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June 13, 2006

You've sued three defendants, and the trial court's granted one of them a summary judgment.  Later on, you voluntarily dismiss the case under Rule 41(A)(1).  What happens to the summary judgment?

The Supreme Court dodged a case this week which would have ended some confusion on the matter.  A number of courts, including ours, have held that unless the court includes Rule 54(B) language in the order granting summary judgment, making it a final appealable order, the order becomes a nullity when the voluntary dismissal is filed.  What's more, the plaintiff can then refile, and the previous summary judgment isn't res judicata.  (It works the other way, too, as this case shows; if the plaintiff dismisses and refiles, a denial of summary judgment in the lawsuit's previous incarnation doesn't preclude the court from granting it the second time around.)

But here's where it gets weird:  that applies only if the dismissal entry specifies that you're dismissing the whole case.  If you specify that you're dismissing only the remaining defendants -- the ones who weren't granted summary judgment -- then, according to the Supreme Court in this case, the summary judgment against the other defendant becomes final, and you can appeal that.  In fact, unless you want to get stuck with it, you have to.

Last year, in Fairchilds v. Miami Valley Hospital, the 2nd District confronted the first situation.  The plaintiffs had sued a hospital and a doctor, the doctor was granted summary judgment, the plaintiffs dismissed the entire action, and then refiled against both defendants.  The trial court entered an order making the summary judgment in the first case a final order, then granted summary judgment to the doctor in the second case on res judicata grounds.  The appellate court reversed on both, and the Supreme Court granted an appeal.

And then last week decided they shouldn't have done that, and dismissed the appeal as "improvidently granted."  What's interesting is that Justice Resnick wanted to do that three months ago, and apparently in the interim succeeded in convincing four other justices to do it now.

The moral of this story, if there is one -- besides, "Jeez, is that weird or what?" -- is be careful what you do with a case where one party has been granted summary judgment.  In most cases, it's not going to matter, since the judge on a refiled case is automatically the same one who had it before, and if they granted summary judgment before, they'll do it again.  But if something has happened to that judge in the interim -- think "election results" -- you might get a whole 'nuther bite of the apple.

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