COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72825 JOSEPH G. STAFFORD : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION CYNTHIA M. HETMAN : : Defendant-appellee : : : DATE OF ANNOUNCEMENT : JUNE 4, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-258307 : JUDGMENT : DISMISSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: VINCENT A. STAFFORD, ESQ. RICHARD D. MESSERMAN, ESQ. JAMES E. POWELL, ESQ. 1940 Huntington Building 380 Lakeside Place 925 Euclid Avenue 323 Lakeside Avenue, West Cleveland, OH 44115 Cleveland, OH 44113 JOHN T. PATTON, J.: Plaintiff-attorney Joseph Stafford filed this defamation action against his former secretary, defendant Cynthia Hetman, -2- claiming she knowingly made false statements in an affidavit describing Stafford's alleged practice of intentionally refusing to serve opposing counsel with copies of motions and other correspondence. The court dismissed the action without prejudice for want of prosecution when Stafford failed to attend a pretrial. Stafford filed a Civ.R. 60(B) motion for relief from judgment asking the court to vacate the ruling because he failed to receive notice of the pretrial. The court denied the motion and this appeal followed. We dismiss the appeal for want of a final appealable order. Stafford argues the court abused its discretion by refusing to grant relief from the dismissal without prejudice because it did not first give notice of its intent to dismiss. Hetman maintains we lack a final, appealable order because a dismissal without prejudice does not determine the action, that being one of the prerequisites for finality under R.C. 2505.02, which requires an order that determines the action. A dismissal for failure to prosecute operates as an adjudication on the merits, unless the court's order otherwise specifies. See Civ.R. 41(B)(3); Thomas v. Freeman (1997), 79 Ohio St.3d 221, 224. Here, the court clearly stated the dismissal was without prejudice. A dismissal without prejudice relieves the court of all jurisdiction over the matter, and the action is treated as though it had never been commenced. See Zimmie v. Zimmie (1984), 11 Ohio St.3d 94, 95; DeVille Photography, Inc. v. Bowers(1959), 169 Ohio St. 267, 272; Conley v. Jenkins (1991), 77 -3- Ohio App.3d 511, 517. If the action had never been commenced, it follows that nothing could have been determined with the kind of finality required by R.C. 2505.02. Since the court dismissed the action without prejudice, the court should not have entertained a motion for relief from judgment under Civ.R. 60(B). Civ.R. 60(B) permits the court to relieve a party from a final judgment. The court's dismissal without prejudice was not a final judgment as required by Civ.R. 60(B). In Hensley v. Henry (1980), 61 Ohio St.2d 277, the syllabus states, unless plaintiff's Civ.R. 41(A)(1)(a) notice of dismissal operates as an adjudication upon the merits under Civ.R. 41(A)(1), it is not a final judgment, order or proceeding, within the meaning of Civ.R. 60(B). We recognize that unlike Hensley, the involuntary dismissal in this case occurred involuntarily by court order under Civ.R. 41(B)(1), not by voluntary action under Civ.R. 41(A)(1)(a), but that fact alone does not change our conclusion. If, as held in Zimmieand DeVille Photography, Inc., a dismissal without prejudice means the action should be treated as though it had never been commenced, it makes no difference whether the dismissal occurred voluntarily or involuntary the net effect is the same. The court's dismissal without prejudice would not have been a final appealable order because it did not determine the action. See Central Mut. Ins. Co. v. Bradford-White Co. (1987), 35 Ohio App.3d 26; Westerhaus v. Weintraut (Aug. 31, 1995), Cuyahoga App. No. 68605, unreported; Foree v. St. Luke's Hosp. (May 6, 1993), Cuyahoga App. No. 62419, unreported; Christian v. McFarland (June -4- 20, 1997), Montgomery App. No. 15984, unreported. Despite this seemingly logical analysis, some cases hold that dismissals, whether with or without prejudice, can only be entered after notice to the affected party. In order to reach that conclu- sion, the cases must implicitly find jurisdiction to hear matters raised from dismissals without prejudice. For example, in Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, the Supreme Court considered a dismissal without prejudice for failure to prosecute that had been challenged under a motion for relief from judgment. Although Hensley, decided only three years previously, would have appeared to foreclose any appeal