COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 74068 ACCELERATED DOCKET LEONARD L. STRATTON, ET AL. : : JOURNAL ENTRY Plaintiff-appellees : : AND vs. : : OPINION ODYSSEY HOMES, INC., ET AL. : : PER CURIAM Defendant-appellants: : : DATE OF ANNOUNCEMENT : SEPTEMBER 17, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-341548 : JUDGMENT : REVERSED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellees: J. NORMAN STARK, ESQ. 960 Leader Bldg. 526 Superior Avenue, N.W. Cleveland, OH 44114-1401 For defendant-appellants: DAVID J. PASZ, ESQ. 15910 Pearl Road Strongsville, OH 44136 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court -2- of common pleas and the briefs. Defendant-appellant Odyssey Homes, et al. ( defendant ), appeals the order of the trial court denying its motion to stay the instant litigation. Defendant complains the trial court erred in denying its motion to stay based on waiving its right to arbitration. On May 1, 1995, defendant and plaintiff-appellee Leonard Stratton ( Stratton ) entered into a residential purchase agreement where Stratton agreed to purchase a house from defendant. On September 21, 1996, Stratton filed a complaint against defendant. Approximately one year later, Stratton voluntarily dismissed his original complaint. Then on October 10, 1997, Stratton re-filed his complaint adding an additional count for violation of the Consumer Sales Practice Act and an additional defendant, Christopher Pastel, who is president of defendant. Subsequently, defendant filed its motion to stay litigation and compel arbitration. This motion was denied by the trial court because defendant waived its right to arbitration by failing to file a motion to stay in the prior case. Defendant timely filed its notice of appeal and now asserts a single assignment of error. Defendant's sole assignment of error states as follows: THE TRIAL COURT IN DENYING DEFENDANT'S MOTION TO STAY THE INSTANT LITIGATION AND COMPEL ARBITRATION WHERE PLAINTIFFS' SECOND COMPLAINT RAISED NEW ISSUES AND NAMED ADDITIONAL PARTIES. In the first case, Stratton voluntarily dismissed his complaint but not before substantial discovery took place. Thereinafter,Stratton re-filed his complaint adding an additional -3- claim and defendant. Defendant then filed its motion to stay to compel arbitration which was denied by the trial court based on defendant's failure to file a motion to stay in the first case. Thus, the issue on appeal is whether the failure to file a motion to stay to compel arbitration is rendered moot as a result of the filing of a voluntary motion to dismiss. In general, either party to a contract may waive arbitration. Mills v. Jaguar-Cleveland Motors, Inc., (1980), 69 Ohio App.2d 111. A plaintiff waives arbitration by filing a suit and the potential defendant waives arbitration by failing to move for a stay of the proceedings coupled with the filing of responsive pleadings. Id. Additionally, public policy favors dispute resolution by arbitration. Rock v. Merrill Lynch (1992), 79 Ohio App.3d 126, 128. 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 Ohio App.3d 511, 517. If the first case had never been commenced, it follows no subsequent determination could be based on the proceedings in the first case. Because Stratton voluntarily dismissed the first case, those proceedings cannot now be the basis of the denial of a motion to stay to compel arbitration because a voluntary dismissal treats the first case as though it had never been commenced. Accordingly, -4- defendant's first assignment of error is sustained and the trial court's order denying defendant's motion to stay is reversed. Judgment reversed. -5- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its 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 M. PORTER, PRESIDING JUDGE DIANE KARPINSKI, JUDGE JOHN T. PATTON, JUDGE 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 .