Montgomery v. Zalud8/20/1998
JUDGMENT REVERSED AND REMANDED.
Appellant, Lisa Montgomery, appeals the granting of partial summary judgment in favor of appellee, Barbara Zalud, concerning appellant's strict liability claim. Appellant voluntarily dismissed, pursuant to Civ.R. 41(A)(1)(a), her remaining claim against appellee concerning common law negligence. Due to this dismissal, appellee claims that this order is not final and appealable.
In early 1995, appellant leased the house in which she had been living and purchased another home. Unfortunately, the time from the commencement of the lease to the closing on her new home was two months and, as a result, Montgomery was in search of a temporary residence. Through a mutual friend, Montgomery contacted Ms. Zalud and arranged to live in her home.
Prior to moving into Zalud's home, Montgomery met with Zalud in order to see the home and meet her cat and dog. At this time, appellee informed Montgomery that her dog, Sacci, was funny around people, and appellant should refrain from teasing her. However, appellee failed to mention that Sacci had bitten people in the past. It was then agreed that appellant, in exchange for a bedroom and the right to live in appellee's home, would not pay rent, but would give appellee approximately $900 to $950 to help with expenses. Montgomery then moved in with appellee, received a key and set up residence. At some point during her stay, appellant was bitten by Sacci causing permanent damage to her face.
Appellant filed a lawsuit alleging two separate theories of recovery: (1) a strict liability claim under the dog bite statute, R.C. 955.28, and (2) negligence. Appellee filed a motion for partial summary judgment on the statutory strict liability claim, which was denied. Appellee filed a motion for reconsideration claiming once again that appellant was a harborer of the dog, and was thus barred from recovery by statute. The court granted partial summary judgment in favor of appellee on the strict liability claim, which left the negligence claim pending. Thereafter, appellant filed, pursuant to Civ.R. 41(A), a notice of voluntary dismissal, without prejudice, of the negligence claim.
Before considering the merits of appellant's appeal, we must first address the threshold issue of whether this case presents a final appealable order. Appellee claims that this case is not final and appealable under Civ.R. 54(B), maintaining that the appellant's voluntary dismissal of the negligence claim under Civ.R 41(A), applies to the entire action and, as a result, applies to all previous orders of the court, including the partial summary judgment. Although the argument presented by the appellant is favored in some jurisdictions, ours is not one of them.
The issue of appealability concerning single party, multi- claim cases, where a remaining claim is voluntarily dismissed, has met with opposing interpretations among the Ohio appellate courts. However, this court in Eiland v. Coldwell Banker Hunter Realty (August 14, 1997), Cuyahoga County App. No. 71369, unreported, recently addressed the guidelines for Civ.R. 54(B) application to determine what constitutes a final appealable order, and concluded that in cases where a party has received a partial judgment and voluntarily dismisses a claim in a single party suit, or a defendant in a multi-party suit, that partial judgment becomes a final judgment subject to appeal. Eiland, supra; see, also, Coffey v. Foamex (C.A.6, 1993), 2 F.3d 157, 159 ( Plaintiff voluntarily dismissed these claims without prejudice on July 16, 1992 rendering the [March 4, 1992 summary judgment] order final and appealable ); General Aviation, Inc. v. Cessna Aircraft Co. (C.A.6, 1990
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