Bradley v. Talikka

2019 Ohio 4922

Opinion

[Cite as Bradley v. Talikka, 2019-Ohio-4922.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

ORLANDO L. BRADLEY, : MEMORANDUM OPINION

Plaintiff-Appellant, : CASE NO. 2019-A-0061 - vs - :

LEO L. TALIKKA, :

Defendant-Appellee. :

Civil Appeal from the Ashtabula Municipal Court, Case No. 2018 CVI 00749.

Judgment: Appeal dismissed.

Orlando L. Bradley, pro se, 528 West 40th Street, Ashtabula, OH 44004 (Plaintiff- Appellant).

Leo J. Talikka, pro se, Leo J. Talikka Co., L.P.A., P.O. Box 910, Painesville, OH 44077 (Defendant-Appellee).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Orlando L. Bradley, appeals from the judgment of the Ashtabula

Municipal Court sua sponte striking his amended complaint, filed against appellee, Leo

J. Talikka. We dismiss the appeal.

{¶2} Originally, appellant filed his small claims complaint against one “Leo L.

Talikka,” on August 20, 2018, Case No. 2018-CVI-00749. In his “Statement of Claim,”

appellant referred the defendant as “Leo J. Talikka.” The complaint was apparently

served on “Leo J. Talikka” who, on November 7, 2018, filed a motion to dismiss alleging the complaint was filed against “Leo L. Talikka,” someone he does not know.

Accordingly, dismissal was ostensibly sought for lack of jurisdiction over the person. On

the same date, the trial court granted the motion without designating its effect. On

appeal, this court concluded that because the dismissal was entered based upon the

lack of jurisdiction, it was not an adjudication on the merits. As such, the dismissal was

entered without prejudice, appellant could refile his complaint, and the judgment

dismissing the original complaint was not a final, appealable order. See generally

Bradley v. Talikka, 11th Dist. Ashtabula No. 2018-A-0098, 2019-Ohio-1948 (“Bradley I”).

This court, however, also opined it was constitutional error for the trial court to enter

judgment without allowing appellant the opportunity to be heard – an error which

essentially precluded appellant from amending his complaint to fix the apparent clerical

error. Id. at ¶6.

{¶3} After the release of the foregoing memorandum opinion, appellant filed an

amended complaint, under dismissed Case No. 2018-CVI-00749, against Leo J.

Talikka. On June 6, 2019, the trial court sua sponte struck the amended complaint

because it was filed under the dismissed case. Appellant again appeals assigning the

following as error.

{¶4} “The trial court abused its discretion in dismissing appellant’s amended

small claims complaint.”

{¶5} A dismissal without prejudice leaves the parties in the same position they

were prior to the action being filed; the action is treated as though it had never been

commenced. Arner v. Andover Bank, 11th Dist. Ashtabula No. 2008-A-0056, 2008-

Ohio-5857, ¶2. Because the dismissal had the effect of completely negating the original

2 action, appellant was required to re-file the action. Rather than doing so, appellant

attempted to correct the problems identified in Bradley I by filing an amended complaint

under the dismissed case number. In order to properly prosecute his case, however,

appellant must file a new complaint.

{¶6} As noted above, in Bradley I, although we concluded the order at issue

was not final, we emphasized that the trial court’s dismissal of the case without affording

appellant the chance to respond was a violation of constitutional due process. Id. Had

the court given appellant the opportunity to respond, he could have corrected the

captioning error, thereby avoiding unnecessary expense and resource waste, and

amending the complaint. Because, however, the matter was dismissed without

prejudice, appellant lost the opportunity to amend and now must re-file.

{¶7} In Bradley I, we pointed out that “‘the fundamental statutory purpose

of small claims court is to provide a “simple, inexpensive and just way for individuals to

resolve small financial disputes with a minimum of legal technicalities.”’” Id. at ¶3,

quoting McDonough v. Noble, 7th Dist. Mahoning No. 80 CA 96, 1981 WL 4728 (June

17, 1981), *2 quoting Toledo Small Claims Court, 6 Toledo L.Rev.397, 399 (1975).

Moreover, “‘[t]he small claims action does not contemplate the use of a formal complaint

prepared by a lawyer or an answer or elaborate discovery procedures. Indeed, the small

claims procedure encourages two citizens to argue their differences informally before a

referee.’” McDonough, supra, at *3 quoting West’s Ohio Practice, Volume 8, Page 140.

Appellant should have re-filed his complaint after Bradley I. Still, as discussed in that

opinion, such action could have been avoided had he been afforded basic due process.

Consequently, as of the issuance of this opinion, appellant has been unable to

3 overcome the basic procedural hurdle of filing a complaint in a “user-friendly” forum

designed for citizens, not lawyers, to resolve an ostensibly small dispute.

{¶8} Because the underlying judgment was a “failure other than on the merits,”

it is not final or appealable. Appellant, however, is entitled to file a new complaint. We

therefore dismiss the instant appeal.

TIMOTHY P. CANNON, J.,

MARY JANE TRAPP, J.,

concur.