[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.

Jud g ment: Appeal dismissed.

Orlando L. Bradley, pro se, 528 West 40th Street, Ashtabula, OH 44004 (PlaintiffAppellant )

. 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, file d 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 comp laint was apparently served on “Leo J. Talikka” who, on November 7, 2018, filed a mo tion to dismiss alleging2 the complaint was filed against “Leo L. Talikka,” someone he do es not know. Accordingly, dismissal was ostensibly sought for lack of jurisd iction over the person. On the same date, the trial court granted the motion without desig nating its effect. On appeal, this court concluded that because the dismissal was ent ered 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 o rder. 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 fo r 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, appellan t filed an amended complaint, under dismissed Case No. 2018-CVI-00749, aga inst Leo J. Talikka. On June 6, 2019, the trial court sua sponte struck th e 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 po sition 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 complet ely negating the original3 action, appellant was required to re-file the action. Rather t han 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 prosecut e 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 o f the case without affording appellant the chance to respond was a violation of constitution al due process. Id . Had the court given appellant the opportunity to respond, he could have corrected the captioning error, thereby avoiding unnecessary expense and reso urce waste, and amending the complaint. Because, however, the matter was dismi ssed 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 techni calities.”’” 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 proced ures. Indeed, the small claims procedure encourages two citizens to argue their differe nces 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 afford ed basic due process. Consequently, as of the issuance of this opinion, appellant has been unable to4 overcome the basic procedural hurdle of filing a complaint in a “user-friendly” forum designed for citizens, not lawyers, to resolve an ostensibly sm all dispute. {¶8} Because the underlying judgment was a “failure other than on th e 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.