COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73021 LISA MONTGOMERY, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : BARBARA ZALUD, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 20, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 312426 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: James L. Deese Debra J. Dixon DIXON & OURS 700 West St. Clair Avenue Suite 216 Cleveland, Ohio 44113 For defendant-appellee: Margaret E. Amer Romney B. Cullers HERMANN, CAHN & SCHNEIDER 1301 East Ninth Street Suite 500 Cleveland, Ohio 44114 -2- NAHRA, P.J.: Appellant, Lisa Montgomery, appeals the granting of partial summary judgment in favor of appellee, Barbara Zalud, concerning appellant's strict liability claim. Appellant voluntarily dismissed, pursuant to Civ.R. 41(A)(1)(a), her remaining claim against appellee concerning common law negligence. Due to this dismissal, appellee claims that this order is not final and appealable. In early 1995, appellant leased the house in which she had been living and purchased another home. Unfortunately, the time from the commencement of the lease to the closing on her new home was two months and, as a result, Montgomery was in search of a temporary residence. Through a mutual friend, Montgomery contacted Ms. Zalud and arranged to live in her home. Prior to moving into Zalud's home, Montgomery met with Zalud in order to see the home and meet her cat and dog. At this time, appellee informed Montgomery that her dog, Sacci, was funny around people, and appellant should refrain from teasing her. However, appellee failed to mention that Sacci had bitten people in the past. It was then agreed that appellant, in exchange for a bedroom and the right to live in appellee's home, would not pay rent, but would give appellee approximately $900 to $950 to help with expenses. Montgomery then moved in with appellee, received a key and set up residence. At some point during her stay, appellant was bitten by Sacci causing permanent damage to her face. -3- Appellant filed a lawsuit alleging two separate theories of recovery: (1) a strict liability claim under the dog bite statute, R.C. 955.28, and (2) negligence. Appellee filed a motion for partial summary judgment on the statutory strict liability claim, which was denied. Appellee filed a motion for reconsideration claiming once again that appellant was a harborer of the dog, and was thus barred from recovery by statute. The court granted partial summary judgment in favor of appellee on the strict liability claim, which left the negligence claim pending. Thereafter, appellant filed, pursuant to Civ.R. 41(A), a notice of voluntary dismissal, without prejudice, of the negligence claim. Before considering the merits of appellant's appeal, we must first address the threshold issue of whether this case presents a final appealable order. Appellee claims that this case is not final and appealable under Civ.R. 54(B), maintaining that the appellant's voluntary dismissal of the negligence claim under Civ.R 41(A), applies to the entire action and, as a result, applies to all previous orders of the court, including the partial summary judgment. Although the argument presented by the appellant is favored in some jurisdictions, ours is not one of them. The issue of appealability concerning single party, multi- claim cases, where a remaining claim is voluntarily dismissed, has met with opposing interpretations among the Ohio appellate courts. However, this court in Eiland v. Coldwell Banker Hunter Realty (August 14, 1997), Cuyahoga County App. No. 71369, unreported, recently addressed the guidelines for Civ.R. 54(B) application to -4- determine what constitutes a final appealable order, and concluded that in cases where a party has received a partial judgment and voluntarily dismisses a claim in a single party suit, or a defendant in a multi-party suit, that partial judgment becomes a final judgment subject to appeal. Eiland, supra; see, also, Coffey v. Foamex (C.A.6, 1993), 2 F.3d 157, 159 ( Plaintiff voluntarily dismissed these claims without prejudice on July 16, 1992 rendering the [March 4, 1992 summary judgment] order final and appealable ); General Aviation, Inc. v. Cessna Aircraft Co. (C.A.6, 1990), 913 F.2d 1038, 1040 (General Aviation's voluntary dismissal of its sole remaining claim after the court granted partial summary judgment in favor of Cessna on all other claims made the district court's order final under Fed.R.Civ.P. 54(B)). The logic behind this interpretation is that although the partial judgment at the time just prior to the voluntary dismissal is inchoate or interlocutory, once the remaining claim(s) or party(s) are voluntarily dismissed, a final judgment is rendered. Id. To hold the opposite, as many appellate courts have, would frustrate the purpose of Civ.R. 41(A), and thwart otherwise worthy appeals. Id. Accordingly, we shall now address the merits of this appeal. Appellant's sole assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT GRANTED DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT. A grant of summary judgment is to be reviewed de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158; Palmieri v. Deaconess Hosp. (June 13, 1996), -5- Cuyahoga App. No. 70067, unreported. A court may grant a motion for summary judgment pursuant to Civ.R. 56 when it determines that: (1) No 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; see, also, Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 375 N.E.2d 46. Further, once the moving party has satisfied its burden, to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the non-moving party has no evidence to support the non-moving party's claims, the non- moving party must demonstrate, through the use of specific facts, there is a genuine issue for trial. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 254. The appellant argues that the trial court improperly awarded summary judgment to appellee when a genuine issue of fact existed as to whether Montgomery was a harborer of Sacci and thus barred from recovery under R.C. 955.28(B) which provides: The owner, keeper, or harborer of a dog is liable in damages for any injury, death or loss to a person or property that is caused by the dog, unless the injury, death or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, keeper or harborer, or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting or abusing the dog on the owner's, keeper's, or harborer's property. -6- It is well-settled that this section of the code imposes strict liability on the dog owner unless one of the exceptions enumerated in the statute is applicable. Dragonett v. Brandes (1939), 135 Ohio St. 223; see, also, Garrard v. McComas ((82), 5 Ohio App.3d 179. However, the courts have expanded the breath of these exceptions and have also barred from suit keepers and harborers. Khamis v. Everson (1993), 88 Ohio App.3d 220; see, also, Meyers v. Lynn (July 19, 1985) Lucas County App. No. L-85-009. Appellee argues that appellant was a harborer of the dog and thus barred from bringing an action. The court in Khamis defined a harborer as one who has possession and control of the premises where the dog lives, and silently acquiesces to the dog's presence and has an absolute duty to control the animal. Khamis, 88 Ohio App.3d at 226. Therefore, in order for the appellee to prevail on the motion for summary judgment, the appellee must prove conclusively that Montgomery, as a resident tenant, had control and possession over the appellee's house and had acquiesced to Sacci's presence in the house. The facts before this court prove that although Montgomery never formally paid rent to Zalud for the right to reside in her home, she did offer and relinquish $900 to $950 to Zalud, in order to help with expenses. She was given a key, which allowed her to come and go as she pleased, and also given full reign of the house. She did not object to the presence of Sacci in appellee's home, which may be construed as acquiescence. The precise question that -7- remains is whether the plaintiff was a harborer of the dog so as to bar recovery under the statute. As stated in Flint v. Holbrook (1992), 80 Ohio App.3d 21, 608 N.E.2d 809, a harborer is one who has possession and control of the premises where the dog lives, **** And further, as indicated in Khamis, supra, an owner, keeper or harborer is one who has an absolute duty to control the animal. Here, plaintiff temporarily resided in defendant's home. This fact is not sufficient to establish control of the premises. Also, contrary to establishing that plaintiff had an absolute duty to control the dog, the evidence clearly indicated she was instructed to stay away from the dog. For these reasons, summary judgment was improper. Reversed and remanded for further proceedings. -8- This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her costs herein. It is ordered that a special mandate be sent to said 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. JOSEPH J. NAHRA PRESIDING JUDGE SPELLACY, J., and ROCCO, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .