COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68605 MICHAEL WESTERHAUS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CAROL A. WEINTRAUT, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : AUGUST 31, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Cleveland Municipal : Case No. 94-CV-16289 JUDGMENT : DISMISSED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: MICHAEL WESTERHAUS, ESQ. CAROL A. WEINTRAUT, Pro Se 14255 Peppercreek Drive 1914 W. Wallings Road Strongsville, OH 44136 Broadview Heights, OH 44147 DOUGLAS J. WEINTRAUT, Pro Se 1914 W. Wallings Road Broadview Heights, OH 44147 - 2 - PATTON, C.J. The issue in this appeal is whether the Cleveland Municipal Court erred by dismissing plaintiff-attorney Michael Westerhaus's complaint for fees relating to legal services he performed for defendant-executrix Carol Weintraut. The municipal court determined principles of res judicata applied to bar the complaint because the probate court had previously ruled on the attorney's application for fees. Consequently, the court dismissed the action without prejudice pursuant to Civ.R. 12(B)(1). The sole assignment of error challenges the dismissal. We believe the tortuous path this case has travelled necessitates a thorough review of the facts and the filings. The record indicates the executrix retained the attorney to perform legal matters relating to the death of the executrix's mother. Although the testatrix had transferred all her assets to the executrix prior to her death, the attorney opened an estate as a tactical measure to avoid a challenge to the disposition of the transferred assets. That challenge did not materialize and a fee dispute ensued between the attorney and the executrix. The attorney filed a small claims action in the Parma Municipal Court seeking a $2,000 judgment on account. That sum represented amounts for services performed for both the estate and the executrix in her individual capacity. The executrix counterclaimed alleging the attorney engaged in legal malpractice. On June 20, 1994, the Parma Municipal Court dismissed the complaint - 3 - and counterclaim, finding the Cuyahoga County Probate Court had exclusive jurisdiction to fix the amount of attorney fees in probate proceedings. The Parma Municipal Court noted: "In the event that the Probate Court were to make determinations of awards of fees to the Plaintiff, and if that Court did not grant a judgment for the collection of the same, then this Court could consider, via small claims or a general docket action, the granting of a civil judgment against either the estate or its personal representative for the amount of those fees. However, a ruling of the Probate Court would be a precondition for any such lawsuit." On June 28, 1994, the executrix wrote the probate court to complain the attorney did not perform services sufficient to warrant payment of $2,000. The probate court interpreted the letter as a motion to determine fees relating to the estate. It referred the matter to a referee who issued a report and recommendations finding the attorney performed services for the estate reasonably valued at $800. Because the attorney believed the $800 figure fairly compensated him for the legal work he performed for the estate (but not for the executrix as an individual), he did not object to the recommendations. The attorney then filed this action in the Cleveland Municipal Court, seeking the sum of $2,128.18 on account for legal services rendered. That sum encompassed the $800 in fees authorized by the probate court, as well as other fees purportedly earned for work unrelated to the estate. In addition, the attorney alleged the executrix fraudulently induced him to continue to represent her with the promise she would pay him $1,000 for - 4 - attending a hearing. He alleged the executrix stopped payment on a personal check in that amount and, as a proximate result of the stop payment order, the attorney alleged he suffered damages of $1,010. Finally, he sought punitive damages in the amount of $7,861.82. The attorney properly brought this action in the municipal court for several reasons. First, the estate had no assets with which to satisfy his claim for fees; therefore, he sought reimbursement from the executrix in her individual capacity. Second, the probate court's order only determined the reasonableness of the fee charged to the estate for work done on behalf of the executrix. As a matter of practice, the probate court does not enforce findings relating to attorney fees since it merely determines the reasonableness of the fee under R.C. 2113.36. As the Parma Municipal Court noted, absent a money judgment from the probate court, the attorney could seek to recover his fee in any competent court. Third, the attorney did, in fact, allege he performed additional services which, because of the absence of a fee agreement, could be subject to a claim for quantum meruit. In such a case, he could submit the probate court entry as prima facie proof of the reasonableness of his claim for fees relative to the estate. Finally, the complaint alleged the executrix owed the attorney for services that were not performed on behalf of the estate or the executrix in her dealings with the estate. - 5 - The executrix filed a motion to dismiss for lack of subject matter jurisdiction, raising the prior dismissal by the Parma Municipal Court. Although the affirmative defense of res judicata may not be raised by a Civ.R. 12(B) motion to dismiss, see State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, the court granted the motion, finding the complaint attempted to relitigate the same issue of attorney fees brought before the probate court. It dismissed the complaint without prejudice. We lack jurisdiction to hear this appeal because the municipal court's dismissal without prejudice is not a final appealable order. R.C. 2502.02 defines a final order as: An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial *** A dismissal of an action without prejudice is otherwise than upon the merits and leaves the parties in the same position as if the plaintiff had not commenced the action. Central Mut. Ins. Co. v. Bradford-White Co. (1987), 35 Ohio App.3d 26; Conley v. Jenkins (1991), 77 Ohio App.3d 511, 517. Because the attorney may refile this action, the litigation has not been brought to an end on the merits. Id.; Mayfield Hts. v. Flanigan (Nov. 18, 1993), Cuyahoga App. No. 64131, unreported; Fant v. Bd. of Trustees Regional Trans. Auth. (Mar. 25, 1993), Cuyahoga App. No. 61932, unreported. - 6 - Accordingly, we lack a final appealable order and this action must be dismissed. Appeal dismissed. - 7 - It is ordered that appellant recover of appellees his 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 Cleveland Municipal 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. SPELLACY, J. JAMES D. SWEENEY, J., CONCUR. CHIEF JUSTICE JOHN T. PATTON 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, .