{¶ 58} I disagree. The majority concludes that appellants' voluntary dismissal of "the case" purporting to encompass all claims against MVH as well as all claims against Landis renders a prior interlocutory summary judgment ruling a nullity. This focuses on appellants' wording of the January 26, 2004 notice of voluntary dismissal. The majority reasons that since appellants dismissed "the case" as opposed to the remaining defendant, Landis, the interlocutory summary judgment "dissolved" rather than became final in accordance with Denham.
{¶ 59} I would find that appellants lacked authority to sidestep the trial court's decision on the merits on all claims brought against MVH. It is undisputed that the trial court rendered a "decision, order and entry sustaining defendant Miami Valley Hospital's motion for summary judgment (converted motion to dismiss)" on December 1, 2003. Civ.R. 54(B) certification was not included in the decision, since the case remained pending against the alleged tortfeasor, Landis. However, it is important to point out that the trial court clearly stated in the conclusion of its summary judgment order, "MVH is hereby dismissed from the case sub judice."
{¶ 60} In accordance with Civ.R. 56(D), the trial court thus directed "such further proceedings in the action as are just" against the remaining party, Landis.
{¶ 61} I conclude that the trial court's dismissal of MVH as a party defendant prevented appellants from filing a Civ.R. 41(A) voluntary notice of dismissal encompassing MVH. By simply naming MVH in their notice of dismissal and using the phrase "the case," appellants do not make it so. Appellants might just as readily have voluntarily dismissed the sun, the moon, and the stars, but that wording wouldn't make it so. Nor may appellants seek to voluntarily dismiss MVH, a party previously dismissed by court order. Appellants were relegated to an involuntary dismissal of MVH, subject to revision only by court order at any time before the entry of judgment.
{¶ 62} Therefore, the grant of summary judgment to MVH and its dismissal as a party defendant by the trial court became a final, appealable order when the *Page 377 appellants dismissed the remaining portion of "the case," to wit, Landis. Appellants having dismissed the sole remaining party defendant, Landis, this matter falls squarely within the Ohio Supreme Court holding in Denham. This conclusion not only comports with public policy but is consistent with Civ.R. 1(B), which requires that the Civil Rules "shall be construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditious administration of justice." Appellants' side step is indeed a misstep that does violate a sense of fair play. It is the trial judge controlling the adjudicatory process, not the appellants. MVH should not be required to defend the same claims a second time once they are dismissed by court order. Since the summary judgment decision became a final adjudication of the claims against MVH, the trial court properly concluded that appellants' voluntary dismissal of Landis converted the interlocutory summary judgment into a final, appealable order and therefore properly sustained MVH's request for a final judgment entry. Thus, I would overrule appellants' first and second assignments of error pertaining to 2003-CV-0573.
{¶ 63} Finally, because the trial court properly found its summary judgment decision in 2003-CV-0573 to be a final, appealable order, appellants' claims are barred by the doctrine of res judicata. Accordingly, I would overrule appellants' sole assignment of error pertaining to 2004-CV-01422 as well.