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Stohlmann v. Koski-Hall12/24/2003
a substantial right in an action that in effect determines the action and prevents a judgment.
. However, Civ.R. 54 "establishes that courts may enter final judgment as to one or more, but fewer than all defendants in an action, only upon an express determination that there is no just reason to delay entering such a judgment." Denham v. New Carlisle (1999), 86 Ohio St.3d 594, 596. For that reason, at the time the motions were granted the decision did not amount to a "final appealable order," because the grant of summary judgment disposed of fewer than all claims and parties, and the court did not certify the order by expressly finding there is no just reason for delay.
.If plaintiff had filed a voluntary dismissal of all other claims and parties, even without prejudice, she could have transformed the lower court's decision into a "final appealable order." Denham, supra. Denham concerned a wrongful death action against, among others, the City of New Carlisle. After a lower court granted the city's motion for summary judgment, the plaintiff voluntarily dismissed all claims against all the defendants other than the city. Notably, the lower court did not certify that there was no just reason for delay. Because there were no other claims to litigate, the Supreme Court of Ohio determined that the voluntary dismissal of all other parties transformed an otherwise non-appealable order into a final appealable order.
.Plaintiff in the case at bar, however, failed to recreate the circumstances in Denham, because she dismissed all claims against all defendants, not just the remaining defendants. "A dismissal without prejudice leaves the parties as if no action had been brought at all." DeVille Photography, Inv. v. Bowers (1959), 169 Ohio St. 267. See, also, Blankenship v. Wadsworth-Rittman Area Hosp., Medina App. No. 02CA0062-M, 2003-Ohio-1288; Toledo Heart Surgeons v. The Toledo Hosp., Lucas App. No. L-02-1059, 2002-Ohio-3577. The dispositive issue here is a voluntary dismissal of the entire case. Because that dismissal rendered the order being appealed a nullity, the order is not appealable. As a result, this court does not have the requisite jurisdiction to hear this appeal. Plaintiff may be able to recommence her action, if she satisfies the statutory requirements.
Appeal dismissed.
It is ordered that appellees recover of appellants their costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIMOTHY E. MCMONAGLE, J., AND JOHN T. PATTON, J., CONCUR.
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