[Cite as Patterson v. New Partners Ltd. , 2020-Ohio-1017.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) ERIC PATTERSON, et al. Appellants

v. NEW PARTNERS LTD, et al. Appellee C.A. No. 29448

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2016 11 4897

DECISION AND JOURNAL ENTRY Dated: March 18, 2020

SCHAFER, Judge. {¶1} Plaintiff-Appellants, Eric Patterson and Laura Patterson appeal the order of the Summit County Court of Common Pleas denying their motion for sa nctions against DefendantAppellee, Swagelok Associates Welfare Benefit Plan-Medical Bene fits Program (“Swagelok Plan”). For the reasons that follow, this Court dismisses the attempted appeal for lack of jurisdiction.

I. {¶2} On November 25, 2014, Mr. Patterson was severely injured in a m otor vehicle

accident with a tractor-trailer truck. Mr. Patterson incurred significant medical bills following the

accident. At the time of the co llision, Mr. Patterson was cove red by the Swagelok Plan, a health insurance plan offered through hi s employer, the Swagelok Compa ny. {¶3} The Pattersons subsequently filed a complaint asserting claims against Roger Siegel, the driver of the tractor-trailer; Nationwide Truck Bro kers, Inc, (“Nationwide Truck”), the2

owner of the tractor-trailer; American Family Insurance Company (“American Family”), the insurer of Mr. Patterson’s motor vehicle; Summa Health System ( “Summa”), Mr. Patterson’s medical provider; the Swagelok Pl an; and United Healthcare, Inc . (“United Healthcare”), the administrator of the Swagelok Pl an. The Pattersons amended the ir complaint on December 5, 2016, to correct the name of defe ndant Nationwide only. {¶4} Thereafter, American Family filed an answer to the Pattersons’ complaint, a counterclaim against the Patters ons, and cross-claims against N ationwide Truck and Mr. Siegel.

Summa filed an answer to the Pa ttersons’ complaint and a counte rclaim against the Pattersons. Swagelok Plan filed an answer to the Pattersons’ complaint and a counterclaim against the

Pattersons. The Pattersons subs equently dismissed their compla int against Summa, and Summa

dismissed its counterclaim against the Pattersons. {¶5} Relevant to this appeal, about f our months after the Pattersons filed their initial complaint, United Healthcare, through Attorney Shaun Byroads, f iled an answer to the Pattersons’ complaint as well as cross-claims against Nationwide Truck, Mr. Siegel, and American Family.

United Healthcare’s cross-claims all asserted that United Healt hcare had subrogation rights in this case. That same day, Attorney Byroads filed a notice of substi tution of counsel, informing the trial court and the other parties that Attorney Byroads was thereby s ubstituted as counsel for Swagelok Plan. From that point on, Attorney Byroads represented both Un ited Healthcare and Swagelok

Plan in this case. {¶6} On March 17, 2017, the Pattersons filed a motion for default ju dgment against United Healthcare arguing that United Healthcare’s answer was n ot timely. Following a hearing, a joint stipulation was filed indicating that “interested parti es” stipulated that any subrogation or reimbursement rights were the exc lusive right of Swagelok Plan. The joint stipulation was signed3

by the trial court and included an order finding the Pattersons ’ motion for default judgment was moot and purporting to dismiss Un ited Healthcare without prejud ice. {¶7} Following mediation, counsel for t he Pattersons, American Famil y Insurance, Nationwide, Mr. Siegel, and Swagelok Plan filed a stipulated di smissal with prejudice stipulating

that the matter had been se ttled and dismissed, with prejudice. {¶8} Subsequent to the filing of the stipulated dismissal, evidence allegedly undermining Swagelok Plan’s asserted subroga tion and reimbursement rights i n this case was discovered in a separate matter involving the Pa ttersons and Swagelok plan. Th e Pattersons thereafter filed a motion for sanctions in this case, asserting that Swagelok Plan and its counsel concealed that evidence—despite the Pattersons’ specific request for productio n—during discovery in this case. Following briefing by the parties, the trial court determined i t did not have jurisdiction to consider

the Pattersons’ motion. {¶9} The Pattersons filed this timely appeal, asserting one assignme nt of error for our

review.

