COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68342 JOHN SPILDENER, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION ELIZABETH J. EDGEHOUSE, ET AL.: : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 7, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-243730 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Defendants-Appellees Cheryl and Barbara Sladick and For Plaintiffs-Appellants: State Farm Mutual Ins. Co.: JOSEPH L. COTICCHIA, ESQ. JOSEPH H. WANTZ, ESQ. 1640 Standard Building MEYERS, HENTEMANN, SCHNEIDER Cleveland, Ohio 44113 & REA CO., L.P.A. 2121 The Superior Building For Defendant-Appellee Cleveland, Ohio 44114 Commercial Union Ins. Cos.: CHRISTOPHER M. BECHHOLD, ESQ. DONALD P. SCREEN, ESQ. THOMPSON, HINE AND FLORY 1100 National City Bank Building Cleveland, Ohio 44114 - 2 - DYKE, J.: Appellants filed this action against several defendants and their respective insurance companies as a result of Nicole Spildener's injury in an auto accident. Appellants appeal from the trial court's decisions to grant summary judgment motions made by appellees Cheryl and Barbara Sladick and State Farm Mutual Insurance Company ("State Farm"). Appellant also appeals from the court's ruling which granted appellee Commercial Union Insurance Company's ("Commercial Union's") motion for summary judgment. Appellants voluntarily dismissed the final defendant, Elizabeth Edgehouse, on November 23, 1994. The trial court issued notice of the dismissal in a journal entry dated December 2, 1994, rendering the court's orders final and appealable. On the last day of classes at Berea High School, Elizabeth Edgehouse, accompanied by Nicole Spildener, asked her neighbor, Cheryl Sladick, if she could put items from her locker into Cheryl's car. Elizabeth asked if Cheryl could then take the items home with her, after which Elizabeth would retrieve them. Cheryl agreed to this, handing Elizabeth the keys to her car which was parked in the high school's parking lot. Elizabeth, still accompanied by Nicole, put her things in the car and sat in the driver's seat. Nicole was at this point leaning into the back seat from the front passenger area, placing something onto the back seat. Elizabeth, who had never before driven a car, started the engine and put the car in reverse. After running into - 3 - a grassy area, Elizabeth shifted the car into drive and, mistaking the accelerator for the brake, drove seventy-five feet into a basketball pole. Nicole suffered lacerations to her face and forehead, requiring numerous stitches, from contact with the windshield. Elizabeth suffered some minor bruising. Appellants filed a timely notice of appeal from the trial court's rulings on the appellees' summary judgment motions on December 30, 1994. Appellants allege three assignments of error. I THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE CHERYL SLADICK. Appellants argue that a question of material fact existed as to whether Cheryl impliedly authorized Elizabeth to drive her car by entrusting her with the keys, without specifying whether or not the car could be driven. Therefore, according to appellants, the motion for summary judgment was improperly granted as to Cheryl. We are not persuaded by appellants' argument. Under Civ.R. 56, summary judgment is proper when "(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. Trial courts should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St. 3d 356, 604 N.E.2d 138. Nevertheless, summary judgment is appropriate where a plaintiff fails to produce evidence supporting the essentials of its claim. - 4 - Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 346. Appellants failed to present evidence to support their claim of negligent entrustment. No evidence exists on the record that Cheryl in any way implied that Elizabeth had her permission to drive the car. The evidence from deposition testimony of both Elizabeth and Nicole supports the contrary conclusion that the understanding of all three young women was that Elizabeth had Cheryl's consent to place her school supplies in Cheryl's car. Elizabeth admitted that she knew she would not have obtained Cheryl's permission to drive the car if she had asked for it. Never in the past had Cheryl allowed Elizabeth to drive the car, nor had Elizabeth ever indicated any desire to drive the car. Generally, an owner of a vehicle may be held liable in negligence for injuries to a third person resulting from the operation of the vehicle by an inexperienced or incompetent driver if the owner knowingly entrusts its operation to such a driver. Gulla v. Straus (1950), 154 Ohio St. 193 ... Manning v. Wilmot (1985), 29 Ohio App.3d 94, 95. No genuine issue of fact exists in the record as to the understanding of the parties regarding the scope of Cheryl's consent when giving her keys to Elizabeth. Cheryl did not knowingly entrust the operation of her car to Elizabeth. As a matter of law, appellee Cheryl Sladick is entitled to summary judgment. - 5 - Appellants' first assignment of error is overruled. II THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. Appellants assert that the trial court erroneously found that Elizabeth's use of the car was relevant in determining whether or not the medical payments or uninsured motorists provisions of the Sladicks' policy would provide coverage for Nicole's injuries. Appellants argue that Elizabeth's use of the car is irrelevant. They propose that Nicole's use of the car was within the scope of Cheryl's permission, therefore she is entitled to coverage by the State Farm policy. Appellants' argument is not well taken. Under the Sladicks' policy, which covered the car involved, an "insured" may be covered for damages occurring as a result of the operation of the car. Under appellants' argument, Nicole qualifies as an "insured" under both the medical payments and uninsured motorists provisions because she was using the car within the scope of Cheryl's permission. We are not persuaded by this interpretation of the facts. The trial court found that Elizabeth's use of the car exceeded the scope of permission given by Cheryl in its ruling on Commercial Union's motion for summary judgment. The court found that there was "no evidence that Elizabeth Edgehouse had consent to operate the vehicle or that she had a reasonable belief as to such consent or entitlement. On the evidence before the court no reasonable - 6 - trier of fact could find otherwise." (Journal Entry filed July 13, 1994). The evidence does not support appellants' theory that Nicole had any consent from Cheryl to use the car for any purpose. Cheryl gave permission to Elizabeth to enter the car for the purpose of placing her belongings therein. It is Elizabeth's use of the car which is the proper focus of the court's legal analysis. Not only was the consent conferred upon her, but the injuries sustained by Nicole stemmed from Elizabeth's use of the vehicle, not from Nicole's use. The language of the policy is directed at the use to which the car is being put when injuries occur. Under the medical payments provision the policy defines an "insured" as "any other person while using such a car if its use is within the scope of consent of you or your spouse." Under the uninsured motorists provision, an "insured" is defined as "Any other person while occupying... your car... Such vehicle has to be used within the scope of the consent of you or your spouse." These definitions both focus upon the use of the vehicle itself, not upon the injured individual's use of it. These definitions support the trial court's analysis of Elizabeth's use of the vehicle because the actual use of the vehicle which caused the injury was carried out by Elizabeth. We do not find that the trial court erroneously ignored the use Nicole made of the vehicle in rendering summary judgment in favor of State Farm. Nicole's use of the car was neither within - 7 - the scope of consent, nor a cause of the injury. The trial court properly granted appellee State Farm's summary judgment motion. Appellants' second assignment of error is overruled. III THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE COMMERCIAL UNION INSURANCE COMPANY. Appellants argue that an issue of material fact existed as to whether or not Elizabeth had a reasonable belief that she was entitled to drive Cheryl's car. If Elizabeth did have such a belief, she would be entitled to liability insurance coverage through her parents' policy with Commercial Union, for bodily injury damages for which she became legally responsible. Appellants' argument is not well taken. The trial court specifically found that no reasonable trier of fact could have found that Elizabeth had a reasonable belief that she was entitled to drive Cheryl's car. We agree. After a thorough review of the record, all evidence points to the opposite conclusion. Elizabeth, herself, admits that she would not have obtained permission from Cheryl to drive her car even if Elizabeth had asked. Nicole's deposition testimony clearly relates the understanding that Elizabeth was to place her belongings in the car and that was the extent of Cheryl's consent regarding the use of her car. When no evidence exists to support appellants' claim, there can not be a genuine issue of fact remaining. Under Civ.R. 56, appellee Commercial Union was entitled to summary judgment as a matter of law. Without evidence of a reasonable belief on the part - 8 - of Elizabeth that she was entitled to drive the car, Commercial Union's policy provisions would not provide coverage for Nicole's injury. Appellant's third assignment of error is overruled. The trial court's rulings, granting summary judgment to Cheryl Sladick, State Farm and Commercial Union are affirmed. - 9 - It is ordered that appellees recover of appellants 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. NAHRA, J., CONCURS PATTON, C.J., DISSENTS (SEE ATTACHED DISSENTING OPINION) ANN DYKE 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 10 - COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68342 JOHN SPILDENER, ET AL. : : DISSENTING Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION ELIZABETH J. EDGEHOUSE, ET AL.: : Defendant-appellees : : DATE SEPTEMBER 7, 1995 PATTON, C.J., DISSENTING: I respectfully dissent because I believe we lack jurisdiction to hear this appeal under App.R. 4(A). The record indicates appellant did not file her notice of appeal within thirty days of dismissing Edgehouse. App.R. 4(A) requires a party to file a notice of appeal within thirty days of the judgment appealed from. The time limitation is jurisdictional. Kaplysh v. Takieddine (1988), 35 Ohio St.3d 170; Dayton's Women's Health Center v. Enix (1990), 52 Ohio St.3d 67. The trial court granted the motions for summary judgment against all defendants but Edgehouse. It appears Edgehouse was uncollectible so, pursuant to Civ.R. 41(A)(1), plaintiff voluntarily dismissed her without prejudice on November 23, 1994. On December 2, 1994, the trial court entered an order stating, - 11 - "[c]ase is DWOP; Final." Plaintiff filed her notice of appeal on December 30, 1994. The time in which to file an appeal began to run on November 23, 1994, when plaintiff dismissed her sole remaining claim. The trial court's subsequent order memorializing the dismissal was superfluous because a voluntary dismissal is self-executing and requires no more action by the court. Crawford v. LTV Steel Company (Dec. 15, 1994), Cuyahoga App. No. 67461, unreported. Indeed, the voluntary dismissal deprived the court of jurisdiction to make any further ruling on the case since a plaintiff has an absolute right to dismiss an action. See Civ.R. 41(A)(1)(a); State ex rel. Hunt v. Thompson (1992), 63 Ohio St.3d 182; Holly v. Osleisek (1988), 40 Ohio App.3d 90; Harper v. Frantz (1989), 61 Ohio App.3d 341. This case in on all fours with Cronin v. Smith (1994), 92 Ohio App.3d 606. In Cronin, several defendants received summary judgment. The plaintiff dismissed the remaining defendant. The trial court entered an order styled "Entry of Dismissal Without Prejudice," which stated, "upon notice of the plaintiffs the defendants in the above-captioned case *** are dismissed." The plaintiffs timely appealed from the trial court's notice, but not from the actual dismissal. The court of appeals held the trial court lost any jurisdiction to memorialize the order, therefore it was a nullity. The court ruled the time in which to appeal began to run from the date of the voluntary dismissal. Id. at 607-608. - 12 - See, also, Sutton v. M.A.N. (Sept. 8, 1993), Hamilton App. No. C- 920553, unreported (plaintiff's voluntary dismissal before trial court's journalization of interlocutory summary judgment effective despite trial court's nunc pro tunc order attempting to relate summary judgment back to date of interlocutory order). Our decision in Lee v. Joseph Horne Co., Inc. (1995), 99 Ohio App.3d 319 is not to the contrary. In Lee, a wife and husband filed suit against a department store after the wife, who worked for a cosmetics company, was struck in the face by a cosmetics counter display case door. The trial court granted a default judgment in the wife's favor, but made no disposition of the husband's claims. Thereafter, the trial court vacated the default judgment pursuant to Civ.R. 60(B). The wife attempted to appeal from the court's order of relief from judgment, but that order lacked finality because the default judgment did not address the claim of the remaining spouse. See Civ.R. 54(B). The husband then voluntarily dismissed his claim. The trial court entered an order memorializing the dismissal, and the wife filed a second notice of appeal. The following language in Lee may give the false impression the time to appeal began to run after the trial court entered its dismissal entry: "Nevertheless, on June 27, 1994 Regis volun- tarily dismissed his claims and the trial court on June 30, 1994 so entered judgment. On June 30, 1994, therefore, the default judgment and the order vacating the default judgment became final appealable orders. Since appellants - 13 - filed a timely notice of appeal from the dismissal entry, the appeal sub judice is properly before this appellate court." Id. at 323. This statement should not be considered authority for the proposition that the time in which to file a notice of appeal from a voluntary dismissal begins to run only when the trial court memorializes that dismissal. First, as the preceding law demonstrates, the trial court has no authority to take any action on a case once a plaintiff has dismissed any remaining claims. Second, the facts in Lee clearly show the appellants filed their second notice of appeal on July 27, 1994, thirty days from their voluntary dismissal on June 27, 1994. See id., at 322. Therefore, the Lees timely appealed from their notice of dismissal and any indication otherwise is dicta resulting from an unfortunate choice of words on our part. Accordingly, I would follow Cronin, supra, and find plaintiffs failed to perfect a timely appeal from their own voluntary .