Guernsey Cty. Community Dev. Corp. v. Speedy , 2023 Ohio 1026 ( 2023 )

[Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2023-Ohio-1026.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GUERNSEY COUNTY COMMUNITY : JUDGES:
DEVELOPMENT CORPORATION : Hon. John W. Wise, P.J.
: Hon. Craig R. Baldwin, J.
Plaintiff-Appellee : Hon. Andrew J. King, J.
:
-vs- :
:
DANIEL L. SPEEDY, ET AL. : Case No. 22-CA-18
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 16-CV-335
JUDGMENT: Dismissed
DATE OF JUDGMENT: March 28, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
ERIK A. SCHRAMM, SR. BRADLEY JECKERING
KYLE W. BICKFORD DALIA G. SAFADI
46457 National Road West 16 South Main Street
St. Clairsville, OH 43950 Mechanicsburg, OH 43044
For Plaintiff-Intervenor Ohio Attorney General
THADDIUS A. TOWNSEND
LANCE CROFFOOT-SUEDE
30 East Broad Street, 25th Floor
Columbus, OH 43215
Guernsey County, Case No. 22-CA-18 2
King, J.
{¶ 1} Defendants-Appellants, Daniel L. Speedy, Dora Speedy, One Percent, LLC,
and Monster Management, LLC, appeal the June 1, 2022 judgment entry of the Court of
Common Pleas of Guernsey County, Ohio, granting a partial motion for summary
judgment filed by Plaintiff-Appellee, Guernsey County Community Development
Corporation ("GCCDC"). Intervening plaintiff is the Ohio Attorney General. We dismiss
the appeal.
{¶ 2} At the outset, we will address the issue of whether there is a final appealable
order before this court.
{¶ 3} Here the court is presented with a multi-party, multi-claim action that was
the subject of two voluntary dismissals, one filed by GCCDC and one filed by the
intervening plaintiff, and a partial summary judgment in favor of GCCDC. Appellants, who
are the subject of the adverse judgment, seek to appeal. In order for this court to have
jurisdiction, there must be a final appealable order before the court. State v. Craig, 159
Ohio St.3d 398, 401, 2020-Ohio-455, 151 N.E.3d 574; Ohio Constitution, Article IV,
Section 3(B)(2); R.C. 2953.02. Because the voluntary dismissals at issue here are without
prejudice, there is no final appealable order. Accordingly, the court dismisses this matter
for lack of jurisdiction.
{¶ 4} On February 2, 2018, GCCDC filed its multi-claim complaint against fifteen
defendants, including individuals, corporations, and government officers. The claims
asserted by GCCDC in its amended complaint are as follows: declaratory judgment (claim
one), civil conspiracy and RICO (claim two), breach of fiduciary duty, breach of contract,
Guernsey County, Case No. 22-CA-18 3
and fraud (claim three), breach of fiduciary duty, self-dealing, conversion, fraud, and
negligence (claim four), and replevin (claim five).
{¶ 5} GCCDC broke the fourth claim into several broad claims that involved either
the transfer of over eleven million dollars through one of the defendant's IOLTA (trust
account), oil and gas leases and royalties, the purchase and misuse of personal property,
the fraudulent and improper conveyances of real property, or the purchase of annuities
with GCCDC funds.
{¶ 6} In the amended complaint's prayer for relief, GCCDC requested several
types of relief: a declaratory judgment, replevin, compensatory and punitive damages,
disgorgement of certain assets, and attorney fees. The prayer for compensatory and
punitive damages, disgorgement, and attorney fees were related to claims two, three, and
four.
{¶ 7} On March 2, 2018, appellants filed an answer and three counterclaims
against GCCDC.
{¶ 8} GCCDC reached settlement with ten defendants and dismissed eleven
defendants in the action. This left appellants Daniel Speedy, Dora Speedy, One Percent,
LLC, and Monster Management, LLC as the only defendants against whom GCCDC filed
its motion for partial summary judgment. Daniel Speedy and Monster Management, LLC
were defendants to all five claims of the amended complaint. Dora Speedy and One
Percent, LLC were defendants to only claims four and five of the amended complaint.
{¶ 9} On March 13, 2022, GCCDC appeared to move for partial summary
judgment only on claim two and parts of claims three and four. See Plaintiff's Motion for
Partial Summary Judgment at 3. GCCDC also asserted it was not moving for summary
Guernsey County, Case No. 22-CA-18 4
judgment on "(1) the purchase and/or retention of equipment, (2) the purchase and early
withdrawal of annuities, and (3) the use of GCCDC assets for personal ventures." Id. at
fn. 1.
{¶ 10} Later in the motion, GCCDC stated it was seeking summary judgment as
follows: "1.) Judgment as a matter of law as to the claims set forth in the Counterclaim;
2.) Judgment as a matter of law the Consulting Period Release Agreement is void and of
no force and effect (sic); 3.) Judgment as a matter of law as to the Speedy Defendants'
breach of fiduciary duty, conversion, breach of contract, civil RICO, and civil conspiracy;
and 4.) Damages as follows, against Defendants Daniel Speedy, Dora Speedy, Monster
Management, LLC, and One Percent, LLC, jointly and severally, in the total amount of
$1,031,733.40." Id. at 31-32.
