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Marianne Ray, et al v. Wal-Mart Stores

September 28, 2011

MARIANNE RAY, ET AL., PLAINTIFFS-APPELLANTS,
v.
WAL-MART STORES, INC., ET AL., DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Harsha, P.J.

Cite as Ray v. Wal-Mart Stores, Inc.,

DECISION AND JUDGMENT ENTRY

{¶1} Marianne and John Ray appeal the decision granting summary judgment in favor of Wal-Mart Stores, Inc. and related entities. The Rays filed a negligence action after Marianne tripped and fell on produce crates that were partially protruding from underneath a display table in the produce section of the Wal-Mart in Marietta, Ohio. The trial court concluded there were no genuine issues of fact concerning whether WalMart breached a duty of care and granted summary judgment in its favor. The Rays contend a genuine issue exists for trial concerning whether Wal-Mart created the hazard by placing the crates in the produce section.

{¶2} However, we lack jurisdiction over this appeal because the summary judgment is not a final appealable order. Along with their claim of negligence, the Rays filed a claim asserting "spoliation of evidence," essentially alleging that Wal-Mart destroyed videotapes of the accident. Neither the trial court nor the parties addressed this claim in the summary judgment proceedings. Before filing this appeal, the Rays filed a "notice of partial dismissal" purporting to voluntarily dismiss the spoliation claim under Civ.R. 41(A). However, Civ.R. 41(A) permits a plaintiff to dismiss "all claims" asserted against a defendant, i.e., the entire complaint. A plaintiff cannot use Civ.R. 41(A) to voluntarily dismiss claims yet to be decided in the trial court for the purposes of creating a final order on the claims that the court has ruled on, e.g., claims disposed of through summary judgment. Accordingly, we dismiss this appeal.

I. Summary of the Case

{¶3} Marianne filed a complaint against Wal-Mart alleging that, while shopping in the produce section of the Marietta Wal-Mart store, she tripped over stacked black produce crates that were partially protruding from underneath a produce display table. John Ray, her husband, also alleged damages from his loss of consortium. Additionally, the complaint set forth a "spoliation and destruction of evidence" claim, which alleged that Wal-Mart failed to preserve videotape evidence related to the accident .

{¶4} Wal-Mart filed a motion for summary judgment arguing that the protruding black crates were an "open and obvious" hazard, thus obviating it of a duty to warn Marianne. The trial court agreed and granted summary judgment in its favor. It then issued a judgment entry ordering, "Plaintiffs' Complaint is dismissed, with prejudice."

{¶5} We reversed on appeal, concluding that a genuine issue of fact remained concerning whether the partially protruding crates constituted an open and obvious hazard. See Ray v. Wal-Mart Stores, Inc., Washington App. No. 08CA41, 2009-Ohio- 4542, at ¶41.*fn1 Our opinion also noted that when the trial court granted Wal-Mart summary judgment it dismissed the Rays' complaint in full, apparently including the spoliation of evidence claim. Id. at ¶42, fn.3. In dicta, we observed that the law generally prohibits sua sponte dismissal of claims not raised or argued in summary judgment proceedings. Id. But because neither party raised the issue we did not address it either and concluded that our reversal of the trial court's summary judgment permitted Ray to "proceed with this [spoliation] claim on remand." Id.

{¶6} After our remand, Wal-Mart filed a second motion for summary judgment, this time arguing that no genuine issues of fact existed concerning a breach of any duty owed to Marianne. The trial court again granted summary judgment in favor of Wal- Mart, but noted that the "spoliation of evidence" claim remained pending. Five days before filing the notice of appeal in this case, the Rays filed a "notice of partial dismissal" in which they purported to dismiss the spoliation claim, under Civ.R. 41(A). II. Assignment of Error

{¶7} The Rays present one assignment of error:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS-APPELLEES BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT REGARDING LIABILITY.

III. No Final Appealable Order

{¶8} Neither party addresses it, but before we can approach the merits of this appeal, we must decide whether we have jurisdiction to do so. Appellate courts "have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district[.]" Section 3(B)(2), Article IV, Ohio Constitution; see, also, R.C. 2505.03(A). If a court's order is not final and appealable, we have no jurisdiction to review the matter and must dismiss the appeal. Eddie v. Saunders, Gallia App. No. 07CA7, 2008-Ohio- 4755, at ¶11. If the parties do not raise the jurisdictional issue, we must raise it sua sponte. Sexton v. Conley (Aug. 7, 2000), Scioto App. No. 99CA2655, 2000 WL 1137463, at *2.

{ΒΆ9} Under R.C. 2505.02, an order is final when it is: an order that affects a substantial right in an action that in effect determines the action and prevents a judgment; an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; an order that vacates or sets aside a ...


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