Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

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.

Search

Recent Entries

  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax
  • June 28, 2017
    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States
  • June 27, 2017
    What's Up in the 8th
    A worrisome decision on expert funding, and, mirabile dictu, a court's dismissal of a case for a discovery violation is upheld