{¶ 1} Plaintiff-appellant, Gloria Selmon, individually and as executor of the estate of Douglas Selmon, filed a timely notice of appeal from the sua sponte decision of the Belmont County Common Pleas Court dismissing her complaint
{¶ 2} Our court has previously stated that generally an involuntary dismissal without prejudice is not a final, appealable order. Clones v. Kohli, 7th Dist. No. 02CA121,
{¶ 3} Here, the record shows that the complaint was dismissed without prejudice. Furthermore, while the statute of limitations has run on Gloria’s claim, she admits and the record confirms that the saving statute has not yet been invoked. The saving statute, R.C. 2305.19(A), permits a plaintiff, even after the statute of limitations has expired, to refile a claim that “fails otherwise than upon the merits” within one year after the date of “the plaintiffs failure
{¶ 4} Hence, when the above general law is applied, it appears that the dismissal ordеr is not a final, appealable order. However, Gloria contends that the general law is not applicable in this instance. In trying to distinguish this case from the above espoused law, she argues the following three points: (1) since the order extinguishes a right belonging to her, it is appealable under Lippus v. Lippus, 6th Dist. No. E-07-003,
{¶ 5} There are two Ohio Supreme Court decisions that courts have found to control this issue of whether a dismissal without prejudice with or without prior notice is a final, appealable order. They are Hensley v. Henry (1980),
{¶ 6} In Hensley, prior to trial, the plaintiff requested a continuance, which was denied by the trial court. The plaintiff then voluntarily dismissed the cause of action without prejudice pursuant to Civ.R. 41(A)(1)(a). The plaintiff then discovered that refiling might be barred by the statute of limitations and filed a Civ.R. 60(B) motion to vacate the voluntary dismissal. The trial court granted the relief. The appellate court affirmed that ruling and held that Civ.R. 60(B) permitted the trial сourt to relieve a plaintiff from the consequences of Civ.R. 41(A)(1). The Supreme Court held that the voluntary dismissal pursuant to Civ.R 41(A)(1) did not operate as an adjudication on the merits because the plaintiff had not previously dismissed in any court an action based on the same claim and because the notice of dismissal did not otherwise state it should so operate. Hensley,
{¶ 7} In Svoboda, after filing the complaint, the plaintiffs counsel withdrew from the case. The plaintiff requested that the trial court grant him 30 days to rеtain new counsel, which it did. After the 30 days had elapsed and the plaintiff still had not retained counsel, the trial court contacted the plaintiff and urged him to obtain counsel and informed him that if he did not retain counsel, the court would dismiss the case. The defendants then filed their answer to the complaint. A couplе of months later, the court sent a letter to the plaintiff instructing him to contact the court within ten days or the case would be dismissed. The plaintiff, without counsel, did not respond. After the ten days elapsed, the court dismissed the cause without prejudice for want of prosecution. A few months after the dismissal, the plaintiff, with newly retained counsel, filed a motion to vacate the dismissal on the basis of Civ.R. 60(B)(1), excusable neglect. The trial court overruled the motion, and the appellate court affirmed that ruling. On appeal, the Ohio Supreme Court found that the trial court had erred in dismissing the cause for want of prosecution bеcause the trial court failed to give the plaintiff or the plaintiffs counsel notice of its intent to dismiss. Svoboda,
{¶ 8} “Furthermore, since the trial court had no right to order plaintiff to obtain legal counsel, it had no right or power to make a valid ‘court order’ within the meaning of Civ.R. 41(B)(1) to that effect, and then to dismiss the action for fаilure to comply with such void court order.” (Emphasis sic.) Id. at 350, 6 OBR 403,
{¶ 9} As can be seen by a discussion of the two cases, the Svoboda court did not discuss whether the involuntary dismissal without prejudice was a final order; rather, it reached the merits of the case. Hensley, on the other hand, determined that the voluntary dismissal without prejudice was not a final order and did not reach the merits.
