Opinion
21CA011808
07-24-2023
JOYCE MORGAN Appellee/Cross-Appellant v. CONSUN FOOD INDUSTRIES, INC Appellant/Cross-Appellee
FRANK CONSOLO, Attorney at Law, for Appellant/Cross-Appellee. NATALIE F. GRUBB and MARK E. OWENS, Attorneys at Law, for Appellee/Cross-Appellant.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 18CV194912
FRANK CONSOLO, Attorney at Law, for Appellant/Cross-Appellee.
NATALIE F. GRUBB and MARK E. OWENS, Attorneys at Law, for Appellee/Cross-Appellant.
DECISION AND JOURNAL ENTRY
DONNA J. CARR, Judge.
{¶1} Defendant-Appellant Consun Food Industries, Inc. appeals the judgment of the Lorain County Court of Common Pleas. Plaintiff-Appellee Joyce Morgan has filed a cross-appeal. This Court dismisses the appeal and cross-appeal.
I.
{¶2} This matter is a re-filed action. It was originally filed in 2014, but the claims against Consun Food Industries, Inc. were dismissed without prejudice. It appears from the record that Ms. Morgan later re-filed her action against Consun Food Industries, Inc. in federal court. The federal cause of action was dismissed as time-barred and the state law claims were dismissed without prejudice.
{¶3} In April 2018, Ms. Morgan filed a five-count complaint against Consun Food Industries, Inc. for gender discrimination, hostile work environment based upon gender, constructive discharge on the basis of gender, negligent hiring, and negligent retention/supervision. Ms. Morgan sought compensatory and punitive damages and attorney fees. Ms. Morgan alleged in the complaint that she was an employee of Consun Food Industries from September 9, 2011 to May 27, 2012. Ms. Morgan maintained that another employee repeatedly acted inappropriately towards her and other women and even assaulted Ms. Morgan. Ms. Morgan asserted that she and other employees complained about this employee, but nothing was done about it. On May 27, 2012, Ms. Morgan resigned from her position after her concerns were not addressed by the company.
{¶4} Thereafter, Consun Food Industries, Inc. filed a motion to dismiss Ms. Morgan's action as being filed outside the timeframe authorized by the savings statute. In June, the trial court denied the motion. Consun Food Industries, Inc. filed an answer and raised as an affirmative defense that the complaint was filed outside the time permitted by the Ohio Savings Statute.
{¶5} The parties filed competing motions for summary judgment; however, the trial court denied both of them. Consun Food Industries, Inc. filed a second motion for summary judgment based upon res judicata. The trial court again denied the motion.
{¶6} Prior to trial, on June 25, 2021, Ms. Morgan filed a document titled "Plaintiff's Notice of Dismissal with Prejudice of Plaintiff's Claim for Negligent Hiring Only[.]" Therein, Ms. Morgan stated that she "hereby dismisses her claim for Negligent Hiring (identified as Count IV in her Complaint) with prejudice. All other claims in all other counts of the Complaint remain for adjudication at trial, including [] Count V for negligent retention/supervision." (Emphasis omitted.)
{¶7} The matter proceeded to a jury trial. The jury found in favor of Ms. Morgan and awarded her $127,888.85 in compensatory damages and $25,000 in punitive damages. Ms. Morgan filed a motion for prejudgment interest and costs. A hearing was subsequently held. The trial court denied Ms. Morgan's motion for prejudgment interest but awarded her attorney fees in the amount of $68,799.71 and costs. Consun Food Industries, Inc. then filed a motion for judgment notwithstanding the verdict and a motion for the trial court to journalize its ruling denying Consun Food Industries, Inc.'s motions for directed verdicts.
{¶8} On October 29, 2021, Consun Food Industries, Inc. filed a notice of appeal and Ms. Morgan filed a notice of cross-appeal in November 2021. On November 10, 2021, while the matter was on appeal, the trial court denied Consun Food Industries, Inc.'s motions.
