[Cite as Brigadier Constr. Servs., L.L.C., v. JLP Glass Prods., 2012-Ohio-2314.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97624 

BRIGADIER CONSTRUCTION SERVICES LLC

 PLAINTIFF-APPELLEE

vs. 

 JLP GLASS PRODUCTS, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT: 

DISMISSED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-734769 

BEFORE: Jones, J., Celebrezze, P.J., and Rocco, J. 

RELEASED AND JOURNALIZED: May 24, 2012 
ATTORNEYS FOR APPELLANT 

Harlan Karp 

850 Euclid Avenue 

Suite 1330 

Cleveland, Ohio 44114 

Eugene I. Selker 

Mazanec, Raskin & Ryder Co. 

100 Franklin’s Row 

34305 Solon Road 

Cleveland, Ohio 44139 

ATTORNEYS FOR APPELLEE 

Debra J. Horn 

Alan B. Dailide 

Rachel L. Steinlage 

Meyers, Roman, Friedberg & Lewis 

28601 Chagrin Boulevard 

Suite 500 

Cleveland, Ohio 44122
 

LARRY A. JONES, SR., J.: 

{¶1} Defendants-appellants JLP Glass Products and James Ponyicky (collectively 

“JLP Glass”) appeal the trial court’s denial of its motion for relief from judgment. For 

the reasons that follow, we lack jurisdiction to consider this appeal. 

{¶2} In 2009, plaintiffs-appellees Brigadier Construction Services, LLC, 

subcontracted with JLP Glass to have the company furnish labor, materials, equipment, 

and supervision for the installation of panels and walls as part of the Louis Stokes 

Cleveland VA Medical Center construction project. By February 2010, the parties 

decided to terminate their relationship and entered into a formal settlement agreement 

(“Agreement”). 

{¶3} In August 2010, Brigadier filed a three count complaint against JLP Glass, 

Ponyicky, who owned JLP Glass, and James Long, a JLP Glass employee, alleging breach 

of the Agreement (Counts I and II) and conversion (Count III) against all three parties.1

 

In January 2011, Brigadier moved for summary judgment. The motion went unopposed; 

on April 26, 2011, the trial court granted the summary judgment motion as to Counts I and 

II, but denied the motion as to Count III. 

{¶4} Subsequent to the trial court’s partial denial of its motion for summary 

judgment, Brigadier moved to amend its complaint to amend Counts I and II to name just 

 1

 Long is not a party to this appeal.
JLP Glass and Ponyicky and to dismiss Count III. The trial court denied the motion. 

Brigadier then moved to dismiss Count III with prejudice pursuant to Civ.R. 41(A)(1)(A). 

The trial court granted this motion on May 18, 2011. 

{¶5} On October 19, 2011, JLP Glass filed a motion for relief from judgment, 

which Brigadier opposed and the trial court denied, without hearing. 

{¶6} It is from this order that JLP Glass and Ponyicky now appeal, raising the 

following assignments of error for our review: 

I. The trial court abused its discretion in denying Appellants’ Rule 60(B) 

Motion and failing to hold a hearing where Appellants cited 

Misrepresentation/Fraud on the court, meritorious defenses were asserted[,] 

and Appellees misrepresented their claims for relief and the [p]ersonal 

[l]iability of Appellant Ponyicky. 

II. The trial court erred in finding that a Notice of Partial Dismissal of 

Count III with prejudice under Civil Rule 41(A)(1) was a final order. 

III. The trial court erred to the prejudice of Defendants-Appellants in 

denying a protective order staying execution [where] Civil Rule 60(B) relief 

was sought, operative facts were established, and the record is unclear 

whether there was indeed a final judgment. 

Lack of a Final Appealable Order

{¶7} We are unable to reach the merits of the appeal, however, because we do not 

have jurisdiction over the appeal. Appellate jurisdiction is limited to reviewing a lower 

court’s final judgment. Section 3(B)(2), Article IV of the Ohio Constitution. To be a 

final, appealable order, a judgment entry must meet the requirements of R.C. 2505.02 and, 

if applicable, Civ.R. 54(B). Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 
88, 541 N.E.2d 64 (1989). 

