Patriot Outdoors, L.L.C. v. Strata Petroleum, Inc. , 2013 Ohio 2287 ( 2013 )

[Cite as Patriot Outdoors, L.L.C. v. Strata Petroleum, Inc., 2013-Ohio-2287.]
STATE OF OHIO, MONROE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
PATRIOT OUTDOORS, LLC, et al., )
) CASE NO. 12 MO 9
PLAINTIFFS-APPELLANTS, )
) OPINION
- VS - ) AND
) JUDGMENT ENTRY
STRATA PETROLEUM, INC., et al., )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 2010-372.
JUDGMENT: 10/02/12 Order Vacated; Appeal
Dismissed; Case Remanded.
APPEARANCES:
For Plaintiffs-Appellants: Attorney Aletha Carver
Attorney John Maxwell
Attorney Matthew Mullen
Attorney Matthew Onest
Attorney Nathan Vaughn
4775 Munson Street, NW
P.O. Box 36963
Canton, Ohio 44735-6963
For Defendants-Appellees: Attorney James Wherley
Attorney Randolph Snow
Attorney Robert Preston III
220 Market Avenue, South
Canton, Ohio 44702
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: May 28, 2013
[Cite as Patriot Outdoors, L.L.C. v. Strata Petroleum, Inc., 2013-Ohio-2287.]
PER CURIAM:
¶{1} Plaintiff-appellee Patriot Outdoors, LLC, et al. appeals the decision of the
Monroe County Common Pleas Court granting summary judgment in favor of
defendants-appellants Strata Petroleum, Inc., et al. and denying the request for
summary judgment sought by appellee. Those orders were not appealed until after
the parties entered a stipulated entry attempting to voluntarily dismiss without
prejudice their remaining claims.
¶{2} Under Ohio Supreme Court law, the parties’ partial voluntary dismissals
of particular claims were ineffective. These claims thus remain pending. In
accordance, the October 2, 2012 stipulated entry, which is inextricably tied to the
attempted voluntary dismissals, is vacated.
¶{3} As the stipulated entry purporting to create a final order is vacated, there
is no final order remaining for purposes of this appeal. Hence, this appeal is
dismissed, and the case is remanded for further proceedings.
STATEMENT OF THE CASE
¶{4} In 2007, Wildlife Management Group, LLC purchased 1600 acres in
Harrison County. Cheryl Ramsburg is an attorney and was an owner of Wildlife. Some
of the acreage was conveyed to J.M. Morels, LLC and Harold and Ruth Smith’s Family
Retreat, LLC, and the ownership of the oil and gas rights were conveyed to Patriot
Outdoors, LLC, all of which are entities Ramsburg owns.
¶{5} Prior to the various conveyances, Ramsburg, on behalf of Wildlife,
signed an oil and gas lease giving Strata Petroleum, Inc. the right to extract said
substances from that land. The continuous development clause of the lease provides
that Strata was required to drill one well per year, which would extend the lease rent-
free for the years equal to the number of wells drilled. If additional wells are not drilled,
the lease provides for a delay rental fee of $5 per acre. The “Surrender of Lease;
Cancellation” clause provides pertinently:
Lessee shall have the right to surrender this lease or any portion
thereof by giving written notice to Lessor describing the portion which it
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elects to surrender, or by returning this Agreement to Lessor with the
endorsement of surrender thereof, or by recording the surrender or
partial surrender of this Agreement, any of which shall be a full and legal
surrender of this Agreement as to all the premises or such portion
thereof as the surrender shall indicate and a cancellation of all liabilities
under the same of each and all parties hereto relating in any way to the
portion or all the premises indicated on said surrender, and the land
rental herein before set forth shall be reduced in proportion to the
acreage surrendered.
¶{6} Strata drilled two wells on the property. Ramsburg on behalf of Patriot
and Strata’s President, James Massey, spoke of Strata releasing the lease (with the
exception of some land around the two wells) before the next well would be due to be
drilled in the fall of 2010. A release was drafted by Strata’s attorney but was never
provided to Ramsburg or recorded. Strata decided not to proceed with the release.
Ramsburg participated in discussions on behalf of Patriot with Chesapeake Energy
Corporation about selling the oil and gas rights.
¶{7} In December of 2010, Patriot Outdoors, LLC and Dave’s Leasing (a party
not at issue in the substance of this appeal) filed a complaint against Strata Petroleum,
Inc., alleging claims for intentional interference with a business relationship,
declaratory judgment that Strata’s execution and delivery of the release to the recorder
was effective to release the land from the lease (except for the 20 acres surrounding
the lease), specific performance of the release, breach of contract, slander of title,
quiet title, and injunction against entering the land. Some claims revolved around the
release, and some claims involved the delay rental payments.
