Bradley v. Talikka

[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
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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
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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.
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