{¶8} According to Civ.R. 54(B), an action is not terminated unless the court has 

resolved all of the claims or the rights and liabilities of all of the parties, or the court has 

specified that there is no just reason for delay. Thus, a motion for summary judgment 

that fails to adjudicate all claims against all parties is interlocutory absent the required 

Civ.R. 54(B) language. Goldney v. Byrd, 8th Dist. No. 88285, 2007-Ohio-1985; Perritt 

v. Nationwide Mut. Ins. Co., 10th Dist. No. 03AP-1008, 2004-Ohio-4706. 

{¶9} Brigadier filed suit against JLP Glass, its owner Ponyicky, and its employee, 

Long. In its complaint, Brigadier alleged that all three were jointly and severally liable 

for breach of the Agreement (Counts I and II) and conversion (Count III). In its motion 

for summary judgment, Brigadier requested summary judgment only as to JLP Glass and 

Ponyicky on Counts I and II but as to the company, Ponyicky, and Long on Count III. 

The trial court subsequently granted summary judgment “as to the claims for 

compensatory damages against [JLP Glass] and [Ponyicky], jointly and severally, in the 

total amount of $16,782.00,” which was the amount prayed for in Counts I and II. The 

court denied Count III as follows: “[t]he motion is denied as to defendant Jesse L. Long on 

the conversion claim” and “as to punitive damages and attorney’s fees on the conversion 

claim. Therefore, the claim against defendant Long and the punitive damage claim 

against all defendants remain pending for adjudication.” 

{¶10} Thus, at this point, all claims remained against Long and part of the 
conversion claim remained against JLP Glass and Ponyicky.2

 Brigadier admitted as 

much when, in its motion to file an amended complaint, it stated that “based on [the 

court’s summary judgment] ruling, Count III (for conversion) and all claims against 

Defendant Long remain pending.” (Emphasis added.) 3

 In its proposed amended 

complaint, Brigadier amended the allegations so as to include only JLP Glass and 

Ponyicky on Counts I and II and deleted Count III, in its attempt to create a final order. 

The trial court, however, denied Brigadier’s motion to file the amended complaint. 

Because the trial court denied the motion, the claims remained pending. Brigadier then 

filed a dismissal with prejudice as to Count III only; Brigadier never dismissed Counts I 

and II against Long. 

{¶11} The trial court issued an order stating “plaintiff dismisses count three of its 

complaint with prejudice. There are no remaining claims for adjudication and this case is 

hereby placed on the court’s inactive docket.” The court erred, however, because the 

claims for breach of the Agreement remained, and still remain, pending against Long. 

{¶12} The claims against Long for breach of contract, Counts I and II, remain 

pending for adjudication. Without an express determination that there was no just reason 

for delay, the order dismissing Count III of the complaint was not a final order. Civ.R. 

 2

 The claim for conversion requested compensatory damages, punitive damages, and attorney 

fees.

3

 In fact, in its appellate brief, Brigadier reiterated that based on the trial court’s summary 

judgment ruling, “Count Three (for conversion) and all claims against Defendant Long remain 

pending.” P. 2 Brief of Appellee Brigadier Construction Services, LLC.
54(B). Consequently, we are without jurisdiction to consider this appeal. 

{¶13} Appeal dismissed. 

It is ordered that appellee recover of appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas 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. 

 

LARRY A. JONES, SR., JUDGE 

FRANK D. CELEBREZZE, JR., P.J., CONCURS; 

KENNETH A. ROCCO, J., DISSENTS WITH 

SEPARATE OPINION 

KENNETH A. ROCCO, J., DISSENTING:

{¶14} Although not mentioned in the majority opinion, the heart of this case is 

whether the Ohio Supreme Court’s decision in Pattison v. W.W. Grainger, Inc. applies 

when a party dismisses with prejudice its remaining unadjudicated claims. 120 Ohio 

St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126. I would hold that Pattison does not apply 

where a plaintiff moves for leave to amend under Civ.R. 15(A) to dismiss its remaining 

unadjudicated claims; where that motion is denied; and where the plaintiff then voluntarily 

dismisses all unadjudicated claims with prejudice under Civ.R. 41(A). Because Brigadier 
did just that, I would hold that this case presents us with a final appealable order. 

Accordingly, I respectfully dissent. 

{¶15} After the trial court granted, in part, Brigadier’s motion for summary 

judgment, Brigadier then filed a motion under Civ.R. 15(A) for leave to amend its 

complaint so that it could remove its conversion claim and begin to collect on its judgment 

with respect to the two breach of contract claims. The trial court denied the motion on 

May 16, 2011. 

