COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 82137 ALBERT THROWER : ACCELERATED DOCKET : Plaintiff-appellant : JOURNAL ENTRY : AND -vs- : OPINION : PATRICIA ROBINSON, ET AL.: : Defendants-appellees : DATE OF ANNOUNCEMENT OF DECISION: MARCH 27, 2003 CHARACTER OF PROCEEDING: Civil appeal from the Cleveland Municipal Court Case No. CV-456052 JUDGMENT: Dismissed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ALBERT THROWER, PRO SE P.O. Box 15102 Cleveland, Ohio 44115 For Defendants-Appellees: PATRICIA ROBINSON, PRO SE 9520 Detroit Ave., #304 Cleveland, Ohio 44102 MARY HALL, PRO SE 10303 Westchester Street Cleveland, Ohio 44108 BOB ROBINSON, PRO SE 10303 Westchester Street Cleveland, Ohio 44108 (Continued) -2- (Continued) For Defendants-Appellees: ROBERT ROBINSON, PRO SE C/O 9520 Detroit Ave., #304 Cleveland, Ohio 44102 ROZ ROBINSON, PRO SE 1899 West 75th Street Cleveland, Ohio 44102 ROCHELL WILIAMS, PRO SE 2320 Michigan Ave., Apt. 14 Ashtabula, Ohio 44004 -3- ANN DYKE, A.J.: Plaintiff-appellant Albert Thrower ("appellant") appeals from the judgment of the trial court which dismissed without prejudice his action against Defendant-appellee Patricia Robinson, et al. ("appellee"). For the reasons set forth below, we affirm the judgment of the trial court. On December 7, 2001, appellant filed a pro se complaint against appellee, Roz Robinson, Mary Hall, Robert Robinson, Bob Robinson, Rochelle Williams and 10 John Does alleging theft by deception, fraud and breach of contract. Appellant alleged that he loaned the named parties $4,000 to be returned on demand. Appellant further alleged that the parties failed to repay the loan. Appellant sought the return of the funds and punitive damages in the amount of ten million dollars. A review of the record reveals that on June 26, 2002, appellant filed(a) motion for a default judgment against four of the defendants, which the trial court denied on August 20, 2002. In its journal entry, the trial court stated: "Plaintiff's motion for default judgment is denied. Plaintiff has thirty days, until 9/16/02 to amend the complaint. Plaintiff may refile motion for default judgment after defendants have been served with the amended complaint. Plaintiff's supplemental motion for default judgment is denied for the reasons cited above." On November 5, 2002, the trial court dismissed appellant's -4- action without prejudice by journal entry: "On 8-20-02 plaintiff was informed that he had thirty days, until 9/16/02 to amend the complaint. Plaintiff has failed to do so, case dismissed without prejudice for failure to comply with this court's order." It is from this ruling that appellant now appeals, asserting three assignments of error for our review. "I. The trial court erred to the prejudice of the plaintiff- appellant in not entering the default judgment for the plaintiff- appellant, the plaintiff-appellant obtaining service over the defendants and they not responding (sic)." "II. The plaintiff-appellant stated a claim as a matter of law and the trial court erred to the prejudice of the appellant by dismissing said action." "III. Trial court erred to the prejudice of the plaintiff- appellant in ordering the severe sanction of dismissal for not complying [with] the trial court's alleged order." Appellant alleges that after a hearing was held on the default motion, the trial court informed him that a default judgment would be entered, but failed to do so. We note that it is axiomatic that the trial court speaks through its journal entry. We lack jurisdiction to hear this appeal because the court's dismissal without prejudice is not a final appealable order. R.C. 2502.02 defines a final order as: -5- "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." Further, Civ.R. 41 states, in relevant part: "(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. "(3) Adjudication on the merits; exception. A dismissal under division (B) and any dismissal not provided for in this rule***, operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies." In its journal entry, the court dismissed the action without prejudice. A dismissal without prejudice is one otherwise than on the merits. Chadwick v. Barba Lou, Inc. (1982), 69 Ohio St.2d 222. A dismissal that is otherwise than on the merits leaves the parties in the same position as if the plaintiff had not commenced the action. Central Mut. Ins. Co. v. Bradford-White Co. (1987), 35 Ohio App.3d 26; Conley v. Jenkins (1991), 77 Ohio App.3d 511; Westerhaus v. Weintraut (Aug. 31, 1995), Cuyahoga App.3d 26. The litigation has not been brought to an end on the merits, since -6- appellant may refile this action. Westerhaus, supra citing Mayfield Hts. v. Flanigan (Nov. 18, 1993), Cuyahoga App. No. 64131. Accordingly, we lack a final appealable order and this action is dismissed. -7- It is ordered that appellee recover of appellants their costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANNE L. KILBANE, P.J., AND DIANE KARPINSKI, J., CONCUR. ANN DYKE 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). .