¶{8} Strata filed an answer, a counterclaim, and a third-party complaint
against Cheryl Ramsburg and the various entities associated with her and the
property. Strata asked for their own injunction and for a declaratory judgment that the
release is ineffective and the lease is still in effect. One claim alleged fraud in the
inducement and fraudulent misrepresentation, claiming Ramsburg induced the oral
agreement to file a release by giving her legal opinion that the lease had already
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expired. There was also an allegation concerning the myriad property transfers done
prior to notifying Strata that the property deed had been recorded so that the leave
could be recorded. Strata also raised claims for tortious interference and breach of
contract.
¶{9} Amendments to the complaint added Ramsburg and her other entities as
plaintiffs, added Massey as a defendant, and added the theories of abandonment of
the lease and promissory estoppel. Other parties were involved at various points but
are no longer at issue for purposes of the substantive issues in this appeal.
¶{10} On May 31, 2012, competing summary judgment motions were filed.
The plaintiffs filed a motion for summary judgment on their complaint, the defendants’
counterclaims, and the defendants’ third-party complaint. The defendants filed a
motion for partial summary judgment arguing in main part that the lease was not
released and that Massey was not personally liable.
¶{11} On August 6, 2012, the trial court denied the plaintiffs’ motions for
summary judgment in various entries (with the exception of Dave’s Leasing, who was
granted summary judgment). In a separate entry filed that same day, the trial court
granted partial summary judgment in favor of the defendants. The court concluded
that the lease has specific requirements for a release and that none were satisfied.
Because the court found that surrender of the lease did not occur, various claims set
forth by the plaintiffs were dismissed. On an issue not appealed, the court held that
Strata made a timely initial delay rental payment in 2007. In doing so, the court noted
that summary judgment was not sought on the issue of whether the delay rental
payment in 2010 complied with the lease. Finally, the court granted summary
judgment in favor of Massey, finding that he is not personally liable.
¶{12} The remaining issues were then set for trial. However, on September
18, 2012, the parties signed a stipulated judgment entry claiming to have resolved all
pending claims, which the trial court signed and filed on October 2, 2012. In pertinent
part, this document provided that the plaintiffs were voluntarily dismissing without
prejudice: the count four declaratory judgment claim of all plaintiffs except Dave’s
Leasing; the count five slander of title claim of Dave’s Leasing; the count six breach of
contract claim of all plaintiffs; and the count eight injunction claim as to all plaintiffs
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except Dave’s Leasing. The document also provided that Strata was voluntarily
dismissing without prejudice: the count one breach of contract claim set forth in the
third-party complaint; the count two tortious interference with contract claim set forth in
the counterclaim and in the third-party complaint, and the count three fraud claim set
forth in the third-party complaint. Claims against other parties, not at issue, were also
dismissed without prejudice.
¶{13} The entry stated there now remained no pending claims and that none of
the parties were waiving their rights to appeal any prior order issued by the court. It
added that there was no just cause for delay under Civ.R. 54(B), declared that said
order of October 2, 2012 shall constitute a final appealable order, and stated that the
August 6, 2012 entries are final appealable orders for which there is no just cause for
delay. The entry then purported to allow refilling of the claims that were voluntarily
dismissed once the appellate courts have ruled.
VOLUNTARY DISMISSAL WITHOUT PREJUDICE
¶{14} Pursuant to Civ.R. 41(A)(1), a plaintiff, without order of court, may
dismiss all claims asserted by that plaintiff against a defendant by: (a) filing a notice of
dismissal at any time before the commencement of trial unless a counterclaim which
cannot remain pending for independent adjudication by the court has been served by
that defendant; or (b) filing a stipulation of dismissal signed by all parties who have
appeared in the action. The dismissal is without prejudice unless otherwise stated
therein, except that a notice of dismissal operates as an adjudication upon the merits
of any claim that the plaintiff has once dismissed in any court. Civ.R. 41(A)(1). The
provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-
party claim. Civ.R. 41(C). Notably, a voluntary dismissal is self-executing at the time
it is filed and does not require a court’s signature. State ex rel. Fifth Third Mtge. Co. v.
Russo, 129 Ohio St.3d 250, 2011-Ohio-3177, 951 N.E.2d 414, ¶ 17-18. See also
Discover v. Loncar, 7th Dist. No. 11MA47, 2012-Ohio-4113, ¶ 13 (any entry
memorializing the dismissal is not substantive and is not the trigger for an appeal).
¶{15} A dismissal without prejudice leaves the parties as if no action had been
brought with respect to the parties dismissed. Denham v. New Carlisle, 86 Ohio St.3d
594, 596-597, 716 N.E.2d 184 (1999). A trial court’s interlocutory decision granting
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summary judgment for one defendant will become final when the plaintiff voluntarily
dismisses the remaining parties under Civ.R. 41(A). Id. at syllabus. Thus, a voluntary
dismissal of one defendant does not nullify the claims against another defendant. Id.
at 597. However, such dismissal does nullify the claims brought against the defendant
named in the voluntary dismissal. Id.
