COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67413 LOUIS S. WEINSTOCK : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION YESHIVATH ADATH B'NAI ISRAEL : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-216120 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: SHELDON D. SCHECTER 113 St. Clair Avenue Suite 375 Cleveland, Ohio 44114 For Defendant-Appellee: LAWRENCE K. ENGLISH 1100 Citizens Building 850 Euclid Avenue Cleveland, Ohio 44114 JEREMY GILMAN JOSEPH N. GROSS Benesch, Friedlander, Coplan & Aronoff 2300 BP America Building 200 Public square Cleveland, Ohio 44114-2378 - 3 - O'DONNELL, J.: Appellant Louis S. Weinstock appeals from the May 12, 1994 entry of the trial court granting appellee Yeshivath Adath B'nai Israel's motion to dismiss for lack of subject matter jurisdiction or, in the alternative, motion for summary judgment. As we find this ruling erroneous, it is reversed and the cause remanded for further proceedings. The tortured procedural history of the case reveals efforts by the trial judge to correct an admittedly errant entry. Appellant originally filed case No. 197363 which was assigned to Judge Lillian Greene against Yeshivath Adath B'Nai Israel and Rabbi Bensoussan. Each moved to dismiss for failure to state a claim for relief. In response, Weinstock filed an amended complaint deleting the Rabbi and prayed for $250,000 in damages for breach of an employment contract, an accounting and other relief. The trial court nevertheless, on January 22, 1991, granted the motions of both original defendants and dismissed case No. 197363 with prejudice. It is this entry which the judge has tried to correct. Appellant appealed that dismissal, Court of Appeals No. 61345, and also filed a motion for relief from judgment, which the trial court granted on April 1, 1991, but without leave of the Court of Appeals to do so. The entry granting relief read in part: "Dismissal *** should *** be without prejudice. The court inadvertently marked the dismissal with prejudice box." - 4 - Appellant thereafter dismissed the pending appeal and refiled the action only against Yeshivath Adath B'nai Israel alleging arbitrary and malicious termination of employment and seeking compensatory and punitive damages. Judge Paul R. Matia to whom the refiled case had been assigned, referred it to the Early Neutral Evaluation Program of the Cleveland Bar Association on October 23, 1991, and upon his appointment to the United States District Court, Judge Robert E. Feighan entered a "Settled and Dismissed with prejudice" entry on January 30, 1992. Judge Clark Weaver succeeded Judge Matia, and on March 13, 1992, Judge Weaver entered this order: "Entry of 1-31-92 indicating case has been settled and dismissed was made in error. Case is hereby reinstated ***." Thereafter, on November 5, 1992, as appellant moved to enforce the Early Neutral Evaluation settlement, appellee obtained leave from Judge Weaver to amend its answer to the complaint to add the defense of lack of subject matter jurisdiction, and subsequently on December 2, 1992, filed a motion to dismiss for lack of subject matter jurisdiction or summary judgment. Meanwhile, in case No. 197363, the original filing, Judge Green, sua sponte entered this order on November 25, 1992: "11/25/92 nunc pro tunc 6/20/91 "The entry of 1/22/91 dismissing case w/prejudice is hereby corrected to show the dismissal as w/out prej." - 5 - For unexplained reasons, on December 11, 1992, Weinstock voluntarily dismissed w/o prejudice case No. 216120, the refiled case. Nonetheless, on January 27, 1993, Judge Judith Kilbane Koch, who had been elected to succeed Judge Weaver made this entry: "Entry of 12/11/92 was made in error and is vacated. Case is reinstated ***." Finally, on February 3, 1993, Judge Koch, in accordance with C.P. Sup. R. 4, transferred the refiled reinstated case to Judge Green, who, on May 12, 1994, entered this order: "Defendant's Motion to Dismiss for lack of subject matter jurisdiction, or in the alternative MFSJ, is granted. Final." Weinstock now appeals that order of dismissal and assigns one error: I. THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF- APPELLANT'S SUIT BECAUSE THE PLAINTIFF-APPELLANT IN FACT MADE A CORRECTION OF A COURT DOCKET, WHICH WAS A CLERICAL ERROR AND MISTAKE, SUBSEQUENT TO PLAINTIFF-- APPELLANT'S DISMISSAL OF APPEAL IN THE COURT OF APPEALS IN THE ORIGINAL ACTION. Appellant urges that the November 25, 1992 nunc pro tunc June 20, 1991 entry of Judge Greene in case No. 197363 was entered in accordance with Civ. R. 