Rock House Fitness Inc. v. Himes

167 N.E.3d 499

ROCK HOUSE FITNESS INC., et al., Plaintiffs-Appellees,

v.Lance HIMES, Interim Director of the Ohio Department of Health, et al., Defendant-Appellant.

NO. 2020-L-075

Court of Appeals of Ohio, Eleventh District, Lake County.

January 29, 2021

Curt Carl Hartman, The Law Firm of Curt C. Hartman, 7394 Ridgepoint Drive, Suite 8, Cincinnati, Ohio 45230; Christopher Neil Finney, Finney Law Firm, LLC, 4270 Ivy Point Boulevard, Suite 225, Cincinnati, Ohio 45245; Maurice Aaron Thompson, 1851 Center for Constitutional Law, 122 East Main Street, Columbus, Ohio 43215 (For Plaintiff-Appellee).

John W. Zeiger, Marion H. Little, Jr., and Daniel P. Mead, Zeiger, Tigges & Little, LLP, 41 South High Street, Suite 3500, Columbus, Ohio 43215; Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor, Columbus, Ohio 43215; James Stephen Simon, Buckingham, Doolittle & Burroughs, L.L.P., 3800 Embassy Parkway, Suite 300, Akron, Ohio 44333, Justin S. Greenfelder, Buckingham, Doolittle & Burroughs, L.L.P., 4277 Munson Street, NW, Canton, Ohio 44718 (For Defendant-Appellant).

MEMORANDUM OPINION

MARY JANE TRAPP, P.J.

Procedural Facts

{¶1} This matter is presently before us on the notice of appeal filed by the office of the Director of the Ohio Department of Health from the order granting a preliminary injunction entered by the Lake County Court of Common Pleas on May 20, 2020. On December 7, 2020, plaintiffs-appellees, Rock House Fitness, Inc., et al. (collectively "Rock House"), filed in the trial court a Civ.R. 41(A)(1)(a) notice of voluntary dismissal, without prejudice, of their verified complaint and all claims in this case.

{¶2} In light of this voluntary dismissal, on December 11, 2020, we ordered the parties to show cause as to whether this appeal should be dismissed for lack of jurisdiction. Defendant-Appellant, Lance Himes, Interim Director of the Ohio Department of Health (hereinafter the "Director"), filed the only response to the show cause order.

{¶3} The Director filed a brief response in support of jurisdiction, arguing (1) the trial court was divested of jurisdiction over a Civ.R. 41 voluntary dismissal once the notice of appeal was filed, and (2) allowing Rock House to voluntarily dismiss the appeal is contrary to App.R. 28. He directs our attention to only two appellate decisions: Huntington Natl. Bank v. Syroka , 6th Dist. Lucas No. L-09-1240, 2010-Ohio-1358, 2010 WL 1223946, and Huntington Natl. Bank v. CPW Properties, Ltd. , 7th Dist. Carroll No. 17 CA 0917, 2018-Ohio-1219, 2018 WL 1565679.

Applicability of App.R. 28

{¶4} App.R. 28 provides:

{¶5} "If the parties to an appeal or other proceeding shall sign and file with the clerk of the court of appeals an agreement that the proceedings be dismissed and shall pay whatever costs are due, the court shall order the case dismissed.

{¶6} "An appeal may be dismissed on motion of the appellant upon such terms as may be fixed by the court."

{¶7} The Rule provides for two mechanisms for the dismissal of an appeal. The first is by "agreement" of the parties; the second is by a motion for dismissal filed by the appellant. We have neither in this matter. The Rule is silent as to a voluntary dismissal of all claims filed in the trial court by the appellee. Thus, the Rule appears inapplicable to the matter at hand, which is whether this court has jurisdiction to decide the appeal.

{¶8} In Syroka , supra , the bank obtained a judgment on a cognovit note, and the defendants appealed. Id. at ¶ 2. The bank then filed a notice of voluntary dismissal and a Civ.R. 60(B) motion to vacate the cognovit judgment, which the trial court granted. Id. at ¶ 3, 12. The bank moved to dismiss the appeal. Id. at ¶ 1.

{¶9} The Sixth District held the trial court did not have jurisdiction to rule on the Civ.R. 60(B) motion while the appeal was pending. Id. at ¶ 15. The Sixth District also held that the bank's notice of voluntary dismissal was a nullity because (1) the trial court did not have jurisdiction when it was filed; (2) the appellate court did not lose its jurisdiction when it was filed; and (3) it was contrary to App.R. 28. Id. at ¶ 6-11. The Sixth District denied the motion to dismiss, but it remanded the matter for the trial court to rule on the 60(B) motion. Id. at ¶ 16.

