COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69015 BENACO TOOLING, INC., ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : : OPINION BANCORP HOLDINGS, INC., ET AL. : : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: MARCH 21, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-260200. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants: Patrick J. Perotti, Esq., Robert J. Hoffman, Esq., Dworken & Bernstein Co., L.P.A., 153 E. Erie Street, #304, Painesville, Ohio, 44077. For Defendants-appellees: Howard B. Hershman, Esq., Strong & Hershman, 3450 W. Central Avenue, #260, Toledo, Ohio, 43606. For Defendants-Appellees Ernie Ross and Everlease Marine: Daniel E. Wolfson, Esq., P.O. Box 275, Hudson, Ohio, 44236-0275. - 2 - SWEENEY, JAMES D., P.J.: Plaintiffs-appellants cross-appellees Benaco Tooling, Inc. and John Benadum, hereinafter Benaco, appeal the trial court's denial of its motion for summary judgment. The defendant-appellee cross- appellant Bancorp Holdings, Inc. filed its cross-appeal from the trial court's denial of its motion for summary judgment. The trial court dismissed this case for want of prosecution, and this timely appeal follows. On October 26, 1993, appellant filed its complaint against Bancorp Group, Inc., Everlease Marine, Inc. and Ernie Ross, requesting both monetary damages and declaratory relief for the breach of lease/purchase agreement for a 1987 Trojan 32F Classic 32 foot boat, a declaration of rights of the parties, and fraud. Subsequently, the court permitted Bancorp Holdings, Inc., a subsidiary of Bancorp Group, Inc., to intervene and file an answer and counterclaim. The counterclaim sets forth a cause of action for conversion and for deprivation of the use, enjoyment, and rental income of the boat. On May 2, 1994, the appellee filed its motion for summary judgment and on May 9, 1994, the appellant filed its motion for summary judgment. Each party filed both a brief in opposition and a reply brief. On October 19, 1994, the trial court denied both motions. On March 16, 1995, the trial court entered the following order: "The court having been in formed (sic) that this matter has - 3 - been settled, orders that a settlement entry be filed on or before 3-28-95 or this matter will be dismissed w/o prejudice, for want of prosecution." The order was journalized and notice issued. On April 14, 1994, the docket reflects the following entry: "Pursuant to this court's order of 2-28-95 (entered in computer on 3-16-95) the above case is ordered DWOP for want of prosecution at plaintiffs (sic) cost. Final." The order was journalized and notice was issued. This appeal was timely filed on May 15, 1995, and the cross appeal was filed on June 5, 1995. Once on appeal, this court established a briefing schedule and granted appellant's motion for oral argument. On November 29, 1995, sua sponte, both the appeal and the cross-appeal were dismissed for lack of jurisdiction. This court's entry stated "The order of the trial court dismissing its case without prejudice is not a final appealable order." Upon a motion for reconsideration, this entry was vacated, and the appeal set for hearing. Although this court granted the motion for reconsideration, a determination of jurisdiction must still be made by the panel reviewing the appeal. Towards this end, it must first be noted that an appellate court's review is limited by Section 3(B)(2), Article IV of the Ohio Constitution, which states in pertinent part that an appellate court shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals. - 4 - The legislature has defined "final appealable order" in R.C. 2505.02 as follows: 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 is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. The Supreme Court, in Bell v. Mt. Sinai Hosp. (1993), 67 Ohio St.3d 60, 63, found that, for purposes of R.C. 2505.02, "An order which affects a substantial right has been perceived to be one which, if not immediately appealable, would foreclose appropriate relief in the future." This court has previously held that a dismissal without prejudice is not a final determination of the rights of the parties and does not constitute a judgment or final order when refiling or amending of the complaint is possible. In the Matter of Mary Beth v. Howard, et al. (December 22, 1994), Cuyahoga App. No. 66748, unreported. See also Westerhaus v. Weintraut (August 31, 1995), Cuyahoga App. No. 68605, unreported, where this court held that a dismissal of an action without prejudice is otherwise than on the merits and leaves the parties in the same position as if the plaintiff had not commenced the action. Where an action may be refiled, the litigation has not been brought to an end on the merits. Id. - 5 - While facially it appears that Balson v. Dodds (1980), 62 Ohio St.2d 287, is on point with the case sub judice, it is nonetheless clear that the Supreme Court held at syllabus 1 that a trial court's denial of a motion for summary judgment is reviewable on appeal by the movant from a subsequent adverse final judgment. Balson is distinguishable because, as set forth above, a dismissal without prejudice does not constitute a final judgment. Upon a close examination of the entire record of the lower court, including the motions, the docket, and the trial court's orders, this court is forced to conclude that no justiciable controversy remains to be reviewed. The trial court dismissed the case without prejudice, a decision to which neither party has objected. Since the case may be refiled, the dismissal was not on the merits of the case, and neither a substantial right nor future relief has been foreclosed. Both the appeal and the cross-appeal must be dismissed. This appeal is accordingly dismissed. - 6 - It is ordered that appellee and appellant each pay one-half of the 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 Common Pleas 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. Exceptions. JAMES M. PORTER, J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .