[Cite as Allegretti v. York,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101231

COLLEEN ALLEGRETTI PLAINTIFF-APPELLANT

vs.

RICHARD YORK, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-804768

BEFORE: McCormack, J., Keough, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: October 9, 2014 ATTORNEYS FOR APPELLANT

John A. Sivinski David Mullen Brian J. Smith Sivinski & Smith L.L.C. 8905 Lake Avenue, 4th Floor Cleveland, OH 44102

ATTORNEYS FOR APPELLEE

Christopher J. Ankuda Karoline Maciak Ankuda, Stadler & Moeller, Ltd. 1100 Superior Avenue East Suite 1120 Cleveland, OH 44114 TIM McCORMACK, J.:

{¶1} Plaintiff-appellant, Colleen Allegretti, appeals the trial court’s October 30,

2013 order dismissing her cause of action against defendant-appellee, Richard York

(“Richard”), without prejudice for failure to prosecute. In her sole assignment of error,

Allegretti claims that the court’s dismissal was an abuse of discretion. For the reasons

that follow, we dismiss Allegretti’s appeal.

Procedural History and Substantive Facts

{¶2} On April 12, 2013, Allegretti filed a complaint against Richard York and

Tashia York (“Tashia”) for negligence and negligent entrustment, respectively, arising

from an automobile accident that allegedly occurred on or about May 3, 2011. Allegretti

alleged in her complaint that Richard negligently operated a motor vehicle, causing it to

strike the vehicle driven by Allegretti. She also alleged that Tashia, as title owner of the

vehicle driven by Richard, negligently entrusted her vehicle to Richard. The record

indicates that this complaint had not been previously filed and dismissed.

{¶3} Richard and Tashia were served the complaint by certified mail on April 22,

2013, to different addresses. Allegretti states that Richard was served at the address he

provided in the police report on the date of the accident. 1 Service to Richard was

Allegretti asserts in her brief that Richard provided a fictitious address to the responding 1

officers, which was a different address than the address noted for the vehicle he was driving. Allegretti provides no evidence to support her assertion. returned as failed on May 2, 2013, noting the address as “vacant.” Service to Tashia was

returned as failed on May 29, 2013, noting “refused.”

{¶4} On three separate dates — June 20, July 31, and September 6 — the trial

court held case management conferences during which the court advised Allegretti that

pursuant to Civ.R. 4(E), failure to serve the defendants by October 12, 2013, will result in

dismissal of her complaint without prejudice “for want of prosecution.” On October 8,

2013, Allegretti filed a motion to extend time to find and serve defendant. On this date,

Allegretti also requested the court to serve Tashia by ordinary mail and to serve Richard

by certified mail to the address associated with Tashia and her vehicle.2

{¶5} In her motion for an extension of time, Allegretti provided an affidavit

detailing the efforts she had made in attempting to locate Richard and Tashia. Allegretti

claims that she had conducted property searches, tax record searches, online searches, and

a request for information from the Ohio Bureau of Motor Vehicles. She does not,

however, claim to have attempted any additional service on Richard after service on the

initial complaint was attempted in April.

{¶6} On October 16, 2013, the court held another case management conference.

It noted that service of Tashia by regular mail remains pending and, pending good

service, Tashia would have until November 12, 2013, in which to respond to the

complaint. Ordinary mail service on Tashia was obtained on October 18, 2013.

This certified mail service on Richard would ultimately be returned as failed, noting “bad 2

address.” {¶7} On October 30, 2013, the court denied Allegretti’s motion for extension of

time to find and serve the defendants, noting that she had failed to obtain service on

Richard. The court stated as follows:

The court finds plaintiff had ample time to serve defendant Richard York, and has failed to do so. Service was first attempted on * * * Richard York on April 22, 2013 via certified mail. Notice was sent to plaintiff’s attorney on May 2, 2013 that service had failed. The court warned plaintiff of their failure to serve said defendant at three different times: 6/20/13, 7/31/13, and 9/6/13. [Plaintiff] however waited until October 8, 2013, four days before the Civ.R. 4(E) six month filing date, to file her motion for extension of time, and her instructions for service on Richard York. Therefore, plaintiff has failed to serve the defendant. Pursuant to this court’s prior orders, and Civ.R. 4(E), this case is hereby dismissed without prejudice for want of prosecution as to defendant Richard York. Partial. * * *

{¶8} On November 8, 2013, counsel for Tashia answered the complaint and filed

a notice of suggestion of death of Tashia. Thereafter, counsel for Tashia filed a motion

for summary judgment, stating that Tashia had passed away on February 22, 2011,

approximately two months prior to the accident that is the subject of the complaint. The

court granted the unopposed motion and found that Tashia was entitled to judgment as a

matter of law. Allegretti now appeals.

