Kenesky dba Superior Quality Machine v. M. Weingold & Co. ( 2014 )

[Cite as Kenesky dba Superior Quality Machine v. M. Weingold & Co., 2014-Ohio-4987.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
JOSEPH KENESKY dba SUPERIOR : MEMORANDUM OPINION
QUALITY MACHINE,
:
Plaintiff-Appellant, CASE NO. 2014-P-0039
:
- vs -
:
M. WEINGOLD & CO., et al.,
:
Defendants-Appellees.
Civil Appeal from the Court of Common Pleas, Case No. 2013 CV 0764.
Judgment: Appeal dismissed.
Joseph A. Pfundstein, 21403 Chagrin Boulevard, Suite 295, Solon, OH 44139 (For
Plaintiff-Appellant).
David L. Meyerson, Seaman Garson LLC, Rockefeller Building, 614 West Superior
Avenue, Suite 1400, Cleveland, OH 44113 (For Defendants-Appellees).
CYNTHIA WESTCOTT RICE, J.
{¶1} A review of the docket in this matter reveals that on April 8, 2011, Superior
Quality Machine, filed an action, case number 2011 CV 00435, in the Portage County
Court of Common Pleas against M. Weingold & Co. On August 3, 2012, Superior
Quality Machine filed a notice of voluntary dismissal without prejudice pursuant to Civ.R.
41(A)(1)(a) with the trial court.
{¶2} On August 2, 2013, Superior Quality Machine refiled an action in the
Portage County Court of Common Pleas against M. Weingold & Co., and added Loren
Margolis and Jack Weingold as defendants, which was assigned case number 2013 CV
00764. On September 10, 2013, defendants-appellees, M. Weingold & Co., Loren
Margolis and Jack Weingold, filed a motion to dismiss asserting that since Superior
Quality Machine is a fictitious entity that is not registered to do business in the state of
Ohio, it lacks standing to bring a claim. On October 24, 2013, Joseph Kenesky dba
Superior Quality Machine filed an amended complaint. Thereafter, the trial court denied
the appellees’ motion to dismiss.
{¶3} On April 25, 2014, appellees filed a motion to dismiss the complaint
pursuant to Civ.R. 12(B)(6), alleging that the October 24 amended complaint filed by
Superior Quality Machine changed the plaintiff’s identity to Joseph Kenesky dba
Superior Quality Machine, which, appellees claimed was a new party to the complaint
and, therefore, constituted a new complaint and original filing. Thus, appellees stated
that appellant has failed to obtain proper service of the complaint and summons. On
June 5, 2014, the trial court dismissed the amended complaint without prejudice. It is
from that entry that appellant filed the instant appeal.
{¶4} On July 11, 2014, appellees filed a motion to dismiss this appeal for lack
of jurisdiction. In their motion, appellees allege that this court lacks jurisdiction to
consider this appeal because the entry dismissing the amended complaint without
prejudice is not a final appealable order. No brief or memorandum in opposition to the
motion has been filed.
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{¶5} Pursuant to Civ.R. 41(B)(3), a dismissal under Civ.R. 41(B)(1) “operates
as an adjudication upon the merits unless the court, in its order for dismissal, otherwise
specifies.” Generally, a dismissal without prejudice constitutes “an adjudication
otherwise than on the merits” with no res judicata bar to refiling the suit. Thomas v.
Freeman, 79 Ohio St. 3d 221, 225, fn. 2 (1997); See, also, Arner v. Andover Bank, 11th
Dist. No. 2008-P-0056, 2008-Ohio-5857, at ¶ 2. This court has previously stated that a
dismissal without prejudice leaves the parties in the same position as if the plaintiff had
never brought the action. Id. Furthermore, in most cases, as long as a party may refile
or amend a complaint, a dismissal without prejudice is not a final appealable order. Id.
A dismissal without prejudice is not a final determination of the rights of the parties and,
therefore, pursuant to R.C. 2505.02, does not constitute a final order. Showe
Management Corp. v. Wilmore, 5th Dist. No. 11 CA 123, 2012-Ohio-3212, at ¶ 23.
{¶6} Here, in its June 5, 2014 entry, the trial court clearly stated that the action
was dismissed without prejudice. Hence, the trial court’s dismissal without prejudice is
not a final appealable order since appellant has the ability to refile the claims within the
time allowed by the applicable law.
{¶7} Based on the foregoing analysis, this court lacks jurisdiction to consider
this appeal at this time, and appellees’ motion to dismiss the appeal is hereby granted.
{¶8} Appeal dismissed.
DIANE V. GRENDELL, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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