COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61292 MARILYN McNEISH, ADMIN. : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CLEVELAND CLINIC FOUNDATION, : ET AL : : Defendant : PER CURIAM : [Appeal by S.M. Ashraf, M.D. : : Defendant-appellant] : DATE OF ANNOUNCEMENT : OF DECISION : OCTOBER 3, 1991 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 113,622 JUDGMENT : DISMISSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee, For defendant-appellant, Marilyn McNeish, Admin.: S.M. ASHRAF, M.D.: JULIAN COHEN, ESQ. BETH A.. SEBAUGH, ESQ. 1600 Standard Building 800 Leader Building Cleveland, Ohio 44113 Cleveland, Ohio 44114 For defendant, Cleveland For defendant, Clinic Foundation & Donald John O. Vlad, M.D.: Norris, M.D.: GEORGE F. GORE, ESQ. PETER W. MARMAROS, ESQ. 1100 Huntington Bldg. 113 St. Clair Building Cleveland, Ohio 44115 Cleveland, Ohio 44114 - 2 - PER CURIAM: Defendant/appellant, S.M. Ashraf, M.D., appeals from the trial court's order vacating an earlier dismissal order. For the reasons set forth below, we dismiss and remand. I. Plaintiff/appellee Marilyn McNeish commenced this action against appellant, the Cleveland Clinic, Donald G. Norris, M.D., and John O. Vlad, M.D. seeking damages for alleged medical malpractice. The Cleveland Clinic filed a counterclaim seeking payment for medical expenses. The matter was scheduled for trial on January 7, 1991. On December 3, 1990, appellee moved for a continuance of the trial date, or in the alternative for a conditional dismissal without prejudice. Numerous conditions were enumerated in appellee's motion, all of which appellee sought appellant and defendant, Cleveland Clinic's agreement with. No agreement of record was made. The Cleveland Clinic did not seek dismissal of its counterclaim. On December 12, 1990, the trial court issued the following order: "Conditional dismissal without prejudice is granted. FINAL. Remove from docket." This entry did not address the Cleveland Clinic's counterclaim, express the conditions upon which it was granted, or state that "there is no just reason for delay." - 3 - On January 16, 1991, the trial court vacated the previous dismissal in an order stating: "The conditional dismissal is hereby vacated. This case is to be reinstated to the active docket of Judge Greene. Trial set for 7-1-91 at 10:00 a.m. No continuances will be granted in this matter." II. For his assignment of error appellant contends that: "THE TRIAL COURT ERRED, AND EXCEEDED ITS JURISDICTION WHEN IT, SUA SPONTE, VACATED THE ORDER WHICH DISMISSED THE CASE WITHOUT PREJUDICE." We find that the trial court's dismissal order was not final and was subject to revision at any time. Civ. R. 54(B) provides that: "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, 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 such determination, any order or other form of decision, however designated, which adjudicates fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." (Emphasis added.) The order of the trial court was an adjudication as to fewer than all of the parties because a proper and validly asserted counterclaim cannot be extinguished by a plaintiffs dismissal of - 4 - his claim. Abbeyshore Co. v. Comm. (1974), 39 Ohio App. 2d 125. Further, the court order did not state that "there is no just reason for delay." An order vacating a judgment that was entered against less than all the parties and in which the trial court did not make an express determination that there was "no just reason for delay" is not a final appeal order. Jarrett v. Dayton Osteopathic Hospital, Inc. (1985), 20 Ohio St. 3d 77. For these reasons we remand this case to the trial court for proceedings consistent with this opinion. Case dismissed and remanded. - 5 - This cause is dismissed and remanded. It is ordered that appellee recover of appellant their 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 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. JOHN F. CORRIGAN, PRESIDING JUDGE LEO M. SPELLACY, JUDGE PATRICIA A. BLACKMON, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the Court and time period for review will begin to run. .