Law and Analysis

{¶9} The trial court in this case dismissed Allegretti’s cause of action against

Richard without prejudice for failure to prosecute after Allegretti failed to obtain service

on Richard within the time allotted by the civil rules. In a separate order, the court

dismissed Allegretti’s claims against Tashia. Allegretti, however, does not appeal the court’s decision regarding Tashia. Therefore, the judgment as to Richard is the sole

issue in this appeal.

{¶10} In its journal entry, the trial court dismissed the complaint pursuant to

Civ.R. 4(E) for lack of service and for failure to prosecute. Civ.R. 4(E) provides that a

court may dismiss a cause of action sua sponte without prejudice where there is lack of

service:

If a service of the summons and complaint is not made upon a

defendant within six months after the filing of

the complaint and the party on whose behalf

such service was required cannot show good

cause why such service was not made within

that period, the action shall be dismissed as to

that defendant without prejudice upon the

court’s own initiative with notice to such party

or upon motion.

{¶11} Civ.R. 41(B)(1), on the other hand, permits a court to dismiss a cause of

action without prejudice for failure to prosecute, stating that “[w]here the plaintiff fails to

prosecute, * * * the court upon motion of a defendant or on its own motion may, after

notice to the plaintiff’s counsel, dismiss an action or claim.” Regardless of whether the

case was dismissed under Civ.R. 4(E), for lack of service, or Civ.R. 41(B)(1), for lack of prosecution, the effect is a dismissal without prejudice. Thomas v. Freeman,

,

(1997).

{¶12} A court of appeals has jurisdiction to review final orders. Section 3(B)(2),

Article IV of the Ohio Constitution; R.C. 2505.03. An order is final if it “affects a

substantial right in an action that in effect determines the action and prevents a

judgment.” R.C. 2505.02(B)(1).

{¶13} In order for this court to review the trial court’s judgment, the appellant

must demonstrate that, in the absence of immediate review of the order, it will be denied

effective relief in the future. Bell v. Mt. Sinai Med. Ctr.,

,

(1993), modified on other grounds, Moskovitz v. Mt. Sinai Med. Ctr.,

,

(1994). Therefore, where the party may refile or amend the

complaint, the dismissal is not a final order. Roche v. On Time Delivery Servs., 8th Dist.

Cuyahoga No. 94036,

, ¶ 17.

{¶14} Generally, a dismissal without prejudice is not a final appealable order.

Lakeview Holding (Oh), L.L.C. v. Deberry, 8th Dist. Cuyahoga No. 99033,

, citing Zimmie v. Zimmie,

,

(1984).

Where the case is dismissed without prejudice (and otherwise than on the merits)

pursuant to Civ. R. 41(B)(1), the parties are in the same position as if the complaint had

never been filed, and therefore, there is no final determination of the rights of the parties

and it does not constitute a final order under R.C. 2505.02. Showe Mgmt. Corp. v.

Adams, 5th Dist. Licking No. 11CA124,

; Schmieg v. Ohio State Dept. of Human Serv., 10th Dist. Franklin No. 00AP-561,

(Dec. 19, 2000).

{¶15} In certain instances, Ohio’s savings statute, R.C. 2305.19, operates to “save”

timely filed actions by permitting a party to refile its complaint or file a new action:

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. * * *

And where a party has the ability to refile his or her claim in accordance with

the time permitted by the savings statute, the trial court’s dismissal without prejudice is

not a final appealable order. See Showe at ¶ 25; see also Johnson v. H&M Auto Serv.,

10th Dist. Franklin No. 07AP-123,

.

{¶16} An action is “attempted to be commenced,” for purposes of the savings

statute, when a party files a complaint within the applicable statute of limitations and

demands service on that complaint. See Husarcik v. Levy, 8th Dist. Cuyahoga No.

75114,

(Nov. 10, 1999) (finding that a plaintiff had

attempted to commence his action when he filed a request for service by certified mail,

but service was never perfected). A holding otherwise “belies the simple fact that the

Supreme Court of Ohio has expressly permitted a plaintiff who failed to obtain service on

a defendant to utilize the savings statute.” Id. at *7-8, citing Thomas,

,

; see also Rossiter v. Smith, 9th Dist. Wayne No. 12CA0023,

(distinguishing between “commence” and “attempt to commence”); Sorrell v. Estate of Datko,

,

,

(7th Dist.).

