ALTERNATIVES UNLIMITED-SPECIAL, INC. v. OH. DEPT., 2002-04682 (5-21-2008)

2008-Ohio-2441

ALTERNATIVES UNLIMITED-SPECIAL, INC., et al., Plaintiffs, v. OHIO DEPARTMENT OF EDUCATION, Defendant.

No. 2002-04682.Court of Claims of Ohio.
Filed May 2, 2008, May 21, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Christopher N. Slagle Luther L. Liggett Terrence N. O’Donnell.

Susan M. Sullivan, Assistant Attorney General.

Kyle E. Lathwell, Mindy A. Worly, Assistant Attorneys General, Columbus, Ohio.

Page 3

JUDGMENT ENTRY
JOSEPH T. CLARK, Judge.

{¶ 1} On April 10, 2008, the court granted partial summary judgment in favor of defendant. On April 23, 2008, plaintiffs filed a motion to amend their complaint pursuant to Civ. R. 15(A) to dismiss all remaining claims against defendant without prejudice. Plaintiffs intend to file a notice of appeal of the court’s April 10, 2008 judgment to the Tenth District Court of Appeals. On April 28, 2008, defendant filed a waiver of objection to plaintiffs’ motion to amend complaint.

{¶ 2} Although there is some disagreement among Ohio appellate courts whether Civ. R. 15(A) is the appropriate procedural vehicle for a party to create a final appealable order under such circumstances, the majority of courts in Ohio favor that approach.[1] See Pattison v. W.W. Grainger, Inc., Cuyahoga App. No. 88556, 2007-Ohio-3081 Borchers v. Winzeler Excavating Co. (Apr. 10, 1992), Montgomery App. No. 13297; Lewis v. J.E. Wiggins Co., Franklin App. Nos. 04AP-469, 04AP-544, 04AP-668, 2004-Ohio-6724. Accordingly, plaintiffs’ motion to amend the complaint is GRANTED.

{¶ 3} Inasmuch as the court has previously granted summary judgment for defendant, the portion of the court’s June 14, 2007 entry scheduling trial for May 5-8, 2008, is hereby VACATED. Court costs are assessed against plaintiffs. The clerk shall serve upon all parties notice of this judgment and its date upon the journal.

[1] The following question has been certified to the Supreme Court of Ohio. “In a case where a plaintiff has asserted multiple claims against a single defendant and some of those claims have been ruled upon but not converted into a final order with Civ. R. 54(B), can the plaintiff create a final order by voluntarily dismissing pursuant to Civ. R. 41(A) the remaining claims asserted against that defendant.” Pattison v. W.W. Grainger, Inc., 115 Ohio St.3d 1406, 2007-Ohio-4884.