COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74136 JEFFREY HALL : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION CLEVELAND STATE UNIVERSITY, : et al : : PER CURIAM Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 3, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 300,694 JUDGMENT : DISMISSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: PAUL MANCINO, JR. Attorney at Law 75 Public Square, #1016 Cleveland, Ohio 44113-2098 For defendant-appellee ALAN L. MELAMED Cleveland State Attorney at Law University : Three Commerce Park Square 23200 Chagrin Boulevard, #720 Cleveland, Ohio 44122 For defendant-appellee ROBERT J. MAREK Adm., Bureau of Assistant Attorney General Workers Compensation: 615 W. Superior Avenue, 12th Floor Cleveland, Ohio 44113 PER CURIAM: -2- 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 Cuyahoga County Court of Common Pleas, and the briefs. Plaintiff-appellant Jeffrey Hall appeals from the trial court order that dismissed his claim for workers' compensation against defendants-appellees Cleveland State University, the Administrator of the Ohio Bureau of Workers' Compensation, and the Industrial Commission of Ohio pursuant to Civ.R. 41(B)(1) for want of prosecution. Appellant contends the trial court's order was in error since the record fails to reflect inaction on appellant's part. Based upon a review of the record, however, this court concludes it lacks jurisdiction to consider appellant's contention. On December 27, 1995, appellant filed this action pursuant to R.C. 4123.512. Appellant sought a review of appellee Industrial Commission's order disallowing appellant's claim for workers' compensation.1 On April 29, 1996, appellees had filed answers to appellant's complaint and the trial court established a case management sche- dule. In its journal entry, the trial court ordered discovery to be completed by September 1, 1996 and set a trial date of December 16, 1996. 1Appellant alleged he had suffered an injury to his right shoulder blade as a result of a December 5, 1990 motor vehicle accident that had occurred while appellant was working as a security officer for appellee Cleveland State University. Appellant's earlier claim for a knee injury suffered in the same accident had previously been allowed by the Commission. -3- On December 18, 1996, the trial court issued a journal entry noting that although the case had been called for trial, the parties were not present. Trial was reset to 2/4/97 at 9 a.m. The following day, appellant filed a request for admissions in the trial court; he indicated the request had been mailed to appellees on December 18, 1996. That same day, appellee Cleveland State notified the trial court that appellant's deposition was scheduled for January 20, 1997 and, additionally, filed a motion requesting extension of the previously-ordered discovery dead- line. Although the trial court issued a journal entry granting Cleveland State's motion, the entry further reiterated the trial remained scheduled for February 4, 1997. On December 31, 1996, appellant filed both a request for leave to file a motion for summary judgment and the motion itself, which was supported by appellant's affidavit. On January 21, 1997, the trial court overruled appellant's motion for leave to file his motion for summary judgment, stating in its journal entry, Trial remains scheduled for 2/4/97. However, thereafter, the trial court's docket fails to reflect trial actually went forward. Instead, the next order the trial court issued was one overruling appellant's February 28, 1997 motion for further discovery. On January 8, 1998, the trial court issued a journal entry stating as follows: A review of the docket shows no activity on this case in more than six (6) months. -4- Pursuant to Superintendence Rule 40, the captioned case will be dismissed for want of prosecution on 2/9/98 unless good cause is shown in writing to the contrary. Although on February 6, 1998, appellant filed a response to the foregoing order, on February 11, 1998, the trial court issued the following journal entry: Pursuant to this Court's Order of 1/3/98 (Civil Journal Volume 2169--Page 407) and no good cause having been shown, the captioned case is hereby dismissed without prejudice for want of prosecution. FINAL. It is from the foregoing order that appellant filed a notice of appeal in this court. In his assignment of error, appellant essentially argues the trial court abused its discretion in dismissing his action pursuant to Civ.R. 41(B)(1).2 This court, however, may not address appellant's assignment of error. The trial court's order of February 11, 1998 specifically states appellant's action was dismissed without prejudice. Civ.R. 41(B)(3) states as follows: (3) Adjudication on the merits; exception. A dismissal under this subdivision and any dismissal not provided for in this rule, except as provided in subsection (4) of this subdivision, operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies. (Emphasis added.) 2Civ.R. 41(B)(1) states: (B) Involuntary dismissal; effect thereof. (1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim. -5- In a case in which Civ.R. 54(B) does not apply, an adju- dication that is not upon the merits, such as the one issued by the trial court in this case, is neither a judgment nor a final order for purposes of R.C. 2505.02. Civ.R. 54(A); R.C. 2505.03(A); Litton v. Joslin (1985), 22 Ohio App.3d 108; see, also, Thomas v. Freeman (1997), 79 Ohio St.3d 221; cf., McCann v. Lakewood (1994), 95 Oho App.3d 226; Hoffman v. Knaus (1952), 72 O.L.A. 389. Appellant's action was dismissed without prejudice; therefore, he may re-file it within the time period set forth in R.C. 2305.19, the savings statute. Lewis v. Connor (1985), 21 Ohio St.3d 1, cited with approval, Robinson v. B.O.C. Group, Inc., Gen. Motors Corp. (1998), 81 Ohio St.3d 361. Since this court lacks jurisdiction to consider appeals from non-final orders, appellant's appeal is dismissed. -6- This cause is dismissed. It is ordered that appellees recover of appellant their costs herein taxed. It is ordered that a special mandate issue out of this court directing the Cuyahoga County 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. __________________________________ PATRICIA A. BLACKMON, ADMIN. JUDGE __________________________________ KENNETH A. ROCCO, JUDGE __________________________________ MICHAEL J. CORRIGAN, 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 .