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

  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it