{¶9} On November 19, 2021, this Court questioned whether the June 25, 2021 voluntary dismissal of fewer than all claims against Consun Food Industries, Inc. was valid under Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276. Morgan v. Consun Food Industries, Inc., 9th Dist. Lorain No. 21CA011808 (Nov. 19, 2021). Consun Food Industries, Inc. additionally filed a notice of supplemental appeal in an attempt to appeal the trial court's rulings denying the motions for judgment notwithstanding the verdict and to journalize rulings on the motions for directed verdicts. In January 2022, this Court concluded that the voluntary dismissal was a nullity and that the trial court lacked jurisdiction to enter the rulings on the motions for judgment notwithstanding the verdict and to journalize the rulings on the motions for directed verdicts. Thus, this Court dismissed the appeals. See Morgan v. Consun Food Industries, Inc., 9th Dist. Lorain No. 21CA011808 (Jan. 25, 2022).
{¶10} In February 2022, Ms. Morgan moved to reinstate the appeal arguing that Pattison was not controlling. Upon review, this Court provisionally reinstated the appeal and cross-appeal so that the Court could consider the issue during the final disposition of the matter. See Morgan v. Consun Food Industries, Inc., 9th Dist. Lorain No. 21CA011808 (Apr. 20, 2022). Then, after Consun Food Industries, Inc. notified the Court of additional possible outstanding issues, this Court remanded the matter to the trial court so that it might rule upon them. The trial court ruled upon Consun Food Industries, Inc.'s re-filed motion for judgment notwithstanding the verdict, and Consun Food Industries, Inc. filed motions to amend the notice of appeal to include the new entry and to amend its brief to add an additional assignment of error. The motions were granted.
{¶11} Consun Food Industries, Inc. has raised six assignments of error for our review, and Ms. Morgan has raised two assignments of error in her cross-appeal.
II.
CONSUN FOOD INDUSTRIES, INC.'S ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING CONSUN'S CIV.[R.] 50(A) MOTION FOR DIRECTED VERDICT ON PLAINTIFF'S CAUSE OF ACTION FOR NEGLIGENT RETENTION/SUPERVISION.
CONSUN FOOD INDUSTRIES, INC.'S ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING CONSUN'S CIV.[R.] 50(A) MOTION FOR DIRECTED VERDICT ON PLAINTIFF'S CAUSE OF ACTION FOR GENDER DISCRIMINATION.
CONSUN FOOD INDUSTRIES, INC.'S ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING CONSUN'S CIV.[R.] 50(A) MOTION FOR DIRECTED VERDICT ON PLAINTIFF'S CAUSE OF ACTION FOR HOSTILE WORK ENVIRONMENT BASED ON HER CO-WORKER'S SEXUAL HARASSMENT.
CONSUN FOOD INDUSTRIES, INC.'S ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING CONSUN'S FEBRUARY 2, 2002 MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON PLAINTIFF'S CAUSES OF ACTION FOR 1) GENDER DISCRIMINATION; 2) HOSTILE WORK ENVIRONMENT BASED ON GENDER; AND 3) NEGLIGENT RETENTION/SUPERVISION.
CONSUN FOOD INDUSTRIES, INC.'S ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING CONSUN'S MOTION TO DISMISS THE COMPLAINT.
CONSUN FOOD INDUSTRIES, INC.'S ASSIGNMENT OF ERROR VI
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING CONSUN'S OBJECTIONS TO TESTIMONY OF PLAINTIFF'S EXPERT AND ALLOWANCE OF TESTIMONY BY PLAINTIFF'S EXPERT IN CONTRAVENTION OF EVID.[R.] 702, INCLUDING BY GIVING LEGAL CONCLUSIONS, INVADING THE PROVINCE OF THE JURY, AND OPINING ON MATTERS THAT WERE NOT BEYOND THE KNOWLEDGE OR EXPERIENCE POSSESSED BY LAY PERSONS.
MS. MORGAN'S ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO AWARD THE FULL ATTORNEY FEES REQUESTED BY CROSS-APPELLANT.
MS. MORGAN'S ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO AWARD PREJUDGMENT INTEREST TO CROSS-APPELLANT.
{¶12} While Consun Food Industries, Inc. has raised six assignments of error and Ms. Morgan has raised two, we conclude we are unable to address the merits of those arguments because the parties have not appealed from a final appealable order.