II. Assignment of Error The trial court erred in holding that it did not retain jurisdi ction to consider [the Pattersons’] motion for san ctions following the voluntary dismissal of all claims pursuant to Civ.R. 41(A).

{¶10} In their sole assignment of erro r, the Pattersons contend that the trial court erred in

when it determined it did not ha ve jurisdiction to consider the ir motion for sanctions. {¶11} As a threshold matter, this Cour t questions its jurisdiction to hear this appeal. This Court is obligated to raise sua sponte questions related to our jurisdiction. Whitaker-Merrell Co. v. Geupel Constr. Co., Inc. , 29 Ohio St.2d 184, 186 (1972). Upon review of the initial fi lings, this4

Court determined that it was unclear whether all claims against all parties had been resolved, and specifically questioned whether United HealthCare’s cross-claim s had been resolved. This Court stated that if claims remained pe nding in this case, the trial court’s order denying the Pattersons’ motion would be interlocutory, and further questioned whether t hat order would be immediately appealable. See Dillon v. Big Trees, Inc. , 9th Dist. Summit No. 23831, 2008-Ohio-3264, ¶ 13. {¶12} At this Court’s request, the pa rties filed memoranda addressing the issue. This Court issued a magistrate’s order provisionally determining tha t the matter could proceed, but indicating that this Court may revisit its jurisdiction during the final disposition of the appeal. We

elect to do so now. {¶13} “In the absence of a final, appealable order, this Court must d ismiss the appeal for lack of subject matter jurisdiction.” In re Estate of Thomas , 9th Dist. Summit No. 27177, 2014- Ohio-3481, ¶ 4; see Ohio Constitution, Article IV, Section 3(B) (2). “This rule of finality prevents piecemeal litigation, avoids delay , and thereby promotes judici al economy.” State v. Torco

Termite Pest Control , 27 Ohio App.3d 233, 234 (10th Dist.1985). Consequently, if a n order is filed that does not resolve all claims against all parties in a n action that asserts more than one claim, that order must meet the requirements of both Civ.R. 54( B) and R.C. 2505.02 to be final and appealable. Chef Italiano Corp. v. Kent State University , 44 Ohio St.3d 86, 88 (1989). However, “a judgment in an action which determines a claim in t hat action and has the effect of rendering moot all other claims in the action as to all other p arties to the action is a final appealable order pursuant to R.C. 2505.02, a nd Civ.R. 54(B) is not applica ble to such a judgment.” Wise v. Gursky , 66 Ohio St.2d 241, 243 (1981).5

{¶14} In their memoranda, both the Pa ttersons and Swagelok contend th at all claims in this matter were resolved prior to the trial court’s denial of the Pattersons’ motion for sanctions. A review of the record does not support this contention. {¶15} First, both Swagelok Plan and the Pattersons assert that the jo int stipulation resolved all claims against United Healthcare as well as United Healthcare’s cross-claims. The joint stipulation sta ted in its entirety: The interested parties of Plaintiff Eric L. Patterson and Defen dants Swagelok [Plan] and United Healthcare hereby sti pulate the subrogation rights ( if any) and reimbursement rights (if any) are the exclusive right of the Sw agelok [Plan] which paid the medical claims and is already a party to this case and is represented by undersigned counsel. It is hereby ordered that Plaintiff’s Mot ion for Default Judgment is moot as to United H ealthcare, Inc. and United Healt hcare, Inc. is hereby dismissed without prejudice. This joint stipulation was signed by the trial judge and indica tes approval by Attorney Shaun D. Byroads in his capacity as “Counsel for Swagelok [Plan]” and At torney Benjamin Pfouts in his capacity as “Counsel for Pla intiff Eric Patterson.” {¶16} There is no indication on the fa ce of the joint stipulation tha t United Healthcare approved the stipulation. Althoug h United Healthcare was refer enced as an interested party, counsel for United Healthcare did not sign the joint stipulatio n or otherwise indicate approval on behalf of United Healthcare in any way. This Court has previou sly stated that “[w]hen there are multiple parties, a stipulation is not binding upon a party who did not sign it, but remains ‘effective and binding’ as to the parties who did sign it.” Graves Lumber Co. v. Croft , 9th Dist. Summit Nos. 26624, 26678, 2014-Ohio-4324, ¶ 30, quoting DeWitt v. Jensen , 2d Dist. Montgomery No. 25768, 2014-Ohio-529, ¶ 22. Consequently, t he joint stipulation was n ot binding on United Healthcare. {¶17} Swagelok Plan asserts that the signature of Attorney Byroads wa s sufficient to show United Healthcare’s approval of the joint stipulation because h e represented both Swagelok and6

