Mahoney v. HB Emp. Servs., L.L.C. , 2011 Ohio 5186 ( 2011 )

[Cite as Mahoney v. HB Emp. Servs., L.L.C., 2011-Ohio-5186.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96603
GERALDINE MAHONEY
PLAINTIFF-APPELLANT
vs.
HB EMPLOYEE SERVICES, L.L.C., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-717684
BEFORE: E. Gallagher, J., Blackmon, P.J., and Sweeney, J.
2
RELEASED AND JOURNALIZED: October 6, 2011
ATTORNEYS FOR APPELLANT
Amy S. Glesius
Matthew D. Besser
Bolek Besser Glesius LLC
Monarch Centre, Suite 302
5885 Landerbrook Drive
Cleveland, Ohio 44124
ATTORNEY FOR APPELLEES
Kathryn W. Pascover
Ford & Harrison LLP
795 Ridge Lake Boulevard
Suite 300
Memphis, Tennessee 38120
EILEEN A. GALLAGHER, J.:
{¶ 1} Geraldine Mahoney appeals from the trial court’s grant of
defendants’ Horizon Bay Employee Services, L.L.C., and Horizon Bay
Manager’s (hereinafter “Horizon Bay”) motion for summary judgment on her
claim of negligent retention, training, and supervision. Mahoney argues
that the trial court erred when it determined that her claim was untimely.
For the reasons that follow, we dismiss for lack of a final appealable order.
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{¶ 2} Mahoney was formerly employed as an administrative assistant
at Woodside Village, a retirement community in Bedford, Ohio owned and
operated by Horizon Bay. In October 2005, Kerri Bemus became the
Woodside Village office manager and Mahoney’s supervisor. Mahoney
claimed that shortly after becoming her supervisor, Bemus began treating
Mahoney less favorably than substantially younger employees because of
Mahoney’s age. Mahoney alleged that Bemus criticized her, denied her
breaks, denied her the opportunity to attend administrative meetings, and
made negative comments about her age.
{¶ 3} On May 16, 2008, Horizon Bay terminated Mahoney’s
employment. Mahoney alleged that her termination and Bemus’s
discriminatory conduct was the result of Horizon Bay’s and Jill Risner’s,
Bemus’s supervisor, failure to sufficiently and/or effectively train Bemus on
equal employment opportunity laws and that Horizon Bay failed to exercise
reasonable care in retaining, training and/or supervising Bemus in her
capacity as a managerial employee. On February 5, 2010, Mahoney
filed the instant lawsuit against Horizon Bay, Bemus, Risner, and
CallSource Incorporated alleging age discrimination, aiding and abetting age
discrimination, negligent retention, training, and supervision, and unlawful
wiretapping. Claims one, two, and four applied to all four defendants while
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Mahoney’s claim of negligent retention, training, and supervision applied
only to Horizon Bay. On April 30, 2010, Horizon Bay, Bemus, and Risner
filed a motion to dismiss, or alternatively, a motion for summary judgment
on all claims. Specifically, the defendants claimed the following: Mahoney’s
claims of age discrimination and aiding and abetting age discrimination
must fail because Mahoney elected to pursue those charges with the Equal
Employment Opportunity Commission; Mahoney’s claim of unlawful
wiretapping must fail because an exception to the wiretapping statute
applied; and lastly, Mahoney’s claim of negligent retention, training, and
supervision was untimely. On August 27, 2010, the trial court granted the
defendants’ motion for summary judgment.
{¶ 4} On September 28, 2010, Mahoney voluntarily dismissed, without
prejudice, three of the four claims against the only-remaining defendant,
CallSource Inc. Only Mahoney’s claim of aiding and abetting age
discrimination remained. On October 15, 2010, CallSource filed a motion to
dismiss the remaining claim, which the trial court granted on March 2, 2011.
{¶ 5} Mahoney now appeals the trial court’s dismissal of her claim of
negligent retention, training, and supervision, which she alleges became a
final order when the trial court dismissed the last remaining claim against
CallSource Inc. on March 2, 2011.
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{¶ 6} However, as an initial matter, we find that the judgment from
which Mahoney appeals is not a final appealable order. Ohio law provides
that appellate courts have jurisdiction to review only final orders or
judgments. Section III(B)(2), Article IV, Ohio Constitution; R.C. 2505.02.
If an order is not final and appealable, an appellate court has no jurisdiction
to review the matter.
{¶ 7} In Pattison v. W.W. Grainger, 120 Ohio St.3d 142,
2008-Ohio-5276, 897 N.E.2d 126, the Ohio Supreme Court determined that
when a plaintiff has asserted multiple claims against one defendant, and
some of those claims have been ruled upon but not been converted into a
final appealable order, a plaintiff may not create a final order by voluntarily
dismissing without prejudice the remaining claims against the same
defendant.
{¶ 8} In Pattison, the Supreme Court interpreted the language of
Civ.R. 41(A)(1), which states “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.” The
court interpreted this language to find that dismissal of a single claim among
others against the same defendant is not permitted by Civ.R. 41. See
Denham v. City of New Carlisle (1999), 86 Ohio St.3d 594, 716 N.E.2d 184.
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The court further stated:
“The language used in both Denham and Civ.R. 41(A)(1) expressly
states that the rule can be used to dismiss ‘all claims’ against a single
defendant. It does not allow for the dismissal of a portion of the
claims against a certain defendant. Civ.R. 41(A) applies to discrete
parties, not discrete causes of action. In Denham, this court wrote
that a Civ.R. 41(A) dismissal ‘render[s] the parties as if no suit had
ever been brought, but only with respect to the parties dismissed.’
Denham, 86 Ohio St.3d at 597, 716 N.E.2d 184. However, when used
as in this case to dismiss only certain causes of action, Civ.R. 41(A)
does not place the defendant in the position he would be in ‘if no suit
had ever been brought,’ since the case against the defendant continues
in the court of appeals.”
{¶ 9} Although the procedural facts in the instant case are
distinguishable from the procedural history of Pattison, we find the Ohio
Supreme Court’s logic equally applicable. In the present case, Mahoney
voluntarily dismissed three out of the four causes of action against
CallSource Inc. pursuant to Civ.R. 41(A)(1). Less than one month later, the
trial court granted CallSource’s motion to dismiss the remaining claim.
Accordingly, this case presents the reverse of the facts as contained in
Pattison. Nonetheless, the Supreme Court’s holding that Civ.R. 41(A)(1)
cannot be used to dismiss partial claims against a single defendant applies
equally to this case. To allow otherwise would permit piecemeal litigation
and piecemeal appeals, which are disfavored in the law. Borchers v.
Winzeler Excavating Co. (Apr. 10, 1992), Montgomery App. No. 13297;
Pattison.
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{¶ 10} Thus, we conclude that Mahoney’s use of Civ.R. 41(A)(1) to
partially dismiss CallSource Inc. from the instant lawsuit does not create a
final appealable order when the trial court later dismisses with prejudice,
the last remaining claim against that same defendant. See, also, Civ.R.
41(A)(1); Pattison; Borchers; and Savage v. Cody-Zeigler, Inc., Athens App.
No. 06CA5, 2006-Ohio-2760.
{¶ 11} For the foregoing reasons, this appeal is hereby dismissed.
It is ordered that appellees recover from appellant costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, P.J., and
JAMES J. SWEENEY, J., CONCUR
Appendix
Assignment of Error:
“I. Even though Geraldine Mahoney filed her negligent retention,
training and supervision claim within two years of at least one of the
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tortious acts she alleged against her former employer and supervisors,
the trial court dismissed her claim as untimely. It erred in doing so.”