Asbestos-containing materials caused cancer?

Ohio Appellate Reports

Unpublished

HUTCHINSON v. BEAZER EAST, INC., Unpublished Decision
(12-21-2006) 2006-Ohio-6761 WENTON HUTCHINSON, ET AL.
PLAINTIFFS-APPELLANTS v. BEAZER EAST, INC., ET AL.
DEFENDANTS-APPELLEES. Nos. 86635 & 87897. Court of Appeals
of Ohio, Eighth District, Cuyahoga County. RELEASED:
December 21, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Civil Appeal from the Cuyahoga County Court
of Common Pleas, Case No. CV-499030.

For Wenton and Marie Hutchinson, Thomas W. Bevan, John D.
Mismas, Patrick M. Walsh, Bevan & Associates, L.P.A., Inc.,
Ohio 44067.

Bruce Carter, Ohio 45014, ATTORNEYS FOR APPELLANTS.

For Tasco Insulation, Inc., Ryan P. Kennedy, Susan Squire
Box, Brad A. Rimmel, Laura M. Faust, Roetzel & Andress,
Ohio 44308, ATTORNEYS FOR APPELLEES.

BEFORE: Cooney, J., Celebrezze, P.J., and McMonagle, J.

JUDGEMENT:

REVERSED AND REMANDED

COLLEEN CONWAY COONEY, J.

{para; 1} In this consolidated appeal, Wenton and Marie
Hutchinson (“the Hutchinsons”), appeal the trial court’s
decision granting judgment in favor of defendant-appellee,
Tasco Insulation, Inc. (“Tasco”). Finding merit to the
appeal, we reverse and remand for further proceedings.

{¶ 2} In 2001, the Hutchinsons filed suit against
Tasco and numerous defendants alleging that the use of
asbestos-containing materials caused Wenton Hutchinson to
develop cancer. (“Hutchinson I”). Tasco moved for summary
judgment, alleging that the Hutchinsons failed to identify
that Tasco’s product caused the injury.

{¶ 3} Subsequently, the Hutchinsons moved to amend
their complaint to add a count for “spoliation of evidence”
against Tasco. Tasco moved to strike the amended complaint,
arguing that it was untimely because trial was set the
following week. Tasco also claimed that the amended
complaint failed to allege a prima facie case for spoliation
of evidence.

{¶ 4} The court conducted a hearing on both Tasco’s
motion for summary judgment and the Hutchinsons’ motion to
amend their complaint. During the hearing, the court
considered arguments pertaining to Tasco’s motion for
summary judgment and those pertaining to the Hutchinsons’
alleged spoliation of evidence claim.

{¶ 5} Following the hearing, the trial court denied
the Hutchinsons’ motion to amend their complaint to add the
spoliation claim. The court also granted Tasco’s motion for
summary judgment, reasoning that “Tasco was not identified
in connection with any asbestos containing products.” This
judgment entry did not include Civ.R. 54(B) language needed
for a final appealable order.

{¶ 6} The case against the remaining defendants
proceeded, and prior to the empaneling of the jury in the
case against Beazer East, the Hutchinsons orally dismissed
their case pursuant to Civ.R. 41. A nunc pro tunc entry
reflecting this dismissal stated:

“On April 7, 2003, the case was called for trial. A jury
was ordered. Prior to empaneling and swearing the jury,
the plaintiff, in open court and on the record, dismissed
the case without prejudice pursuant to Civ.R. 41(A),
subject to the right to refile within one year.”

{¶ 7} Prior to the dismissal, the Hutchinsons did
not appeal any previous court orders, including the
granting of Tasco’s motion for summary judgment and the
court’s decision denying their motion to amend the
complaint.

{¶ 8} On April 15, 2003, the Hutchinsons refiled
their complaint against Tasco and other defendants,
asserting claims of negligence, strict liability, breach of
warranty, loss of consortium, and punitive damages.
(“Hutchinson II”). This complaint also alleged a claim
against Tasco for spoliation of evidence.