{¶ 10} One distinguishing factor between the cases is that in Svoboda, the рlaintiff did not get prior notice of the dismissal, while in Hensley there was notice (since it was a voluntary dismissal). Despite that difference, as stated above, some appellate courts when looking at both cases have found that an involuntary dismissal without prejudice without prior notice is not a final, appealable order. Dues, 10th Dist. No. 08AP-943,
{¶ 12} “We note, however, that some Ohio courts have reversed trial court dismissals without prejudice when plaintiffs were not afforded notice of the dismissals. For example, in Svoboda v. Brunswick (1983),
{¶ 13} Gloria disputes the above holding and reasoning by directing this court to four other cases that she contends find thе lack of prior notice renders the dismissal a final, appealable order. The first case she cites is Drescher v. Summers (1986),
{¶ 15} The next case cited is Rogers v. United Presidential Life Ins. (1987),
{¶ 16} The last case cited is Woodson v. Highland Beefalo Farms, Inc. (1996),
{¶ 17} Unlike the Ebbets Partners line of cases, these cases cited by Gloria are not very instructive, since they do not directly address whether the order was a final, appealable order. Likewise, they do not help in resolving any perceived conflict between Hensley and Svoboda, since they do not discuss Hensley and its holding.
{¶ 18} There is only one other case that discusses Hensley and Svoboda, and that is Lippus, 6th Dist. No. E-07-033,
{¶ 20} While the Lippus court uses the distinction of involuntary versus voluntary, it does not primarily rely on that distinction. If it had relied predominantly on that distinction it would have dismissed the cause without further disсussion. Instead, it discussed the divorce proceedings and found that a substantial right was affected, i.e., the right to child and spousal support during the pendency of the action.
{¶ 21} Having reviewed all of these cases, we find that the four cases cited by Gloria that purportedly show that a dismissal without prejudice without рrior notice is a final, appealable order do not support that position, because they do not discuss the finality of the order. Furthermore, we tend to agree with the Ebbets Partners line of cases, which hold that an involuntary dismissal without prejudice is not a final, appealable order. However, we qualify that holding by stating that in some instances, such a dismissal could be a final, appealable order if a substantial right is affected, such as was found in Lippus.
{¶ 22} That said, this case is not analogous to Lippus. The holding in Lippus is specific to the context of a divorce action with child- and spousal-support issues, where it is plausible to see that a substantial right is affected by the involuntary dismissal. However, in this instance, we are not dealing with child or spousal support. Rather, Gloria’s claim alleges negligence by a nursing home, and the substantial rights claimed to be lost by the involuntary dismissal are the scheduled trial date (allegedly both parties were prepared to go forward on that date) and the ability to voluntarily dismiss the case and invoke the saving statute.
{¶ 23} These alleged substantial rights are not equivalent to the substantial rights found in Lippus. The fact that discovery was completed and the case was ready for trial is not a loss of a substantial right. Although it allegedly took two years to prepare the case for trial, that preparation is not lost by having to refile
{¶ 24} Consequently, we do not find that this case is analogous to Lippus and we do not find that a substantial right, like the one found in Lippus, is present in this case. Therefore, Gloria’s first two arguments that the Civ.R. 41(B) order is a final, appealable order fail.
{¶ 25} The third argument made is that this court’s Van-American decision supports the position that when a trial court makes knowingly false statements аnd dismisses a case to clear its own docket and not for reasons that had anything to do with the conduct of the parties, the dismissal without prejudice is a final, appealable order. In that ease we stated:
{¶ 26} “We should prefer to reach the merits of this case, particularly where, as here, we believe the trial court’s dismissal was partly in error. We agree with the court in Stafford, supra, that reviewing dismissals without prejudice may be desirable, since absent appellate review trial courts would have carte blanche in dismissing matters as long as they did so without prejudice.” Van-American Ins., 7th Dist. Nos. 97JE42, 97JE46,
{¶ 27} Other than this quote acknowledging the danger in giving trial judges unfettered power to dismiss a case and not have that dismissal reviewed, Van-American provides no guidance in the issue at hand. Vam-American did not deal with an involuntary dismissal without prejudice without prior notice, nor did it involve a claim that the trial court made knowingly false statements to further its own goal. If we were to find merit in Gloria’s argument, that would mean that anytime the integrity of the judicial system was called into question by the actions of the acting trial judge, the order would be final. The problem with that is that there is no basis in case law for a finding that the actions of the trial judge would cause an otherwise nonfinal order to become final. Thus, her argument to the contrary is meritless.
{¶ 28} For the foregoing reasons, we find that the trial сourt’s involuntary dismissal without prejudice without prior notice is not a final, appealable order,
Cause dismissed.
Notes
. We have not ruled on the issue. In Van-American, we noted that courts have reversed a dismissal without prеjudice when the dismissal was entered without notice to plaintiffs.
. The Lippus court asserted that its decision was at odds with Ebbets Partners and Stafford and as such certified a conflict to the Ohio Supreme Court. However, that appeal was not perfected by the parties.