{¶16} As a result, on May 18, 2011, Brigadier instead voluntarily dismissed the 

conversion claim under Civ.R. 41(A). Importantly, Brigadier dismissed the remaining 

claim with prejudice. On May 24, 2011, the trial court indicated on the docket that, 

because there were no remaining claims for adjudication, the case would be placed on the 

court’s inactive docket. 

{¶17} In other words, Brigadier attempted to amend its complaint under Civ.R. 

15(A), and only after its motion was denied, did it voluntarily dismiss with prejudice its 

remaining claim under Civ.R 41(A)(1). Under this procedural posture, there is a final 

appealable order. 

{¶18} Appellants’ argument, that the Ohio Supreme Court’s decision in Pattison

applies to this case and that there is no final appealable order, is misplaced. In Pattison, 

the court held that a party who dismisses claims under Civ.R. 41(A) must dismiss all 

claims against a party or else there is no final appealable order. Pattison, 120 Ohio St.3d 

142, 2008-Ohio-5276, 897 N.E.2d 126, at ¶ 1. There was more than one basis for the 
court’s decision in Pattison, but the main rationale was that if a plaintiff did not have to 

dismiss all of its claims to effectuate a final appealable order, then: 

a plaintiff could create a final and appealable order as to one 

issue under Civ.R. 41(A) while still saving the dismissed claim 

to be refiled later. To allow a partial Civ.R. 41(A) dismissal 

is potentially prejudicial to defendants. In cases in which all 

claims against a party are dismissed without prejudice, there 

still is the risk of the action being refiled, but the amount of 

potential litigation that a defendant is subjected to is the same. 

(Emphasis added). Id. at ¶ 20. This rationale makes sense when a party uses Civ.R. 

41(A) to dismiss a claim without prejudice. However, Civ.R. 41(A) provides that 

“[u]nless otherwise stated in the notice of dismissal or stipulation, 

the dismissal is without prejudice * * * .” (Emphasis added.) Civ.R. 41(A)(1). 

{¶19} But in the instant case, Brigadier gave notice that it was dismissing its third 

cause of action with prejudice. The rationale behind the Pattison rule does not apply in 

the case where a party voluntarily dismisses with prejudice because there is no risk to the 

defendant that the plaintiff can refile. 

{¶20} Further, Brigadier did everything within its power to comply with the 

Pattison decision. In Pattison, the court explained that a party who wishes to obtain a 

final appealable order and wishes to dismiss some but not all claims should move for leave 

to amend its complaint under Civ.R. 15(A) rather than using Civ.R. 41(A). Pattison at ¶ 
19. 

{¶21} In the instant case Brigadier attempted to do just that. Brigadier filed for 

leave to amend the complaint under Civ.R. 15(A), but for some unknown reason, the court 

denied the motion.4

 It was not until then that Brigadier availed itself of Civ.R. 41(A) and 

dismissed the remaining claim with prejudice. Brigadier did everything within its power 

to dismiss its remaining claim, to protect the defendant from the possibility of future 

litigation, and to create a final appealable order so that it could effectuate judgment. 

{¶22} Although the Pattison decision is based, in part, on the text of Civ.R. 41(A), 

the holding appears to rest mostly on the policy decision to protect defendants against the 

possibility that claims voluntarily dismissed without prejudice could later be refiled. In 

light of this rationale, we should distinguish Pattison from the instant case and hold that 

Pattison does not apply where a party dismisses its remaining claims with prejudice.

{¶23} This result makes much more sense than forcing a party who moved for, but 

was not granted, leave to amend under Civ.R. 15(A) to make the choice between 

continuing to litigate a claim that it wishes to abandon or else to give up the claims for 

which it has already won a judgment in its favor.

{¶24} Accordingly, I would not dismiss this case for lack of a final appealable order 

and would reach the merits of the case. I would hold that Pattison does not apply where 

a plaintiff moves under Civ.R. 15(A) for leave to amend to dismiss its remaining claims; 

where the motion is denied; and where the plaintiff then voluntarily dismisses all 

 4

Civ.R. 15 (“Leave of court shall be freely given when justice so requires”). 
unadjudicated claims with prejudice under Civ.R. 41(A). I believe this holding gives due 

deference to the Pattison decision and also avoids creating Kafkaesque results.