[Cite as Allstate Fire & Cas. v. Headley, 2015-Ohio-4606.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 ALLSTATE FIRE & CASUALTY                           :
 INSURANCE CO.                                      :
                                                    :  C.A. CASE NO. 26726
         Plaintiff-Appellant                        :
                                                    :  T.C. NO. 15CV423
 v.                                                 :
                                                    :  (Civil appeal from
 SARAH HEADLEY                                      :   Common Pleas Court)
                                                    :
         Defendant-Appellee                         :
                                                    :
                                               ...........

                                               OPINION

              Rendered on the ___6th___ day of ____ November_____, 2015.

                                               ...........

TODD W. SMITH, Atty, Reg. No. 0076794, 6047 Frantz Road, Suite 203, Dublin, Ohio
43017
      Attorney for Plaintiff-Appellant

DAVID C. AHLSTROM, Atty. Reg. No. 0085784, 9032 Union Centre Blvd., Suite 201,
West Chester, Ohio 45069
and
LAVELL O. PAYNE, Atty. Reg. No. 0092545, 50 S. Main Street, Suite 502, Akron, Ohio
44308

        Attorneys for Defendant-Appellee

                                              .............

DONOVAN, J.
                                                                                         -2-


       {¶ 1} This matter is before the court on the Notice of Appeal of Allstate Fire and

Casualty Insurance Company (“Allstate”), filed June 12, 2015. Allstate appeals from the

May 13, 2015 decision of the trial court that granted Sarah Headley’s April 16, 2015

Motion to Dismiss Allstate’s Complaint with prejudice for failure to state a claim upon

which relief can be granted.      Since the trial court lacked jurisdiction to rule upon

Headley’s motion, having previously dismissed the matter without prejudice on March 13,

2015, Allstate’s appeal is hereby dismissed for lack of a final appealable order.

       {¶ 2} On January 22, 2015, Allstate filed a Complaint against Headley, alleging

that “Headley negligently operated a motor vehicle in such a manner as to damage

Plaintiff’s insured’s motor vehicle in the total sum of $16,128.26 * * *.” Allstate alleged

that it paid its insured the net sum of $15,728.26, and that its insured sustained an

unreimbursable loss of $400.00. The complaint provides that Allstate “demands judgment

against the defendants, Robert J. Palumbo and One Way Express, Inc. * * *.”

       {¶ 3} On February 23, 2015, a Failure of Service Notification was issued, and on

the same day the trial court issued a Notice that provides that Headley “has not been

served,” and that failure “to file a response to this notice within fourteen days may result

in administrative dismissal of this action.” On March 13, 2015, the court issued an Order

of Dismissal without prejudice for failure to prosecute. On March 16, 2015, Allstate

requested service of the complaint at Headley’s correct address, and the court’s docket

reflects that service was accomplished on March 21, 2015.

       {¶ 4} On April 16, 2015, Headley filed her motion to dismiss Allstate’s complaint,

arguing in part that an “examination of Plaintiff’s Complaint reveals that the Plaintiff

attempts to set forth a claim for damages against Defendant Headley, but fails to set forth
                                                                                            -3-


a demand for judgment against her.” The trial court set a submission date of May 8,

2015, and subsequently granted the motion to dismiss with prejudice.

       {¶ 5} Allstate asserts one assignment of error herein as follows:

              THE TRIAL COURT ABUSED ITS DISCRETION AND/OR ERRED

       IN GRANTING DEFENDANT/APPELLEE’S MOTION TO DISMISS

       PLAINTIFF/ APPELLANT’S COMPLAINT BECAUSE THE TRIAL COURT

       LACKED SUBJECT MATTER JURISDICTION TO HEAR AND OR RULE

       UPON SAID MOTION.

       {¶ 6} Allstate asserts that since “the trial court had already dismissed the present

matter for failure to prosecute on or about March 13, 2015, the May 13, 2015 Entry and

Order is void because the trial court lacked subject matter jurisdiction to hear and render

a decision upon Appellee’s motion,” in reliance upon Ebbets Partners, Ltd. v. Day, 2d

Dist. Montgomery No. 21556, 2007-Ohio-1667. This Court in Ebbets determined that an

“action dismissed without prejudice for failure to prosecute is a dismissal otherwise than

on the merits, and as such, is not a final, appealable order. * * * Furthermore, ‘[a] dismissal

without prejudice relieves the court of all jurisdiction over the matter, and the action is

treated as though it had never been commenced.’ * * *.” Id., ¶11. In Ebbets, the matter

was dismissed without prejudice, and the defendants filed a motion pursuant to Civ.R.

60(B), asserting in part that the trial court “inadvertently ‘overlooked’ their counterclaim.”

Id., ¶ 9. This Court concluded that the Defendants’ motion for relief from judgment “was

a nullity, and the trial court’s ruling on that motion was a nullity, also.” Id., ¶12.

       {¶ 7} Headley responds as follows:

              The decision reached by the Court in Ebbets is not incompatible with
                                                                                           -4-


       the trial court’s decision in the case at bar. However, the facts in these two

       cases differ in that on March 16, 2015, three days after the court’s dismissal

       and subsequent relief from jurisdiction in this matter, [Allstate] “requested

       service of the summons and complaint be issued via certified mail to

       Appellee Headley’s new address located at 5424 Whitmore Drive,

       Cincinnati, Ohio 45238.” * * * At that point, Appellant’s reissuance of

       service constituted a refiling of the Complaint, commencing a new action

       within the period provided for by R.C. 2305.19, the Ohio Savings Statute.

       {¶ 8} R.C. 2305.19 provides:

              (A) In any action that is commenced or attempted to be commenced,

       if in due time a judgment for the plaintiff is reversed or if the plaintiff fails

       otherwise than upon the merits the plaintiff * * *may commence a new action

       within one year after the date of the reversal of the judgment or the plaintiff’s

       failure otherwise than upon the merits or within the period of the original

       applicable statute of limitations, whichever occurs later. * * *

       {¶ 9} Headley further directs our attention to Civ.R. 3(A), which provides: “A civil

action is commenced by filing a complaint with the court, if service is obtained within one

year from such filing upon a named defendant * * *”, and Goolsby v. Anderson Concrete

Corp., 61 Ohio St.3d 549, 575 N.E.2d 801 (1991), which held that “an instruction to serve

a complaint in an original action after the statute of limitations period has expired amounts

to re-filing of that action for purposes of R.C.2305.19.” Schneider v. Steinbrunner, 2d

Dist. Montgomery No. 15257, 1995 WL 737480, * 4 (Nov. 8, 1995). In reply, Allstate

asserts that Goolsby does not apply.
                                                                                       -5-




      {¶ 10} Pursuant to Ebbets, the trial court relinquished jurisdiction over the matter

herein upon dismissal without prejudice on March 13, 2015. Accordingly, the trial court’s

May 13, 2015 Entry and Order purporting to dismiss the matter with prejudice is a nullity,

because the court lacked jurisdiction to rule on Headley’s motion to dismiss. In the

absence of a final appealable order, Allstate’s appeal is hereby dismissed.

                                      ..........

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

Todd W. Smith
David C. Ahlstrom
Lavell O. Payne
Hon. Michael L. Tucker
