[Cite as Heart v. Ferron,
2021-Ohio-2184.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
JOHN HEART, CASE NO. 2021-L-035
Plaintiff-Appellant,
Civil Appeal from the
-v- Court of Common Pleas
JOHN FERRON, M.D.,
Trial Court No. 2020 CV 001264
Defendant-Appellee.
MEMORANDUM
OPINION
Decided: June 28, 2021
Judgment: Appeal Dismissed
John Heart, pro se, 6112 Althea Drive, Painesville, OH 44077 (Plaintiff-Appellant).
David T. Moss, Hanna, Campbell & Powell, LLP, 3737 Embassy Parkway, Suite 100,
Akron, OH 44333 (For Defendant-Appellee).
MARY JANE TRAPP, P.J.
{¶1} On March 2, 2021, appellant, John Heart, pro se, filed a notice of appeal
from a February 2, 2021 judgment of the Lake County Court of Common Pleas. In that
entry, the trial court granted the motion for judgment on the pleadings filed by appellee,
John Ferron, M.D., denied appellant’s motion to proceed without an affidavit of merit, and
“dismissed without prejudice” appellant’s complaint.
{¶2} An appellate court may only consider appeals from final judgments or
orders. Noble v. Colwell, 44 Ohio St.3d 92, 96 (1989). According to Section 3(B)(2),
Article IV of the Ohio Constitution, a trial court’s judgment can only be immediately
reviewed by an appellate court if it constitutes a “final order” in the action. Estate of
Biddlestone, 11th Dist. Trumbull No. 2010-T-0131,
2011-Ohio-1299, ¶ 3. If a lower court’s
order is not final, an appellate court has no jurisdiction to review the matter and it must
be dismissed. Gen. Acc. Ins. Co. v. Ins. of N. Am.,
44 Ohio St.3d 17, 20 (1989).
{¶3} Pursuant to Civ.R. 41(B)(3), a dismissal under division (B) of this rule
“operates as an adjudication upon the merits unless the court, in its order for dismissal,
otherwise specifies.” In general, 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, Thomas v. Target Stores, 11th
Dist. Geauga No. 2009-G-2906,
2010-Ohio-1158, at ¶ 18. As previously stated by this
court, a dismissal without prejudice leaves a party in the same position he or she would
have been in prior to the action being filed.
Id. citing to Johnson v. H & M Auto Service
et al., 10th Dist. No. 07AP-123,
2007-Ohio-5794, at ¶ 7. We further note that a dismissal
without prejudice is not a final appealable order because a party may refile or amend a
complaint.
Id.
{¶4} Here, because the trial court’s dismissal of appellant’s complaint was
without prejudice, he cannot now appeal. Since appellant may have the ability to refile
his complaint, the trial court’s dismissal without prejudice is not a final appealable order.
Accordingly, this appeal is hereby, sua sponte, dismissed for lack of jurisdiction.
{¶5} Appeal dismissed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.
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Case No. 2021-L-035