{¶ 9} Tasco moved to dismiss this complaint pursuant
to Civ.R. 12(B)(6) based on the doctrine of res judicata.
Alternatively, Tasco moved to dismiss the claim for
spoliation of evidence. Tasco argued that the Hutchinsons’
claims were barred by res judicata because they were fully
adjudicated in Hutchinson I when the trial court granted
Tasco’s motion for summary judgment. In addition, Tasco
claimed that res judicata also barred the Hutchinsons’
claim for spoliation of evidence because the claim was
fully adjudicated in Hutchinson I. They argued, in the
alternative, that the Hutchinsons failed to state a claim
for spoliation of evidence in their complaint. Although the
Hutchinsons acknowledged that the court previously granted
Tasco summary judgment, they denied that the spoliation of
evidence claim had been fully adjudicated on the merits.

{¶ 10} Following a hearing on Tasco’s motion, the
court dismissed the action against Tasco based on the
doctrine of res judicata, stating that, “The doctrine of
res judicata prevents Plaintiff from maintaining the
instant lawsuit since Tasco was granted summary judgment on
all claims in Plaintiff’s original lawsuit * * *.”

{¶ 11} The Hutchinsons then filed a Civ.R. 60(B)
motion for relief from judgment, arguing that their Civ.R.
41 voluntary dismissal in Hutchinson I nullified the trial
court’s interlocutory orders granting Tasco’s motion for
summary judgment and denying their motion to amend the
complaint to add a claim for spoliation. The Hutchinsons
also filed a notice of appeal of the trial court’s decision
granting Tasco’s motion to dismiss in Hutchinson II. That
appeal is designated Case No. 86635.

{¶ 12} This court granted a limited remand to the
trial court for the purpose of ruling on the Hutchinsons’
Civ.R. 60(B) motion. The trial court denied the motion and
the Hutchinsons have appealed that decision, which is
designated Case No. 87897. The two cases have been
consolidated for purposes of argument and disposition.

{¶ 13} The Hutchinsons argue in their sole
assignment of error that the trial court erred in granting
judgment in favor of Tasco on the basis of res judicata.

{¶ 14} In order to prevail on a Civ.R. 12(B)(6)
motion, it must appear beyond doubt from the complaint that
the plaintiff can prove no set of facts entitling him to
recover. A court is confined to the averments set forth in
the complaint and cannot consider outside evidentiary
materials. Greeley v. Miami Valley Maintenance Contrs. Inc.
(1990), 49 Ohio St.3d 228, 551 N.E.2d 981; Wickliffe
Country Place v. Kovacs, 146 Ohio App.3d 293,
2001-Ohio-4302, 765 N.E.2d 975. Moreover, a court must
presume that all factual allegations set forth in the
complaint are true and must make all reasonable inferences
in favor of the nonmoving party. Mitchell v. Lawson Milk
Co. (1988), 40 Ohio St.3d 190, 532 N.E.2d 753.

{¶ 15} We note initially that the trial court should
have converted the Hutchinsons’ motion to dismiss to a
motion for summary judgment when it considered materials
and evidence outside of the complaint. See, Civ.R. 12(B).
It is well established that a Civ.R. 12(B)(6) motion is not
the proper method for resolving a claim on the basis of res
judicata, because any res judicata analysis must necessarily
examine pleadings beyond the complaint. State ex rel.
Freeman v. Morris (1991), 62 Ohio St.3d 107, 109, 579
N.E.2d 702; Shaper v. Tracy, 73 Ohio St.3d 1211, 1212,
1995-Ohio-37, 654 N.E.2d 1268. Further, in Freeman, the
Ohio Supreme Court stated: “Civ.R. 8(C) designates res
judicata an affirmative defense. Civ.R. 12(B) enumerates
defenses that may be raised by motion and does not mention
res judicata. Accordingly, we hold that the defense of res
judicata may not be raised by motion to dismiss under
Civ.R. 12(B).” Id., citing Johnson v. Linder (1984), 14 Ohio
App.3d 412, 471 N.E.2d 815. Instead, summary judgment is
the preferred means by which to address res judicata.
Cooper v. Highland Cty. Bd. of Commrs., Highland App. No.
01CA15, 2002-Ohio-2353, ¶ 11.