60(A) and corrected a clerical error. Appellee argues that the original dismissal of case No. 197363 with prejudice does not contain a clerical error and therefore cannot be corrected pursuant to Civ. R. 60(A). Thus, - 6 - the nunc pro tunc entry cannot validate case No. 216120 because it is barred by doctrines of res judicata and collateral estoppel. We, therefore, are called upon to resolve the status of this litigation and the import of the several trial court orders. We begin by noting that neither party argues the April 4, 1991 entry made without leave of this court has any effect whatsoever. The law is that during pendency of an appeal the trial court is divested of jurisdiction and cannot grant relief without first obtaining leave of the appellate court. See Majnaric v. Majnaric (1975), 46 Ohio App.2d 157; Vavrina v. Greczanik (1974), 40 Ohio App.2d 129; Civ. R. 60, and State ex rel. Henry v. Britt (1981), 67 Ohio St.2d 71. We next consider the import of the sua sponte November 25, 1992 nunc pro tunc journal entry which the judge entered to correct the original dismissal. Since the appeal (Court of Appeals No. 61345) had been dismissed, no leave of court was necessary to act on November 25, 1992. Evidence of the judge's intention in entering that order is contained in the nunc pro tunc entry itself: "The entry of January 22, 1991 dismissing case with prejudice is hereby corrected ***." (Emphasis added.) We find the judge had authority to enter this order under the provisions of Civ. R. 60(A) which state: "Clerical mistakes in judgments *** may be corrected by the court at any time on its own - 7 - initiative ***. During pendency of an appeal such mistakes may be so corrected *** while the appeal is pending *** with leave of the appellate court." (Emphasis added.) Appellee urges this entry cannot "validate" the filing of case No. 216120 because it was filed at a time when 197363 had been dismissed with prejudice. Hence, appellee urges this second case filing is barred by res judicata and collateral estoppel. This is the argument advanced to Judge Greene and upon which she dismissed the case on May 12, 1994 in an entry which does not clearly define whether it is based on lack of subject matter jurisdiction or summary judgment. The standard to apply for a dismissal for lack of subject matter jurisdiction is whether the plaintiff has alleged any cause of action cognizable by the forum. See Avco Financial Services Loan Inc. v. Hale (1987), 36 Ohio App.3d 65. Here, Weinstock has done so. And, in considering summary judgment, there must be no genuine issues of material fact in issue and the moving party must be entitled to judgment as a matter of law. See Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. There are factual issues in dispute in this case. The principle of res judicata is that, "a final judgment or decree rendered upon the merits *** is conclusive of rights, questions and facts in issue as to the parties *** and is a complete bar to any subsequent action on the same claim ***." Johnsons Island, Inc. v. Bd. of Trustees (1982), 69 Ohio St.2d - 8 - 41, 243, citing Norwood v. McDonald (1943), 142 Ohio St. 299, syllabus. But in the instant case, there never has been an adjudication upon the merits of this case because the initial January 22, 1991 dismissal which the judge tried to correct on two occasions granted a motion to dismiss for failure to state a claim. A Civ.R. 12(B)(6) dismissal for failure to state a claim is a dismissal otherwise than upon the merits and is without prejudice. See Gallagher v. Borden, Inc. (1992), 84 Ohio App.3d 185. We hold that the November 25, 1992 entry of Judge Greene purporting to correct the January 22, 1991 dismissal was made in accordance with Civ. R. 60(A) and relates back to the date of June 20, 1991 because of its nunc pro tunc language, and thereby corrected the nature of the dismissal of case No. 197363 to without prejudice status. Therefore, the refiling of case No. 216120 on August 14, 1991 is not barred by res judicata or collateral estoppel and the trial court's May 14, 1994 dismissal of this case with prejudice for lack of subject matter jurisdiction or summary judgment was error. Accordingly, judgment is reversed. Appellant's sole assignment of error has merit. This case is reversed and remanded for further proceedings. - 9 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) 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. JAMES D. SWEENEY, P.J., AND JAMES M. PORTER, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .