[Cite as Lively v. Reulbach, 2023-Ohio-613.]

 

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

PATRICE LIVELY, :

Plaintiff-Appellant, :

Nos. 111733 and 111884

v. :

JOHN REULBACH, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: March 2, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-19-909777

Appearances:

Kisling, Nestico & Redick, Michael A. Saltzer, Esq., and 

Christopher J. Van Blargan, for appellant. 

MARY J. BOYLE, J.:

In this consolidated appeal, plaintiff-appellant, Patrice Lively 

(“Lively”), appeals the trial court’s dismissal of her case, without prejudice, and the 

denial of her Civ.R. 60(B) motion for relief from judgment. Finding that the trial 
court erred by dismissing the case, we reverse the judgment and remand the matter 

back to the trial court. 

I. Facts and Procedural History

This case arises out of a motor vehicle accident with Lively and 

defendant-appellee, John Reulbach (“Reulbach”), in July 2016. Lively filed a 

complaint against Reulbach in November 2017 in Lively v. Reulbach, Cuyahoga C.P.

No. CV-17-888567. Lively moved to dismiss this complaint without prejudice in 

September 2018. The trial court granted the motion in October 2018, and Lively 

refiled her complaint in January 2019. 

Since the refiling, the matter was set for trial four times. The trial was 

first set for January 21, 2020. This trial was cancelled, and the matter was referred 

to arbitration. Lively appealed the arbitration award, and the case was returned to 

the court’s docket in March 2020. Trial was then scheduled for May 24, 2021. On 

May 12, 2021, the court cancelled the trial and rescheduled to December 6, 2021. 

On this day, the court rescheduled the trial to March 1, 2022. Lively contends that 

this trial was cancelled on February 25, 2022, by an email from the court’s staff 

attorney.1 Although this cancellation was not entered on the court’s docket, both 

parties’ counsel were informed by the staff attorney by email that trial was cancelled 

due to the trial court’s administrative COVID-19 order. The staff attorney requested 

new trial dates from counsel. On March 2, 2022, Reulbach’s counsel emailed the 

1 Lively attached a copy of the email exchange as an exhibit to her Civ.R. 60(B) 

motion for relief from judgment.
staff attorney with new trial dates. According to Lively, the court never responded 

to those proposed dates, and on June 16, 2022, the case was dismissed without 

prejudice. On June 24, 2022, Lively filed an unopposed Civ.R. 60(B) motion for 

relief from judgment requesting the trial court vacate the dismissal. Lively argued

that the parties were waiting for the court to reset a trial date since the March 1, 2022 

trial date was cancelled by an email from the court staff attorney on February 25, 

2022, because of the court’s administrative COVID-19 order; Lively never received 

prior notice from the court of its intent to dismiss the case; and the dismissal acts as 

an adjudication on the merits because Lively already used the savings statute.2

Before the trial court ruled on the Civ.R. 60(B) motion, Lively 

appealed to this court. Lively v. Reulbach, 8th Dist. Cuyahoga No. 111733. Lively 

also filed a motion to stay this appeal and remand the matter for a ruling on her 

Civ.R. 60(B) motion. We granted her motion and the matter was remanded to the 

trial court. Following our remand, the trial court denied Lively’s Civ.R. 60(B) 

motion and dismissed the case “pursuant to Civ.R. 41(A)(2).” (Judgment Entry, 

Aug. 16, 2022.) Lively then filed a second appeal from the trial court’s denial. Lively 

v. Reulbach, 8th Dist. Cuyahoga No. 111884. We consolidated both appeals for 

2 Ohio’s savings statute, R.C. 2305.19, “operates to ‘save’ certain refiled actions that 

would otherwise be barred by the applicable statute of limitations when a plaintiff (1) 

originally commenced an action within the proper time limits, (2) failed other than upon 

the merits and (3) refiles within one year.” Lakeview Holding (OH), L.L.C. v. Farmer, 

2020-Ohio-3891, 156 N.E.3d 980, ¶ 27 (8th Dist.), citing CapitalSource Bank FBO Aeon 

Fin., L.L.C., v. Donshirs Dev. Corp., 8th Dist. Cuyahoga No. 99032, 2013-Ohio-1563, ¶ 

17, citing Thomas v. Freeman, 79 Ohio St.3d 221, 228, 680 N.E.2d 997 (1997).
briefing, hearing, and disposition, and the matter is now before us to review the 

following assignments of error: 3

Assignment of Error One: The trial court abused its discretion 

when it, sua sponte, effectively dismissed [Lively’s] case with prejudice 

without reason, explanation, or legal basis and without providing the 

due process requirements of notice, or an opportunity to be heard.

Assignment of Error Two: The trial court abused its discretion 

when it effectively dismissed [Lively’s] case, sua sponte, with prejudice 

when Appellant had zealously prosecuted her case and the record is 

devoid of any pattern of intentional, negligent, irresponsible, dilatory, 

or contumacious conduct by [Lively] or her counsel.

Assignment of Error Three: The trial court abused its discretion 

in denying [Lively’s Civ.R.] 60(B) motion for relief from judgment 

refusing to vacate an order of dismissal without reason, explanation, or 

legal basis when the grounds for relief appear on the face of the record 

and the motion was unopposed.

II. Law and Analysis

A. Final Appealable Order

As an initial matter, we must consider whether this appeal is properly 

before us. Generally, “a trial court’s dismissal of a matter without prejudice is not a 

final, appealable order.” Lakeview Holding, 2020-Ohio-3891, 156 N.E.3d 980 at ¶ 

18 (8th Dist.), citing Natl. City Commercial Capital Corp. v. AAAA at Your Serv.,

Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, 868 N.E.2d 663, ¶ 8 (“Ordinarily, a 

dismissal ‘otherwise than on the merits’ does not prevent a party from refiling and, 

therefore, * * * such a dismissal is not a final, appealable order.”). “‘Courts hold as 

such because a dismissal without prejudice leaves the parties in the same position 

3 We note that Reulbach did not file an appellate brief.
they were in prior to the action being filed; the action is treated as though it had 

never been commenced.”’ Vaught v. Pollack, 8th Dist. Cuyahoga No. 103819, 2016-

Ohio-4963, ¶ 21, quoting Selmon v. Crestview Nursing & Rehab. Ctr., Inc., 184 Ohio 

App.3d 317, 2009-Ohio-5078, 920 N.E.2d 1017, ¶ 2 (7th Dist.). In some instances, 

however, “‘refiling is not an option because the statute of limitations has already run 

and the savings statute, R.C. 2305.19, had been previously invoked. In those 

instances, even a dismissal without prejudice may be a final appealable order.’” Id., 

quoting Selmon at ¶ 2.

In the instant case, the trial court dismissed Lively’s refiled complaint 

“without prejudice.” However, because Lively’s complaint had been previously 

dismissed and then refiled under Ohio’s savings statute, the trial court’s “without 

prejudice” dismissal effectively “functioned as a dismissal with prejudice, ‘barring 

Lively’s ability to ever re-file the case.’” Whipple v. Estate of Prentiss, 8th Dist. 

Cuyahoga No. 108659, 2020-Ohio-2825, ¶ 15, citing Vaught at ¶ 13 (“A party can 

use the savings statute to refile a case one time only.”); see also Duncan v. Stephens, 

8th Dist. Cuyahoga No. 83238, 2004-Ohio-2402, ¶ 21; Gamble v. Patterson, 155 

Ohio App.3d 320, 2003-Ohio-6276, 801 N.E.2d 465, ¶ 19-21 (7th Dist.). Thus, in 

essence, “‘a final judgment has been rendered against [Lively] because the cause has 

been disposed of and there is nothing left for the determination of the trial court.’” 

Lakeview Holding at ¶ 21, quoting Natl. City at ¶ 8. As a result, we find that the trial 

court’s June 16, 2022 dismissal without prejudice is a final, appealable order.

B. Dismissal of Lively’s Complaint
Turning to the merits of Lively’s appeal, we shall address the first and 

second assignments of error together as they are interrelated. Lively argues the trial 

court abused its discretion when it sua sponte dismissed her case without 

explanation and without providing the due process requirements of notice. She 

further argues that the history of the litigation and the parties’ conduct does not 

justify a sua sponte dismissal by the trial court. Notably, Lively’s contention that the 

trial court abused its discretion was not disputed by Reulbach at the trial court or on 

appeal.

We review the trial court’s dismissal for an abuse of discretion. An 

abuse of discretion occurs when a court exercises “its judgment, in an unwarranted 

way, in regard to a matter over which it has discretionary authority.” Johnson v. 

Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. 

Here, the trial court dismissed Lively’s case under Civ.R. 41(A)(2), 

which governs voluntary dismissals and provides in pertinent part: 

(2) By order of court. Except as provided in division (A)(1) of this rule, 

a claim shall not be dismissed at the plaintiff’s instance except upon 

order of the court and upon such terms and conditions as the court 

deems proper. * * * Unless otherwise specified in the order, a dismissal 

under division (A)(2) of this rule is without prejudice.

Id. 

However, because Lively never filed a motion requesting a dismissal, 

the trial court’s dismissal is effectively a dismissal under Civ.R. 41(B)(1), which 

governs involuntary dismissals and provides:
(1) Failure to prosecute. Where the plaintiff fails to prosecute, or 

comply with these rules or any court order, 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.

Id.

In Jones v. Hartranft, 78 Ohio St.3d 368, 372, 678 N.E.2d 530 (1997), 

the Ohio Supreme Court recognized a heightened abuse-of-discretion standard that 

extends to a trial court’s dismissal “without prejudice” that has the effect of a 

dismissal “with prejudice” because the dismissal “forever den[ies] a plaintiff a 

review of a claim’s merits.” Id. at 372; Whipple at ¶ 16; St. Vincent Charity v. 

Paluscsak, 8th Dist. Cuyahoga No. 108641, 2020-Ohio-1501, ¶ 27. Therefore, our 

review of the trial court’s dismissal involves the determination of following two 

elements: (1) whether the trial court provided sufficient prior notice to Lively that 

the case could be dismissed under Civ.R. 41(B)(1), and (2) whether the dismissal 

constituted an abuse of the trial court’s discretion under the heightened abuse-ofdiscretion standard. Whipple at ¶ 16, citing Simmons v. Narine, 2014-Ohio-2771, 

15 N.E.3d 1206, ¶ 9 (8th Dist.), citing Walker v. Cleveland Clinic Found., 8th Dist. 

Cuyahoga No. 91648, 2009-Ohio-2261, ¶ 8. 

1. Notice

Before the trial court can properly dismiss a party’s claim for failure 

to prosecute under Civ.R. 41(B)(1), the record must demonstrate that the party had 

notice of the possibility of dismissal. Mokrytzky v. Capstar Capital Corp., 8th Dist. 

Cuyahoga No. 91287, 2009-Ohio-238, ¶ 12. The purpose of the notice requirement 
is to provide the party who is in default of a court order an opportunity to correct or 

explain the circumstances of the party’s default and to provide reasons why the case 

should not be dismissed with prejudice. Id.; citing Logsdon v. Nichols, 72 Ohio St.3d 

124, 647 N.E.2d 1361 (1995). Civ.R. 41(B)(1)’s notice requirement is satisfied “when 

counsel has been informed that dismissal is a possibility and has had a reasonable 

opportunity to defend against dismissal.” Quonset Hut, Inc. v. Ford Motor Co., 80 

Ohio St.3d 46, 49, 684 N.E.2d 319 (1997), citing Logsdon at 129. “What constitutes 

notice and an opportunity to be heard regarding a possible dismissal is examined on 

a case-by-case basis.” Whipple at ¶ 17, citing Hill v. Marshall, 10th Dist. Franklin 

No. 12AP-805, 2013-Ohio-5538, ¶ 8. 

In the instant case, there is nothing in the record that would indicate 

Lively received notice of the trial court’s intent to dismiss her complaint. The trial 

court never gave any explanation as to reason for its dismissal. Rather, the record 

reveals that in an email exchange with the court’s staff attorney, the trial set for 

March 2, 2022, was cancelled on February 25, 2022. This cancellation was not 

entered on the court’s docket, but both parties’ counsel were informed by the staff 

attorney that trial was cancelled due to the trial court’s administrative COVID-19 

order. On March 2, 2022, Reulbach’s counsel emailed the staff attorney with new 

trial dates. According to an affidavit by Lively’s attorney, the court never responded 

to those proposed dates. Lively’s attorney was then waiting for a new trial date by 

the trial court. However, on June 16, 2022, the trial court dismissed the case without 

prejudice. Under these circumstances, we cannot conclude that Lively received
notice, much less an opportunity to defend against dismissal, before the trial court 

dismissed her complaint. 

2. Factors Warranting Dismissal

The Ohio Supreme Court has stated that the proper factors to 

consider in reviewing a Civ.R. 41(B)(1) dismissal with prejudice include

the drawn-out history of the litigation, including a plaintiff’s failure to 

respond to interrogatories until threatened with dismissal, and other 

evidence that a plaintiff is deliberately proceeding in dilatory fashion 

or has done so in a previously filed, and voluntarily dismissed, action. 

See Link v. Wabash RR. Co. (1962), 370 U.S. 626, 633-635, 82 S. Ct. 

1386, 1390-1391, 8 L.Ed. 2d 734, 740-741; Indus. Risk Insurers v. 

Lorenz Equip. Co. (1994), 69 Ohio St. 3d 576, 635 N.E.2d 14, syllabus.

Jones, 78 Ohio St.3d at 372, 678 N.E.2d 530.

In the instant case, we find no basis upon which to conclude that 

Lively’s conduct or her counsel’s counsel warranted a dismissal of the complaint. 

The record reflects that Lively actively prosecuted the case through discovery, 

arbitration, and the final pretrial. Lively filed documents in anticipation of trial, 

including her expert’s video, trial deposition, trial brief, jury instructions, and a 

stipulation of negligence by Reulbach. Based on the email exchange between the 

parties’ attorneys and the staff attorney, the parties were waiting on a new trial date 

to be set by the court. 

Under these circumstances, counsel awaiting a new trial date did not 

reasonably warrant “forever denying” Lively the consideration of the merits of her 

complaint. “[T]he harsh remedy of dismissal with prejudice is reserved for cases in 

which a party has repeatedly, deliberately and without explanation, failed to comply 
with the trial court’s orders.” Whipple, 2020-Ohio-2825, 154 N.E.3d 550 at ¶ 29. 

Based on the record before us, it cannot be said that Lively’s conduct provided

grounds for a dismissal with prejudice. As a result, we find that the trial court 

abused its discretion in dismissing Lively’s complaint. 

Accordingly, the first and second assignments of error are sustained.

In the third assignment of error, Lively argues the trial court abused 

its discretion when it denied her Civ.R. 60(B) motion for relief from judgment. Our 

disposition, however, of the first assignment of error renders this assigned error 

moot. App.R. 12(A)(1)(c).

III. Conclusion

The trial court abused its discretion when it dismissed Lively’s 

complaint on June 16, 2022. The trial court’s dismissal without prejudice, in the 

instant case, effectively served as a dismissal with prejudice. Furthermore, there is 

nothing in the record upon which to conclude that Lively received notice of the trial 

court’s intent to dismiss her complaint and that Lively’s conduct or her counsel’s

conduct warranted a dismissal of the complaint. 

Accordingly, judgment is reversed and the case is remanded to the 

trial court.

Costs are waived.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment 

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

of the Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE

ANITA LASTER MAYS, A.J., and

EILEEN A. GALLAGHER, J., CONCUR