendant's objection unless the

     counterclaim can remain pending for independent adjudication by the

     court. Unless otherwise specified in the order, a dismissal under division

     (A)(2) of this rule is without prejudice.

            (B) Involuntary dismissal: effect thereof
Muskingum County, Case No. CT2014-0014                                                7

             (1) Failure to prosecute. Where the plaintiff fails to prosecute, or

      comply with these rules or any court order, the court upon motion of a

      defendant or on its own motion may, after notice to the plaintiff's counsel,

      dismiss an action or claim.

             ***

             (3) Adjudication on the merits; exception. A dismissal under division

      (B) of this rule and any dismissal not provided for in this rule, except as

      provided in division (B)(4) of this rule, operates as an adjudication upon

      the merits unless the court, in its order for dismissal, otherwise specifies.

             (C) Dismissal of counterclaim, cross-claim, or third-party claim

             The provisions of this rule apply to the dismissal of any

      counterclaim, cross-claim, or third-party claim. A voluntary dismissal by

      the claimant alone pursuant to division (A)(1) of this rule shall be made

      before the commencement of trial.



      {¶27} In Bobst v. Chem-Tech Consultants, Inc., 5th Dist. Richland No. 12CA37,

2012-Ohio-5601, ¶ 37-39, this court held a voluntary dismissal without prejudice

pursuant to Civ.R. 41(A) does not convert a summary judgment entry into a final

appealable order, quoting Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-

Ohio-5276, ¶ 1:



             "[We hold today that] [w]hen a plaintiff has asserted multiple claims

      against one defendant, and some of those claims have been ruled upon
Muskingum County, Case No. CT2014-0014                                                   8


      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."

             The Pattison Court reasoned [at ¶ 20],

             "Civ.R. 41(A) allows for a dismissal of all claims against particular

      defendants. The lower court's position regarding judicial economy and the

      need to streamline cases suffers in that, were Civ.R. 41(A) to be used to

      dismiss fewer than all of the claims against a certain defendant, 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. When an individual

      claim against a defendant is dismissed without prejudice, however, the

      defendant is forced to go through the appeal process and may perhaps

      still be subjected to the dismissed claim upon refiling. The defendant in

      that situation is vulnerable to an increased overall burden due to the

      Civ.R. 41 dismissal."



      {¶28} Numerous dismissals were filed in this case. Three dismissals were filed

with prejudice: 1) a March 25, 2010 Civ.R. 41(A)(1) dismissal by McClelland of its

February 18, 2009 cross-claim against C&C Concrete, Wolf, and appellant, 2) a May 18,
Muskingum County, Case No. CT2014-0014                                                  9


2010 Civ.R. 41(A)(1)(a) dismissal by appellant of its cross-claim against Wolfe for

indemnification, and 3) the following Civ.R. 41(B)(1) and (3) dismissal by the trial court

on January 22, 2014:



             At the April 8th pretrial, Aaron's, Inc., Neff Paving & Concrete and

      the Court agreed that the only remaining unresolved issues were L.F.

      [Wolf] Contracting's cross-claims against C&C Concrete and Excavating

      and its amended cross-claim against Mr. & Mrs. Switzer. By Journal Entry

      dated April 12, 2013, the Trial Court ordered L.F. Wolf Contracting to

      indicate to the Court in 10 days whether L.F. Wolf Contracting wished to

      pursue these claims. If L.F. Wolf Contracting did not so indicate, "the

      claims will be dismissed." L.F. Wolf Contracting never responded to the

      April 12th Journal Entry. The claims of L.F. Wolf Contracting, Inc., are

      hereby DISMISSED WITH PREJUDICE pursuant to Civ.R 41(B)(1) & (3).

      All outstanding issues are now resolved.



      {¶29} Dismissals without prejudice included BUDS original complaint against all

parties on April 5, 2010, appellee's counterclaim against BUDS on January 15, 2013,

appellee's cross-claim against C&C Concrete for non-payment of services rendered on

January 15, 2013, appellee's cross-claim against C&C Concrete, Wolf, and appellant for

quantum meruit on January 15, 2013, appellee's claims against McClelland and

Newcomer on January 15, 2013, and appellee's third-party complaint against Christina

Switzer on January 15, 2013. Appellee's dismissals of January 15, 2013 were done
Muskingum County, Case No. CT2014-0014                                               10


pursuant to Civ.R. 41(A).     Left intact were appellee's cross-claims regarding the

mechanic's lien (Count Two) and unjust enrichment against C&C Concrete, Wolf, and

appellant (Count Three). By journal entry and order filed January 22, 2014, the trial

court found in favor of appellee as against appellant on its unjust enrichment cross-

claim via decision filed November 4, 2011.

      {¶30} Pursuant to Pattison, the dismissals without prejudice cannot create a final

appealable order. In addition, cross-claims remain pending on the validity of appellee's

mechanic's lien (Count Two) and the bond posted for the lien, and the unjust enrichment

cross-claims against C&C Concrete and Wolf (Count Three). The inclusion of Civ.R.

54(B) language does not "turn an otherwise non-final order into a final appealable

order." Schwab v. Foland, 5th Dist. Tuscarawas No. 2007 AP 11 0073, 2008-Ohio-

4061, ¶ 17, citing Noble v. Colwell, 44 Ohio St.3d 92 (1989).

      {¶31} The appeal is dismissed for lack of a final appealable order.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.


SGF/sg 818