{¶ 11} GCCDC failed to include in its motion any reference to its claims regarding
negligence, fraud, self-dealing (counts three and four), and replevin (count five).
{¶ 12} The trial court adopted that section from GCCDC's motion nearly verbatim
in its June 1, 2022 order granting partial summary judgment. Accordingly, this entry left
parts of counts three and four and count five pending before the court. The trial court did
not certify there was no just cause for delay in its entry.
{¶ 13} On June 10, 2022, GCCDC filed a notice of dismissal without prejudice. On
June 13, 2022, the trial court memorialized GCCDC's dismissal without prejudice and
included in its entry there was no just cause for delay. On June 16, 2022, the Attorney
General, who was Plaintiff-Intervenor, filed a notice of dismissal without prejudice under
Civ. R. 41(A)(1)(a). On June 17, 2022, the trial court memorialized the Attorney General's
dismissal without prejudice and included in its entry there was no just cause for delay.
Guernsey County, Case No. 22-CA-18 5
{¶ 14} On June 23, 2022, appellants filed a notice of appeal. Appellants assigned
three errors, and the matter was briefed by appellants and GCCDC. Oral arguments were
heard on March 14, 2023. The issue of whether this was a final appealable order was
argued by the parties, and the parties argued the case on the merits.
{¶ 15} The court now turns to the impact of the two voluntary dismissals on this
appeal. A voluntary dismissal under Civ.R. 41(A)(1) operates to deprive both the trial and
appellate courts to hear anything further related to that action. DeWalt v. Tuscarawas
County Health Department, 5th Dist. Tuscarawas No. 2012 AP 05 0031, 2012-Ohio-5294,
¶ 28-30. Moreover, a voluntary dismissal under Civ. R. 41(A)(1) is self-executing. Id. at ¶
28.
{¶ 16} As applied to this matter, the Attorney General's notice of dismissal was
immediately effective when filed on June 16, 2022. This dismissal deprived the trial court
of jurisdiction; thus, the court's certification under Civ. R. 54(B) had no consequence.
Likewise, this court does not have jurisdiction over the matter related to the Attorney
General’s dismissal. The end result is the Attorney General's dismissal renders his case
like it never happened. Id.
{¶ 17} Although the court would have no jurisdiction over an appeal involving the
Attorney General's claims, the court must also review GCCDC's notice of dismissal to
determine whether there is jurisdiction.
{¶ 18} GCCDC's filing was styled as a "Notice of Dismissal," but we note the text
of the filing is inconsistent with that heading. GCCDC purported to voluntarily dismiss "all
remaining claims in Plaintiff's First Amended Complaint without prejudice."
Guernsey County, Case No. 22-CA-18 6
{¶ 19} Civ.R. 41(A)(1) permits a plaintiff to dismiss only the entire action. Pattison
v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126, ¶ 18-20.
A plaintiff may not create a final appealable order by dismissing select claims against the
defendant; it is an all or nothing proposition. Id. Thus, GCCDC cannot use Civ.R. 41(A)(1)
to create a final appealable order.
{¶ 20} It seems that perhaps the trial court recognized this incongruency and
treated GCCDC's notice as if it was a motion under Civ.R. 41(A)(2) to voluntarily dismiss
the remaining claims without prejudice. However, we conclude neither is this a final
appealable order. Huntington National Bank v. Molinari, 6th Dist. Lucas No. L-11-1223,
2012-Ohio-4993, ¶ 25. So long as the dismissal is without prejudice, there is not a final
appealable order under Civ. R. 41(A). See Grainger, supra.
{¶ 21} Further, the trial court's mere use of the Civ.R. 54(B) language did not
convert the entire action into a final appealable order. Wisintainer v. Elcen Power Strut
Co., 67 Ohio St. 3d 352, 354, 617 N.E.2d 1136 (1993). Because the dismissal here was
without prejudice, it was not a final appealable order. And a Civ.R. 54(B) certification
cannot be a substitute for that jurisdictional requirement.
{¶ 22} In contrast, a dismissal with prejudice of select claims can create a final
appealable order. See Luehrman v. Verma, 10th Dist. Franklin No. 12AP-1024, 2014-
Ohio-3335, ¶ 24; Groen v. Children's Hospital Medical Center, 2012-Ohio-2815, 972
N.E.2d 648, ¶ 17, (1st Dist.). But that was not the case here and this court lacks
jurisdiction to proceed to the merits.
Guernsey County, Case No. 22-CA-18 7
{¶ 23} Upon review, we find we do not have jurisdiction to review the merits of this
matter. The appeal is dismissed.
By King, J.
Wise, J. and
Baldwin, J. concur.
AJK/db