{¶17} The savings statute contemplates the right of a party “to commence a new

action within one year of a failure otherwise than on the merits.” Graf v. Cirino, 8th

Dist. Cuyahoga No. 96011,

, citing Cero Realty Corp. v. Am. Mfrs. Ins.

Co.,

,

(1960). A dismissal is “otherwise than on the

merits” when the court dismisses a case for failure to obtain service or for failure to

prosecute.

. And when a court dismisses a case for failure of service,

“the plaintiff may utilize the savings statute to refile within one year, providing all other

procedural requirements of the savings statute have been met.”

The savings statute

allows a party to refile a dismissed complaint “that would otherwise be time-barred.”

Hamrick v. Ramalia, 8th Dist. Cuyahoga No. 97385,

, citing

Internatl. Periodical Distrib. v. Bizmart,

,

,

, ¶ 7; Xudong v. Barrett, 10th Dist. Franklin No. 10AP-1075,

, ¶ 12

(finding the savings statute available where an action has failed “otherwise than upon the

merits” even after the applicable statute of limitations has expired).

{¶18} Where R.C. 2305.19 applies, the date for filing a new action relates back to

the filing date for the preceding action for purposes of the statute of limitations.

Frysinger v. Leech,

,

(1987). The savings statute

therefore “serves to revive an action commenced before the statute of limitations has

expired.” Johnson, 10th Dist. Franklin No. 07AP-123,

. {¶19} Here, Allegretti filed a complaint against Richard and Tashia on April 12,

2013, approximately three weeks before the expiration of the applicable statute of

limitations. See R.C. 2305.10. Her complaint was therefore timely filed. Service of the

complaint was attempted on April 22, 2013. And the record shows that this complaint

had not been previously filed and dismissed.

{¶20} Additionally, this action failed “otherwise than upon the merits” when the

trial court dismissed the case without prejudice on October 30, 2013. The trial court

dismissed Allegretti’s cause of action against Richard for failing to obtain service on

Richard within the six months prescribed in Civ.R. 4(E). The court clearly stated in its

order that the action was dismissed without prejudice. As previously discussed, a

dismissal without prejudice for failure to serve is not a final appealable order because it is

“otherwise than on its merits.” The parties are in the same position had a complaint

never been filed and, therefore, there has been no final determination of rights.

Allegretti claims that the dismissal operated as a dismissal with prejudice, or an

adjudication on the merits, because the statute of limitations has expired. However, she

fails to provide any support for this argument or, more specifically, reasons why the

savings statute could not be utilized in this case in order to permit the filing of a new

action.

{¶21} Allegretti had not previously availed herself of the savings statute. See

Thomas,

,

(the savings statute may only be used once

to refile a case). Although, as Allegretti claims, the original statute of limitations has run on her cause of action against Richard, it appears that the savings statute became

available to permit a refiling of her claim within one year from her failure “otherwise than

upon the merits,” or in this case, the trial court’s order of October 30, 2013, dismissing

her complaint against Richard without prejudice. Therefore, because Allegretti had the

ability to refile her claim within one year of the dismissal, the trial court’s order of

October 30, 2013, did not deny her effective relief in the future. Accordingly, the trial

court’s dismissal without prejudice is not a final appealable order. For this reason, this

court is without jurisdiction to review Allegretti’s assignment of error.

{¶22} However, even if the trial court’s dismissal was a final order, it was not an

abuse of the court’s discretion to dismiss Allegretti’s complaint against Richard without

prejudice. The complaint was filed nearly two years after the alleged motor vehicle

accident giving rise to the complaint. Prior to filing the motion for extension of time,

Allegretti made only one attempt in almost six months to obtain service on Richard since

the filing of the complaint. This service, attempted in April 2013, was the initial request

for service of the complaint by certified mail. The court warned Allegretti on three

occasions that failure to serve the defendants by October 12, 2013, would result in

dismissal of her complaint without prejudice. As the trial court noted in its order,

Allegretti waited until four days before the Civ.R. 4(E) six-month filing date to file her

motion for extension of time and her instructions for service on Richard York. Until that

time, she made no additional attempts to obtain service on Richard through any method of

service available, such as certified mail, ordinary mail, or service by publication. Although Allegretti claims to have made various efforts to ascertain Richard’s

whereabouts, it is entirely within the discretion of the trial court to determine that

Allegretti’s efforts were too little, too late.

{¶23} Based upon our foregoing analysis, this court lacks jurisdiction to hear this

matter because the trial court’s dismissal of Allegretti’s complaint against Richard

without prejudice is not a final appealable order.

{¶24} The appeal is dismissed.

It is ordered that appellee recover of appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, P.J., and EILEEN T. GALLAGHER, J., CONCUR