United Healthcare in this matter. However, from the face of th e joint stipulation, it is plain that Attorney Byroads only signed the stipulation in his capacity as counsel for Swagelok Plan. The record reflects that Swagelok Plan and United Healthcare are se parate entities. As such, Attorney Byroads’ approval of the joint stipulation as “Counsel for Swag elok [Plan]” is not sufficient to

bind United Healthcare. {¶18} Contrary to Swagelok Plan and th e Pattersons’ assertion, the pu rported dismissal of

United Healthcare as a defendant in the joint stipulation does not explicitly resolve or even address United Healthcare’s cross-claims. Even assuming the language o f the joint stipulation stating that

United Healthcare was “dismisse d without prejudice” was suffici ent to dismiss all claims against United Healthcare, we cannot say t hat the joint stipulation ord er disposed of United Healthcare’s cross-claims, which specifically assert subrogation rights against Mr. Siegel, Nationwide Truck , and American Family. {¶19} Next, both Swagelok Plan and the Pattersons assert that, even i f the joint stipulation did not dispose of United Healthcare’s cross-claims, the subseq uent stipulated dismissal with prejudice adjudicated all claims against all parties. Upon rev iew of the stipulated dismissal, we disagree. {¶20} The stipulated dismissal states in full: We, the attorneys for the respective parties, do hereby stipula te that this case has been settled and dismissed, with prejudice. Costs to Defendant s [Nationwide Truck and Mr. Siegel]. Notice by the Clerk is hereby waived. The stipulated dismissal is signe d by the trial judge and indic ates approval by counsel for the Pattersons, Nationwide Truck, Mr. Siegel, American Family, and Swagelok Plan. Like the joint stipulation, the stipulated dis missal does not indicate approva l by counsel for United Healthcare.7

{¶21} Civ.R. 41 governs the dismissal of actions, including cross-cla ims. Civ.R. 41(C). Civ.R. 41(A) specifically addresses voluntary dismissals. Civ.R. 41(A)(1) provides for a plaintiff’s voluntary dismissal without court order of all clai ms asserted by plaintiff against a

defendant. Pursuant to Civ.R. 41(A)(1)(a), a plaintiff may vol untarily dismiss all claims by “filing a notice of dismissal at any time before the commencement of tr ial unless a counterclaim which cannot remain pending for indepe ndent adjudication by the court has been served by that defendant[.]” Civ.R. 41(A)(1)(b) provides that a plaintiff may voluntarily dismiss an action by “filing a stipulation of dismissal signed by all parties who have appeared in the action.” (Emphasis added.) Thus, a stipulated dis missal under Civ.R. 41(A)(1)(b) does not require a court order, but “requires the cooperation of the opposing party or parties for the dismissal to be accomplished.” Olynyk v. Scoles , 114 Ohio St.3d 56, 2007-Ohio-2878, ¶ 25. {¶22} A voluntary dismissal may also be accomplished by order of the court pursuant to Civ.R. 41(A)(2). That rule provide s that “a claim shall not be dismissed at the plaintiff’s instance except upon order of the court a nd upon such terms and conditio ns as the court deems proper.” A court order of voluntary dismissal is “obtained by virtue of a motion for dismissal.” (Emphasis sic.) 1970 Staff Notes to Civ.R. 41. {¶23} The stipulated dismissal in this case does not state under whic h subsection of Civ.R. 41 the parties intended to dismi ss the matter. Though not argu ed in their memoranda, the