{¶10} CPW Properties , supra , began as a foreclosure action by Huntington Bank, and the trial court appointed a receiver over CPW's property. Id. at ¶ 2. The trial court subsequently granted Ohio Power's motion to intervene. Id. Ohio Power then filed a motion to set aside the order appointing receiver in the trial court and also filed an appeal from that order. Id. CPW filed for bankruptcy, and that part of the appeal was stayed. Id. at ¶ 3. Huntington Bank then voluntarily dismissed the trial court action and filed a motion to dismiss the appeal. Id.

{¶11} The Seventh District cited to the Syroka opinion in concluding that (1) the voluntary dismissal did not divest the appellate court of jurisdiction and (2) allowing an appellee to voluntarily dismiss an appeal by way of Civ.R. 41 was contrary to App.R. 28. Id. at ¶ 4. The Seventh District did not, however, nullify the effect of the voluntary dismissal. Rather, it held that the dispute between the parties on appeal—i.e., the receivership order—was rendered moot because the underlying foreclosure action had been voluntarily dismissed under Civ.R. 41 and the bankruptcy petition dissolved the reason for the receivership. Id. at ¶ 5.

{¶12} The Seventh District granted Huntington Bank's motion to dismiss the appeal under the mootness doctrine, because the circumstances prevented the court from granting relief in the case. Id. at ¶ 6. It further held that the "capable of repetition, yet evading review" exception did not apply, and hesitated to even consider the exception of "debatable constitutional question to resolve or matter of great public or general interest" because "such an action should be taken only by the highest court in the state." Id. at ¶ 7-10.

{¶13} While at first blush, it would appear these cases support the Director's argument that a Civ.R. 41 voluntary dismissal filed subsequent to the filing of the notice appeal is ineffective to extinguish this court's jurisdiction to hear the appeal of the preliminary injunction, the cases are distinguishable from each other, and the distinctions do make a difference in the outcome of our jurisdictional decision.

Sykora and CPW Properties Distinguished

{¶14} "Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *." (Emphasis added.) Ohio Constitution, Article IV, Section 3 (B)(2).

{¶15} Sykora stands for the proposition that a notice of appeal filed from the final judgment entered on the merits precludes the plaintiff from filing a voluntary dismissal of the underlying claims. Because it was the final cognovit judgment, the entire case was properly before the court of appeals, and nothing remained unsettled in the trial court.

{¶16} CPW Properties stands for the proposition that a notice of appeal filed from an interlocutory, yet final order , does not preclude the plaintiff from voluntarily dismissing the underlying claims and, in effect, moots the issue on appeal. The only matter before the court of appeals was an interlocutory order appointing a receiver, which is a final order under R.C. 2505.02(B)(4), while the underlying foreclosure action remained unsettled in the trial court. See, e.g. , Community First Bank & Trust v. Dafoe , 108 Ohio St.3d 472, 2006-Ohio-1503, 844 N.E.2d 825, ¶ 25-27, citing Forest City Invest. Co. v. Haas , 110 Ohio St. 188, 192, 143 N.E. 549 (1924) (acknowledging that the appointment of a receiver is a provisional remedy as defined in R.C. 2505.02(B)(4), similar to a preliminary injunction, because it is an ancillary proceeding to the principal litigation).

{¶17} These cases are both consistent with Civ.R. 41(A)(1)(a), which states that "a plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at any time before the commencement of trial * * *." (Emphasis added.)

{¶18} The difference in approaches is also consistent with decisions from our court. See, e.g., Sutton v. Kim , 11th Dist. Trumbull No. 2004-T-0061, 2005-Ohio-5866, 2005 WL 2933097, and Davis v. Tell Realty , 11th Dist. Portage No. 98-P-0002, 1999 WL 1483441 (Feb. 12, 1999) (a notice of voluntary dismissal filed after the trial court enters final summary judgment is a nullity; a summary judgment proceeding is considered a "trial" because it involves judicial examination of factual and legal issues that could result in a final judgment on the merits of a claim). Compare, e.g., Jones v. Natural Essentials, Inc. , 11th Dist. Portage No. 2015-P-0005, 2015-Ohio-1073, 2015 WL 1289918 (trial court granted defendant's motion to compel deposition testimony and for sanctions; plaintiffs appealed then filed a notice of dismissal of all claims in the trial court; appeal dismissed due to lack of jurisdiction), and Wilson v. Vaccariello , 11th Dist. Lake No. 2007-L-046, 2007-Ohio-2688, 2007 WL 1584223 (trial court granted in part and denied in part both defendants’ motion to dismiss and plaintiff's motion for judgment on the pleadings; plaintiff appealed then filed a notice of dismissal of all claims in the trial court; defendants’ motion to dismiss appeal granted due to lack of jurisdiction).

{¶19} The Second District has also provided a concise explanation of the difference:

A voluntary dismissal of all defendants renders an interlocutory summary judgment decision a nullity with no res judicata effect. Fairchilds v. Miami Valley Hosp., Inc., 160 Ohio App.3d 363, 2005-Ohio-1712, 827 N.E.2d 381, ¶ 37–39 (2d Dist.) (where summary judgment for some defendants had no Civ.R. 54(B

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