from a motion for relief from judgment that refused to vacate the dismissal without prejudice, the Supreme Court nonetheless found the trial court erred by dismissing the matter without prejudice when it failed to give the plaintiff notice of its intent to dismiss. Svoboda, 6 Ohio St.3d at 350. The Supreme Court reached this conclusion without any discussion concerning the finality of the order before the trial court. Following Svoboda, other courts have reversed trial court dismissals without prejudice that were entered without notice to the plaintiff. See, e.g., Drescher v. Summers (1986), 30 Ohio App.3d 271; Rogers v. Presidential Life Ins. (1987), 36 Ohio App.3d 126; Woodson v. Highland Beefalo Farms, Inc. (1996), 116 Ohio App.3d 38. None of these cases addressed the finality problem occuring in light of a dismissal without prejudice. To further confuse matters, the Supreme Court subsequently cited the Hensley syllabus in Tower City Properties v. Cuyahoga Cty. Bd. of Revision -5- (1990), 49 Ohio St.3d 67, when making the distinction that a ismissal wit and was thus appealable, as opposed to a dismissal without prejudice. Tower City Properties, 49 Ohio St.3d at 69.1 Svoboda appears to sidestep jurisdictional limitations and permits appellate review of dismissals without prejudice. That kind of review may be desirable, since absent appellate review rial courts would have d h prejudice operated as an adjudication on t as they did so without prejudice. For example, the record in this case fails to contain any notation that a pretrial had been scheduled. Since Stafford had no notice of the pretrial, the court should not have dismissed the case for want of prosecution after Stafford failed to attend. The court's error did not prejudice Stafford. At the time the court dismissed Stafford's complaint without prejudice, Stafford had one year in which to refile his complaint under R.C. 2305.19, the Savings Statute. Any error by the court would have been rendered harmless under the circumstances once the case recommenced. Unfortunately, Stafford chose not to refile the action under the Savings Statute, so he must be accountable for 1 The Supreme Court recently discussed the notice requirements of Civ.R. 41(B)(1) in Quonset Hut v. Ford Motor Co. (1997), 80 Ohio St.3d 46. Although the opinion does not say for certain whether the trial court had dismissed the action with prejudice, the Supreme Court's statement of the case states, [a]mong the sanctions Ford sought was dismissal with prejudice pursuant to Civ.R. 37. Id. at 46. The statement of the case goes on to say that the trial court granted Ford's motion for dismissal. Based on these facts, we assume the dismissal had been ordered with prejudice; therefore, the facts of that case are inapplicable. -6- having caused his own prejudice. Stafford might argue that prejudice would accrue for no other reason than the court's erroneous dismissal might have deprived him of his own opportunity to exercise the Civ.R. 41(A)(1)(a) right to one voluntary dismissal without prejudice, but that argument would fail. We have held that the Savings Statute does not apply in situations where a second dismissal without prejudice was involuntary. In Iglodi v. Montz (Aug. 31, 1995), Cuyahoga App. No. 68621, unreported at 3, we stated, even where a claim is in- voluntarily dismissed, subsequent refilings are prohibited. * * * This prohibition is premised not on the nature of the dismissal (`otherwise than upon the merits'), but because the refiling of the action was after the expiration of the statute of limitations and the prior case was not filed `in due time' under R.C. 2305.19. (citations omitted). We find in accordance with Hensley the court had no authority to entertain a motion for relief from judgment after it dismissed Stafford's complaint without prejudice for want of prosecution under Civ.R. 41(B)(1). Because the dismissal without prejudice left the parties in the position as if the case had never commenced, the court had no authority to rule on the motion for relief from judgment. Since it ruled on a nullity, its order denying the motion was a nullity as well. Accordingly, we lack a final, appealable order pursuant to R.C. 2505.02 and dismiss the appeal. Appeal dismissed. -7- -8- It is ordered that appellee recover of appellant her 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 direct ing the Court of Common Pleas 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. JOSEPH J. NAHRA, P.J. MICHAEL J. CORRIGAN, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .