Showe Mgt. Corp. v. Wilmore

2012 Ohio 3212

• Court: Ohio Court of Appeals
• Decided: July 16, 2012
• Docket: 11 CA 123
• Status: Published

Opinion

[Cite as Showe Mgt. Corp. v. Wilmore, 2012-Ohio-3212.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

SHOWE MANAGEMENT CORP. JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellant Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 11 CA 123 STACEY WILMORE

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 11 CV 716

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: July 16, 2012

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

C. BERNARD BRUSH STACEY WILMORE 5530 Columbia Road, SW PRO SE Pataskala, Ohio 43062 652 West Main Street Newark, Ohio 43055 Licking County, Case No. 11 CA 123 2

Wise, J.

{¶1} Appellant Showe Management Corp. appeals the trial court’s November

10, 2011, decision dismissing its second cause of action for failure to prosecute.

Appellant also appeals the trial court’s failure to rule upon its Civ.R. 60(B) motion for

relief from judgment.

STATEMENT OF THE FACTS AND CASE

{¶2} On May 31, 2011, Appellant Showe Management Corp. filed its Complaint

for forcible entry and detainer against Appellee Stacey Wilmore.

{¶3} By Agreed Judgment Entry filed June 14, 2011, the trial court adopted an

Agreed Magistrate's Order and Decision on Appellant's first cause of action. The second

cause of action for damages was set for pre-trial on August 23, 2011, and then

scheduled for oral hearing on October 12, 2011.

{¶4} On October 12, 2011, the matter came before the Magistrate for hearing

on the second cause of action. Appellant's counsel appeared before the trial court on

said date for other scheduled cases, but did not go forward at that time with this case,

as he did not have the file or his witness with him.

{¶5} Appellant’s counsel later discovered that he had failed to properly place

the notice of hearing for that date in his calendar, and had instead placed it for hearing

on October 21, 2011. Upon learning that he had inadvertently transposed the numbers

for the date of the oral hearing on damages for October 21, 2011, instead of October

12, 2011, Appellant's counsel telephoned the court bailiff, informed him of his mistake

and requested that the hearing be re-scheduled for November 8, 2011, at 10:45 a.m. Licking County, Case No. 11 CA 123 3

{¶6} On November 8, 2011, Appellant appeared with counsel with the intention

of proceeding with the hearing before the Magistrate. Instead, Appellant was informed

that no hearing notices had been issued by the bailiff and the case had been sent to the

Judge for disposition.

{¶7} On November 9, 2011, Appellant filed a motion to reschedule the

damages hearing with memorandum in support.

{¶8} On November 10, 2011, the trial court filed its judgment entry dismissing

Appellant's action for failure to prosecute.

{¶9} On November 15, 2011, Appellant filed a Motion for Relief from Judgment.

{¶10} The trial court had not yet ruled upon said motion when Appellant filed the

instant appeal, setting forth the following Assignments of Error:

ASSIGNMENTS OF ERROR

{¶11} “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S SECOND

CAUSE OF ACTION AGAINST APPELLEE ON NOVEMBER 10, 2011.

{¶12} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

HOLD A HEARING AND/OR RULE ON APPELLANT’S CIVIL RULE 60(B) MOTION

FOR RELIEF.”

I., II.

{¶13} In the case sub judice, the trial court sua sponte dismissed Appellant’s

second cause of action without prejudice for failure to prosecute after Appellant failed to

appear at the oral hearing on damages. Licking County, Case No. 11 CA 123 4

{¶14} Civ.R. 41(B)(1) states that “[w]here a 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 a claim.”

{¶15} R.C. 2505.02(B) defines final orders as follows:

{¶16} “(B) An order is a final order that may be reviewed, affirmed, modified, or

reversed, with or without retrial, when it is one of the following:

{¶17} “An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

{¶18} “An order that affects a substantial right made in a special proceeding or

upon a summary application in an action after judgment;

{¶19} “An order that vacates or sets aside a judgment or grants a new trial;

{¶20} “An order that grants or denies a provisional remedy and to which both of

the following apply:

{¶21} “The order in effect determines the action with respect to the provisional

remedy and prevents a judgment in the action in favor of the appealing party with

respect to the provisional remedy.

{¶22} “The appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings, issues, claims, and

parties in the action.”

{¶23} Generally, where a cause is dismissed without prejudice and otherwise

than on the merits pursuant to Civ.R. 41(B)(1), the parties are left in the same position

as if the plaintiff had never brought the action. Central Mut. Ins. Co., v. Bradford-White

(1987), 35 Ohio App.3d 26, 519 N.E.2d 422. Therefore, a dismissal without prejudice is Licking County, Case No. 11 CA 123 5

not a final determination of the rights of the parties and does not constitute a final order

pursuant to R.C. 2505.02. Id. See also Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio

St.2d 303, 272 N.E.2d 127; Schindler v. Standard Oil Co. (1956), 165 Ohio St. 76, 133

N.E.2d 127; See also, McIntosh v. Slick, Stark App. Nos. 2001 CA00268 and 2001

CA00273, 2002-Ohio-3599.

{¶24} In Davis v. Paige , Stark App. 2007-CV-00248, 2008-Ohio-6415, this Court

found that a dismissal without prejudice for failure to prosecute was not a final

appealable order.

{¶25} In the instant matter, the trial court clearly stated that the action was

dismissed without prejudice in its Judgment Entry. Therefore, since appellant has the

ability to refile his claims within the time allowed by the applicable law, the trial court's

dismissal without prejudice is not a final appealable order. R.C. 2305.19.

{¶26} Based on the foregoing analysis, this Court lacks jurisdiction at this time to

consider this appeal.

{¶27} The appeal in this matter is hereby dismissed.

By: Wise, J. Hoffman, P. J., and Farmer, J., concur.

___________________________________

JUDGES JWW/d 0629 Licking County, Case No. 11 CA 123 6

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

SHOWE MANAGEMENT CORP. : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : STACEY WILMORE : : Defendant-Appellee : Case No. 11 CA 123

For the reasons stated in our accompanying Memorandum-Opinion, the appeal

from the judgment of the Court of Common Pleas of Licking County, Ohio, is dismissed.

Costs assessed to Appellant.

JUDGES