Pattersons assert in the ir merit brief that the stipulated dism issal was pursuant to Civ.R. 41(A)(1). Swagelok Plan, on the other hand, asserts in its merit brief th at the stipulated dismissal was made pursuant to Civ.R. 41(A)(2). {¶24} The stipulated dismissal in t his case was a stipulation and not a notice of dismissal under Civ.R.41(A)(1)(a). However, a review of the record shows that, although the trial court8

signed the stipulated dismissal, it did not purport to dismiss the case pursuant to court order. Rather, the stipulated dismissal—titled “Stipulated Dismissal w ith Prejudice”—merely memorialized the stipulation of “the attorneys for the respecti ve parties * * * that this case has been SETTLED AND DISMISSED, WITH PREJUDICE.” Because the parti es did not move the court for an order of dismissal pursuant to Civ.R. 41(A)(2), th is stipulated dismissal simply memorialized the stipulation of those parties, and the attempte d dismissal could only have been made pursuant to Civ.R. 41(A)(1)(b). {¶25} As indicated above, a stipulated d ismissal pursuant to Civ.R. 4 1(A)(1)(b) requires the signature of all parties in order to be effective. Civ.R. 41(A)(1)(b); Hutz v. Gray , 11th Dist. Trumbull No. 2008-T-0100, 2009-Ohio-3410, ¶ 32 (“[A] Civ.R. 41( A)(1)(b) dismissal is ineffective if one of the parties fails to sign it.”) Therefor e, because counsel for United Healthcare did not sign the stipulated dismi ssal, it was ineffective. {¶26} Swagelok Plan next argues—possibly under the assumption that th e trial court dismissed the matter pursuant t o Civ.R. 41(A)(2)—that the use o f the term “case” in the statement that “[w]e, the attorneys for the respective parties, do hereby stipulate that this case has been settled and dismissed, with prejudice” combined with signed approval of Swagelok Plan and United Healthcare’s shared counsel, Attorney Byroads, was sufficient t o show the intent of the parties was to dismiss all remaining claims i n this matter. Although we ha ve already determined that the stipulated dismissal was ineffective in this case, we again not e that it is clear from the record that Swagelok Plan and United Healthca re are separate entities. As such, Attorney Byroads’ approval of the stipulated dismissal as “Counsel for Swagelok [Plan]” is not sufficient to indicate approval

of the dismissal on behalf of United Healthcare.9

{¶27} Finally, both Swagelok Plan and the Pattersons argue in the alt ernative that the trial court’s order denyin g the Pattersons’ motion for sanctions was itself a final appealable order because it constituted a denial of a provisional remedy. See R.C. 2505.02(B)(4). However, even assuming the order constitutes th e denial of a provisional reme dy, because claims remain pending in this matter, it was necessary for the order to comply with C iv.R. 54 to be final and appealable. Chef Italiano Corp. , 44 Ohio St.3d at 88. Civ.R. 54(B) s tates in part that a tria l court may enter a final judgment on fewer than all claims or parties in an action “only upon an express determination that there is no just reason for delay.” A review of the order denying the Pattersons’ motion for

sanctions shows that the trial court made no such determination

. {¶28} Based on the foregoing, we conclude that this attempted appeal must be dismissed for lack of subject matter jurisdiction. See In re Estate of Thomas , 2014-Ohio-3481 at ¶ 4.

III. {¶29} The Pattersons’ attempted appeal is dismissed for lack of a fin al appealable order. Appeal dismissed.

Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30.10

Costs taxed to Appellants.

JULIE A. SCHAFER FOR THE COURT

TEODOSIO, P. J. CARR, J. CONCUR.

APPEARANCES: BENJAMIN P. PFOUTS, Attorney at Law, for Appellants.

SHAUN D. BYROADS a nd DARAN P. KIEFER, Attorneys at Law, for App ellee.