{¶ 16} Nevertheless, we consider the court’s error
harmless because the court afforded both parties a
reasonable opportunity to present matters outside the
pleadings at the oral hearing on Tasco’s motion to dismiss.
See, e.g. Ins. Co. of N. Am. v. Reese Refrig. (1993), 89
Ohio App.3d 787, 793, 627 N.E.2d 637. Furthermore, neither
party has raised this issue on appeal. Accordingly, we
review this matter de novo.

{¶ 17} The Hutchinsons first argue on appeal that
the trial court erred in granting Tasco’s motion to dismiss
based on res judicata in Hutchinson II because the court’s
decision granting summary judgment in favor of Tasco and
the court’s decision denying their motion to amend the
complaint in Hutchinson I never became final appealable
orders.

{¶ 18} Where there are multiple claims and/or
multiple parties to an action, an order of a court is a
final appealable order only if the requirements of both
R.C. 2505.02 and Civ.R. 54(B) are met. Chef Italiano Corp.
v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d
64, syllabus. Civ.R. 54(B) provides:

“When more than one claim for relief is presented in an
action* * *, or when multiple parties are involved, the
court may enter final judgment as to one or more but fewer
than all of the claims or parties only upon an express
determination that there is no just reason for delay. In
the absence of a determination that there is no just reason
for delay, any order * * * which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all
the parties, shall not terminate the action as to any of
the claims or parties * * *.”

{¶ 19} An order that neither disposes of all parties
and/or claims between the parties nor contains an express
determination that there is no just reason for delay is an
interlocutory order. Civ.R. 54(B); Kvinta v. Kvinta,
Franklin App. No. 02AP-836, 2003-Ohio-2884, at ¶ 20.
An order of a trial court granting summary judgment but not
containing Civ.R. 54(B) language that there is no just
reason for delay is interlocutory. See Jackson v. Allstate
Ins. Co., Montgomery App. No. 20443, 2004-Ohio-5775, at
¶ 18.

{¶ 20} When an order of a trial court is
interlocutory, the order remains subject to revision or
modification by the trial court until and unless the order
is certified as suitable for appeal, or the action is
finally terminated as to all claims and all parties. Chef
Italiano, supra at 90; Kocijan v. S & N, Inc., Cuyahoga
App. No. 80414, 2002-Ohio-3775. Once a final judgment is
issued terminating a case, all interlocutory orders are
merged into the final judgment of the court and become
appealable. Marc Glassman, Inc. v. Fagan, Cuyahoga App. No.
87164, 2006-Ohio-5577, citing MacConnell v. Safeco Prop.,
Montgomery App. No. 21147, 2006-Ohio-2910. However, a
voluntary dismissal pursuant to Civ.R. 41(A) may dissolve
all interlocutory orders.

{¶ 21} Civ.R. 41(A) provides that a plaintiff,
without order of the court, may voluntarily dismiss all
claims asserted against a defendant by filing a notice of
dismissal at any time before the commencement of trial.
Such a dismissal is without prejudice unless the claims
were previously dismissed, then it operates as an
adjudication on the merits.

{¶ 22} In Denham v. City of New Carlisle, 86 Ohio
St.3d 594, 597, 1999-Ohio-128, 716 N.E.2d 184, the Ohio
Supreme Court held that “a voluntary dismissal pursuant to
Civ.R. 41(A) renders the parties as if no suit had ever
been filed against only the dismissed parties.”