¶{16} Based upon the non-syllabus portion of Denham, this court has
concluded that when a defendant is granted summary judgment on one claim and the
plaintiff then voluntarily dismisses the other claim, the summary judgment order is
nullified as the dismissal must apply to all claims asserted against that particular
defendant. Latronica v. Western Southern Life, Inc., 7th Dist. No. 04MA227, 2005-
Ohio-2935, ¶ 19-23 (vacating stipulated entry in refiled case as it was based upon an
agreement to make an order final which was not in fact final). See also Peters v.
Tipton, 7th Dist. No. 07HA3, 2008-Ohio-1524, fn.1 (where the appeal was “previously
dismissed by this court on the ground that a plaintiff cannot attempt to dismiss only his
remaining claims against a defendant in order to make a partial summary judgment
regarding that defendant final as the dismissal necessarily encompasses the entire
suit as to that defendant.”).
¶{17} The Supreme Court then further strengthened the non-syllabus portions
of Denham and justified our Latronica and Peters holdings. In Pattison v. W.W.
Grainger, Inc., the complaint set forth a statutory claim for age discrimination and a
common law claim of wrongful termination in violation of public policy. The trial court
granted summary judgment only on the statutory age discrimination claim. The
plaintiff appealed, but the Eighth District dismissed because the public policy claim had
not been disposed of by the summary judgment order. As a result, the plaintiff then
voluntarily dismissed the public policy claim without prejudice, hoping to make the
partial summary judgment appealable. The trial court thereafter filed an entry noting
this dismissal, and the plaintiff appealed again. The Eighth District found that the
voluntary dismissal created a final order but the appeal was untimely because it was
filed within thirty days of the court’s entry but not within thirty days of the plaintiff’s self-
executing voluntary dismissal.
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¶{18} The Ohio Supreme Court declined to address the timeliness issue
because the Supreme Court concluded that the Eighth District incorrectly found that
voluntary dismissal without prejudice could be entered on only one claim in order to
create a final order. Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-
5276, 897 N.E.2d 126, ¶ 6. The Court cited to Denham and pointed out that in order to
more completely align the language in that opinion, Civ.R. 41(A)(1) was amended,
changing the language from “[a]n action may be dismissed” to the current language
that a plaintiff may dismiss “all claims” against a defendant. Id. at ¶ 14-16, citing Staff
Note to July 1, 2000 amendment of Civ.R. 41(A).
¶{19} The rule applies to discrete parties, not discrete causes of action. Id. at ¶
18. Besides citing to the text of the rule, the Court also noted the desire to avoid
piecemeal litigation. Id. at ¶ 19. The Court then definitely announced that Civ.R. 41(A)
does not allow dismissal of a portion of the claims against a certain defendant. Id.
Thus, when a plaintiff has asserted multiple claims against a defendant, and some of
those claims have been ruled upon in an interlocutory order that was not subject to
appeal, the plaintiff may not create a final order by voluntarily dismissing the remaining
claims against the same defendant. Id. at ¶ 1, 10, 22. The Supreme Court reiterated
this holding the next year as well. Dohme v. Extrand Amercia, Inc., 121 Ohio St.3d
277, 2009-Ohio-506, 903 N.E.2d 1174 (where plaintiff voluntarily dismissed remaining
claim in attempt to make summary judgment on other claim final).
CONCLUSION
¶{20} Both parties voluntarily dismissed certain claims without prejudice
apparently in an attempt to make a final order. However, as can be seen from the
above case law, those voluntary dismissals of chosen claims are ineffective. As the
voluntary dismissals have been ruled ineffective, those claims voluntarily dismissed
without prejudice are revived.
¶{21} As such the October 2, 2012 entry based upon such voluntary dismissals
must be vacated. This is a stipulated entry, and we cannot pick and choose which
portions of the entry to apply. That is, most of the statements in the stipulated entry
(with the exception of some clarification regarding claims that were effectively
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disposed of by the partial summary judgment) were inextricably tied to the attempted
voluntary dismissals of the remaining claims.
¶{22} In fact, in two of the August 6, 2012 orders denying plaintiffs summary
judgment, the trial court found the request for summary judgment on Strata’s tortious
interference claims moot on the grounds that Strata had previously dismissed said
claims. This is a reference to Strata’s June 14, 2012 filing of notice of voluntary
dismissal without prejudice of count one (three distinct allegations of breach of
contract) and count two (tortious interference with business relationship/expectancy)
from its third-party complaint and count two (containing claims of tortious interference
with business relationship/expectancy and tortious interference with contract) from its
counterclaim. Because such voluntary dismissals were ineffective, the trial court did
not fully rule on the plaintiffs’ motions for summary judgment, which are part of the
attempted appeal herein. This requires a reconsideration on remand of the portion of
those August 6, 2012 entries finding the arguments about Strata’s voluntarily
dismissed claims moot.
¶{23} As the stipulated entry is vacated, there is no final order existing in this
case. This appeal is thus dismissed, and the case is hereby remanded for further
proceedings. Costs taxed against appellants.
Vukovich, J., concurs.
Donofrio, J., concurs.
Waite, J., concurs.