{¶13} "As a threshold issue, we are required to raise sua sponte issues pertaining to our jurisdiction." Miller v. Foster, 9th Dist. Summit Nos. 24186, 24209, 2009-Ohio-2675, ¶ 7, quoting State v. Keith, 9th Dist. No. 08CA009362, 2009-Ohio-76, at ¶ 5. "[A]n appellate court may not review an order disposing of fewer than all claims in the absence of Rule 54(B) language." Perez Bar &Grill v. Schneider, 9th Dist. Lorain No. 09CA009573, 2010-Ohio-1352, ¶ 5. (Internal quotations and citations omitted.)
{¶14} On June 25, 2021, Ms. Morgan filed a notice of dismissal of her claim for negligent hiring with prejudice. Ms. Morgan took no action with respect to her remaining four pending claims and they were later tried to a jury. The trial court did not utilize Civ.R. 54(B) language in its judgment entry.
{¶15} Pursuant to Civ.R. 41(A)(1),
Subject to the provisions of Civ. R. 23(E), Civ. R. 23.1, and Civ. R. 66, a plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant by doing either of the following:
(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;
(b) filing a stipulation of dismissal signed by all parties who have appeared in the action.
Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, 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)(2) provides that, "[e]xcept as provided in division (A)(1) of this rule, a claim shall not be dismissed at the plaintiff's instance except upon order of the court and upon such terms and conditions as the court deems proper."
{¶16} Thus, "Civ.R. 41(A) allows for a dismissal of all claims against particular defendants." Pattison, 120 Ohio St.3d 142, 2008-Ohio-5276, at ¶ 20. "The rule 'does not allow for the dismissal of a portion of the claims against a certain defendant.'" Miller, 2009-Ohio-2675, at ¶ 9, quoting Pattison, 120 Ohio St.3d 142, 2008-Ohio-5276, at ¶ 18. Said another way, "Civ.R. 41(A) applies to discrete parties, not discrete causes of action." Pattison at ¶ 18.
{¶17} Ms. Morgan argued in her briefing in support of jurisdiction that the holding in Pattison should not apply to the facts of this case because Ms. Morgan attempted to dismiss her claim with prejudice, whereas the party in Pattison dismissed the outstanding claim without prejudice. See id. at ¶ 4. Ms. Morgan correctly noted that the policy concerns are different when a claim is dismissed without prejudice and that the Supreme Court referenced those concerns in determining the appeal before it was not final and appealable. See id. at ¶ 20-21. It is also true that other appellate courts have concluded that the holding in Pattison does not apply if the claim is dismissed with prejudice. See Groen v. Children's Hosp. Med. Ctr., 1st Dist. Hamilton No. C-100835, 2012-Ohio-2815, ¶ 13-17; see also Luehrman v. Verma, 10th Dist. Franklin No. 12AP-1024, 2014-Ohio-3335, ¶ 22-24 (relying on the reasoning in Groen). In Groen, the First District, relying on case law from prior to the 2001 amendments to Civ.R. 41(A), concluded that the appeal was properly before it because a dismissal with prejudice operates as an adjudication on the merits and is therefore final and appealable. See id. at ¶ 14.
{¶18} We do not necessarily take issue with the general idea of dismissals with prejudice being final. Instead, the problem we are faced with is whether the attempted dismissal with prejudice was effective. We conclude it was not because the plain language of Civ.R. 41(A)(1) does not allow for the dismissal of a portion of the claims against a particular defendant. Pattison, 120 Ohio St.3d 142, 2008-Ohio-5276, at ¶ 18. Thus, even if the policy concerns are different for dismissal with and without prejudice, Civ.R. 41(A)(1) only "allows for a dismissal of all claims against particular defendants." Pattison at ¶ 20. Moreover, while the facts of Pattison involved a dismissal without prejudice, the language of the holding of Pattison is not limited to dismissals without prejudice. See id. at ¶ 1.
{¶19} Accordingly, we can only conclude that Ms. Morgan's claim for negligent hiring remains pending in the trial court and the appeal and cross-appeal must be dismissed as we lack jurisdiction to consider them.
III.
{¶20} The attempted appeal and cross-appeal are dismissed.
Appeal and cross-appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
SUTTON, P. J.
HENSAL, J. CONCUR.