COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70090 PATLEN, INC. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION PETER GARDNER, ADMIN., ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION AUGUST 15, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 281842 JUDGMENT APPEAL DISMISSED DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: GERALD L. STEINBERG, ESQ. RONALD A. RISPO, ESQ. Cohen & Steinberg GLENN D. SOUTHWORTH, ESQ. 1020 Standard Building Weston, Hurd, Fallon, 1370 Ontario Street Paisley & Howley Cleveland, Ohio 44113 2500 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2241 - 2 - JAMES M. PORTER, J., Plaintiff-appellant Patlen, Inc. appeals from the trial court's dismissal of its complaint for lack of personal jurisdiction over defendant-appellee Peter Gardner, a California resident, in plaintiff's action to recover a fee for locating a missing asset which defendant inherited from his deceased parents. For the reasons set forth below, we lack jurisdiction over the matter as the case does not present a final appealable order for our review. We therefore sua sponte dismiss and remand the matter to the trial court for further proceedings according to law. On December 13, 1994, Patlen filed its complaint in the Cuyahoga County Court of Common Pleas against Peter Gardner, Administrator of the Estate of Robert Gardner, Deceased, alleging breach of an agreement pursuant to which plaintiff would earn a fee for collecting the missing asset. Defendant, who lived in Sherman Oaks, California, filed a motion to dismiss pursuant to Civ.R. 12(B)(2) for lack of personal jurisdiction on March 30, 1995. Following extensive leaves to plead taken by plaintiff, on September 2, 1995, defendant moved to dismiss for lack of prosecution. On September 12, 1995, the court denied plaintiff's last request for an extension of time to respond. On October 23, 1995, without leave of court, plaintiff filed an amended complaint adding Peter Gardner individually as a new party defendant and alleging fraud in addition to its contract claim. Plaintiff also filed a motion to deny defendant's motion to - 3 - dismiss the original complaint. On November 15, 1995, defendant moved to strike the amended complaint and the opposition papers. On December 6, 1995, the defendant moved to dismiss the amended complaint for lack of personal jurisdiction. On December 7, 1995 the trial court granted the defendant's motion to dismiss the original complaint. The court also found as follows: Defendant Gardner's motion to dismiss for want of prosecution is moot; Defendant's motion to strike plaintiff's amended complaint and motion to strike plaintiff's motion to deny defendant's pre-answer motion to dismiss is moot; motion to deny defendant's pre answer motion to dismiss is moot. Final. The trial court failed to rule on defendant's second motion to dismiss concerning the amended complaint which was filed the day before the ruling. Thus, the amended complaint is still pending. The amended complaint was filed within rule. Pursuant to Civ.R. 15(A), "a party may amend its pleading once as a matter of course at any time before a responsive pleading is served ***." No leave of court is required. State ex rel. B & C Machine Co. v. Indus. Comm. (1992), 65 Ohio St.3d 538, 549. At the time the amended complaint was filed, no responsive pleading had been filed. The pending motion to dismiss was not a responsive pleading. State ex rel. B & C Machine Co, supra; Cashelmara Villas Ltd. Partnership v. DiBenedetto (1993), 87 Ohio App.3d 809, 815; Newton v. Jones (1984), 13 Ohio App.3d 449, 451. "[W]hen a motion to dismiss is filed before any responsive pleading, the absolute right to amend - 4 - is not abated." Cashelmara, supra at 815. See, also, Steiner v. Steiner (1993), 85 Ohio App.3d 513, 520. Therefore, given that the amended complaint was in rule and the defendant's motion to dismiss the amended complaint was not ruled upon, there is no final appealable order presented for review. The court's dismissal of the original complaint had no effect on the amended complaint as "an amended complaint substitutes for or replaces the original pleading." Steiner, supra at 19. Therefore, the amended complaint, which has not been disposed of, constitutes a separate matter still pending in the trial court. Accordingly, we lack jurisdiction to review this matter. We therefore, sua sponte dismiss the appeal and remand for further proceedings according to law. Appeal dismissed. - 5 - It is ordered that appellee recover of appellant his costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., and HARPER, J., CONCUR. JAMES M. PORTER 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 it will become the judgment and order of the court and time period for review will begin to run. .