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Kelly v. Greene8/24/1995
PER CURIAM
JUDGMENT AFFIRMED.
This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel.
Defendant-appellant Gloria Greene appeals the dismissal by the Cuyahoga County Common Pleas Court of her counterclaim for interference with contractual relations, sexual harassment and intentional infliction of emotional distress.
This matter was previously before this court in Kelly v. Greene (Oct. 6, 1994), Cuyahoga App. No. 66359, unreported. In our disposition of Case No. 66359, we reversed in part because the trial court had dismissed all of appellant's counterclaim with prejudice, when, in fact, it should have dismissed some counterclaims without prejudice pursuant to Civ.R. 25(A).
The present appeal is before this court due to the actions taken by the parties subsequent to our disposition of Case No. 66359. The record reveals that those actions are as follows:
On November 10, 1994, appellant filed a motion for substitution of personal representative. After a brief in opposition was filed by appellee, the trial court entered the following order on November 22, 1994:
Deft's motion filed 11-10-94, for substitution of personal representative for deceased pltf. is stricken as this court is without jurisdiction to rule on said motion until matter is reinstated.
At that time, the Administrative Judge of the Cuyahoga County Court of Common Pleas had not yet re-assigned the case to a particular trial judge. Thereafter, on February 24, 1995, the Administrative Judge entered the following order:
* being affirmed in part, reversed in part and remanded to the Court of Common Pleas by order of the Court of Appeals: this matter is hereby returned to the docket of Judge Kenneth Callahan for further proceedings according to law.
Upon re-assignment of the case to its docket, the trial court entered the following order on March 3, 1995:
In accordance with the order of the Court of Appeals for Cuyahoga County, the counterclaims of interference with contractual relations, sexual harassment and intentional infliction of emotional distress only are dismissed without prejudice. All other claims are dismissed with prejudice. (Emphasis in original).
It is from this final order of March 3, 1995 that the appellant has timely appealed, raising the following assignments of error for our review:
I. THE COURT COMMITTED PREJUDICIAL ERROR IN DISMISSING THIS CASE WHEN NO REPRESENTATIVE OF THE ESTATE OF DANIEL KELLY HAD BEEN APPOINTED AND THERE WAS NO PARTY TO SUBSTITUTE.
II. THE COURT COMMITTED PREJUDICIAL ERROR IN DISMISSING THE COUNTERCLAIM OF THE DEFENDANT WITHOUT PRIOR NOTICE TO THE DEFENDANT.
I.
In her first assignment of error, appellant argues that the trial court, on remand, erred in striking her motion for substitution filed on November 10, 1994. We disagree with appellant and hold that this assignment of error is rendered moot per our previous determination in Case No. 66359, supra, when this court held at p. 4:
The motion for substitution may be made by any party to the action. There is no affirmative duty placed upon the attorney of the deceased to file a motion to substitute. Barrett v. Franklin (1986), 32 Ohio App.3d 51, 54. That burden is placed upon the one bringing the action. Id. A person must move for the substitution. United Home Fed. v. Rhonehouse (1991), 76 Ohio App.3d 115. The ninety-day period provided for in Civ.R. 25(A)(1) may be extend
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