{¶ 23} Consistent with this holding, Ohio courts
have held that when an entire action is dismissed without
prejudice pursuant to Civ.R. 41(A), as opposed to only
certain claims or parties, interlocutory orders which do
not contain Civ.R. 54(B) language that there is no just
reason for delay are dissolved and are not appealable.
Cleveland Indus. Square, Inc. v. Dzina, Cuyahoga App. Nos.
85336, 85337, 85422, 85423, 85441, 2006-Ohio-1095, citing
Fairchilds v. Miami Valley Hosp., Inc., 160 Ohio App.3d
363, 2005-Ohio-1712, 827 N.E.2d 381, appeal dismissed as
improvidently allowed, 109 Ohio St.3d 1229, 2006-Ohio-3055,
849 N.E.2d 292, Stratton, J. dissenting; Toledo Heart
Surgeons v. The Toledo Hospital, Lucas App. No. L-02-1059,
2002-Ohio-3577; Charles Gruenspan Co., L.P.A. v. Thompson
(Oct. 12, 2000), Cuyahoga App. No. 77276.

{¶ 24} Therefore, whether a voluntary dismissal
pursuant to Civ.R. 41(A) dissolves interlocutory orders
depends on whether the plaintiff dismisses the entire case
or dismisses only certain parties. The significance of the
distinction determines whether the doctrine of res judicata
applies. As stated in Toledo Heart Surgeons, a dissolved
order has no res judicata effect. Id. at Tj 28.

{¶ 25} In the instant case, the trial court’s
decision granting summary judgment in favor of Tasco in
Hutchinson I was an interlocutory order because the trial
court did not enter Civ.R. 54(B) certification that there
was no just reason for delay, considering there were
multiple parties involved and an adjudication on fewer than
all claims was made. This is not in dispute in the instant
case. Rather, the parties dispute whether the Hutchinsons
dismissed their case in its entirety against all parties or
dismissed their case only against Beazer East.

{¶ 26} Tasco argues that the facts and the record
establish that the Hutchinsons dismissed only the remaining
parties, and therefore the holding in Denham applies, and
the Hutchinsons’ subsequent complaint filed in Hutchinson
II should be dismissed under the doctrine of res judicata.
However, the Hutchinsons argue that the record shows that
they dismissed their entire case without prejudice and
thus, the holding in Fairchilds applies, and res judicata
does not bar the refiling of the complaint in Hutchinson
II. Therefore, this appeal hinges on the Hutchinsons’ oral
dismissal at the April 7, 2003 hearing and the court’s
subsequent nunc pro tunc journal entry.

{¶ 27} The court’s journal entry addressing the
April 2003 dismissal of Hutchinson I states:

“On April 7, 2003, the case was called for trial. A jury
was ordered. Prior to empaneling and swearing the jury,
the plaintiff, in open court and on the record, dismissed
the case without prejudice pursuant to Civ.R. 41(A),
subject to the right to refile within one year.”

{¶ 28} Tasco argues that the dismissal applied only
to defendant, Beazer East. They make this assertion based
on a statement contained in the Hutchinsons’ “Pretrial
Statement and Case History,” wherein they stated: “On April
7, 2003 Plaintiffs voluntarily dismissed the Hutchinson
case against Beazer East pursuant to Civ.R. 41(A).”
However, the Hutchinsons claim that the court’s entry
demonstrates that the case was dismissed in its entirety.

{¶ 29} This is a case of “he said, she said,” where
the evidence needed to resolve this dispute, the transcript
of the April 7, 2003 hearing, has not been provided to this
court. Nevertheless, the court’s entry clearly states that
the “case” was dismissed “without prejudice pursuant to
Civ.R. 41(A).” It is axiomatic that in Ohio a court speaks
through its journal entries. State v. King (1994), 70 Ohio
St.3d 158, 637 N.E.2d 903. See, also, State ex rel.
Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 551
N.E.2d 183. Absent any transcript showing that the oral
motion made by the Hutchinsons at trial applied only to
Beazer East, we cannot say that the case was dismissed
solely as to Beazer East.

{¶ 30} Although Tasco argues that the Hutchinsons
“admitted” in their Pretrial Statement and Case History
that the case was dismissed as to Beazer East only, Tasco
had the duty at that point to ask the trial court pursuant
to Civ.R. 60(A) to correct the record as it pertained to
the alleged clerical mistake contained in the journal entry
in Hutchinson I. Moreover, Tasco could have, on appeal,
asked for a correction of the record pursuant to App.R.
9(E). However, Tasco has failed to take any steps to remedy
this alleged error.

{¶ 31} Furthermore, Tasco could have asked the trial
court to include Civ.R. 54(B) language when granting its
summary judgment motion in order to allow immediate
appellate review of the summary judgment in Hutchinson I.
Again, Tasco did not do so. They now ask this court to give
preference to the Hutchinsons’ statement found in a
“Pretrial Statement and Case History,” rather than the
court’s unambiguous journal entry. We decline to do so.

{¶ 32} This court recently considered facts similar
to those in the instant case in Cleveland Industrial
Square, supra. In that case, the parties disputed whether
the judgment entry dismissed the entire action without
prejudice, or dismissed only the remaining party. Id. at
_40. This court found that, because the journal entry
addressing the dismissal stated that the “case” was
dismissed without prejudice, “a good faith argument could
be made under existing law that the claims raised herein
are not barred by res judicata because the interlocutory
order dismissing the claim * * * was dissolved.” Id. at _43.
We have consistently followed this view that a voluntary
dismissal of the entire case pursuant to Civ.R. 41(A)
dissolves all prior interlocutory orders made by the trial
court in that action, including orders of summary judgment.
See, Marc Glassman, Inc. supra; Witt v. Lamson, Cuyahoga
App. No. 87349, 2006-Ohio-3963, Cleveland Indus. Square,
supra; Harper v. Metrohealth Med. Ctr, Cuyahoga App. No.
81048, 2002-Ohio-5861; Thompson, supra.

{¶ 33} Although we are bound by this court’s
precedent, we reiterate our agreement with the court in
Jackson, supra, and more recently, the dissent in
Fairchilds v. Miami Valley Hosp., Inc., 109 Ohio St.3d
1229, 2006-Ohio-3055, 849 N.E.2d 292, Stratton, J.
dissenting. Because Civ.R. 41, as written, is open to
potential abuse, “the Rules Advisory Committee of the
Supreme Court of Ohio may wish to reconsider the wisdom of
allowing voluntary dismissals, without prejudice, at this
late stage of a litigation.” Jackson, supra at ¶ 33.

{¶ 34} Therefore, because the Hutchinsons dismissed
the entire case pursuant to Civ.R. 41(A) and not just a
party, all interlocutory orders, including the court’s
orders granting summary judgment in favor of Tasco and
denying the motion to amend, are dissolved and have no res
judicata effect. Accordingly, the trial court erred in
dismissing the Hutchinsons’ complaint against Tasco based
on res judicata. Our decision renders moot the appeal of
the denial of the Hutchinsons’ Civ.R. 60(B) motion for
relief from judgment.

Spoliation

{¶ 35} Tasco raised as an alternate argument in its
motion to dismiss that the Hutchinsons’ spoliation claim
should be dismissed under Civ.R. 12(B)(6) for failure to
state a claim upon which relief can be granted. We find
that this argument is not ripe for our review because the
trial court did not consider Tasco’s alternate argument. It
is well established that an appellate court will not rule
on questions not considered by a trial court. Ochsmann v.
Great Am. Ins. Co., Franklin App. No. 02AP-1265,
2003-Ohio-4679, citing Mills-Jennings, Inc. v. Dept. of
Liquor Control (1982), 70 Ohio St.2d 95, 99, 435 N.E.2d 407.
Thus, we decline to address this argument for the first
time on appeal.

{¶ 36} Accordingly, the sole assignment of error is
sustained.

Judgment reversed and case remanded.

It is, therefore, ordered that appellants recover of
appellees the costs herein.

The court finds there were reasonable grounds for this
appeal.

It is ordered that a special mandate be sent to the common
pleas court 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.

FRANK D. CELEBREZZE, JR., P.J. and CHRISTINE T. McMONAGLE,
J. CONCUR