I respectfully dissent from the majority's holding as to the second assignment of error only. The case law seems to be divided as to the issue of whether a dismissal under Civ.R. 12(B)(6) is an adjudication on the merits or whether it is never an adjudication on the merits. Even within our own court, some of the cases hold that Civ.R. 41(B)(3) renders a dismissal an adjudication on the merits if the court fails to indicate on the journal entry that the dismissal is with prejudice or without prejudice. I would follow the most recent holdings out of this court and find that the dismissal of the appellants' second and third claims is without prejudice.
The majority relies upon State ex rel. O'Donnell v.Vogelgesang (1993), 91 Ohio App.3d 585, 632 N.E.2d 1367,Mayrides v. Franklin Cty. Prosecutor's Office (1991), 71 Ohio App.3d 381, 594 N.E.2d 48, and Western Ins. Co. v. LumbermansMut. Ins. Co. (1985), 26 Ohio App.3d 137, 26 OBR 354,499 N.E.2d 1, for the proposition that Civ.R. 41(B)(3) renders any dismissal an adjudication upon the merits if the court fails to indicate that the dismissal is without prejudice. None of these cases is out of this court. As published opinions, the cases are persuasive but not binding upon this court.
Mayrides has been cited by several cases from Cuyahoga County to support the proposition that Civ.R. 12(B)(6) motions are final adjudications on the merits. See Willis v. Cuyahoga Metro.Hous. Auth. (Feb. 10, 1994), Cuyahoga App. No. 65472, unreported, 1994 WL 43884, and Fant v. Greater ClevelandRegional Trans. Auth. (June 9, 1994), Cuyahoga App. No. 66415, unreported, 1994 WL 258556. However, Mayrides stood for the proposition that a trial court may not dismiss a cause of action without notification of the parties. The Franklin County appellate court's finding that a 12(B)(6) motion "operates as an adjudication on *Page 652 the merits" was not relevant to its disposition of the appeal and, therefore, was dicta. Mayrides v. Franklin Cty.Prosecutor's Office, 71 Ohio App.3d at 383, 594 N.E.2d at 49.
Furthermore, the Franklin County appellate court has released a more recent case where it has found that the trial court erred in actually marking a dismissal for failure to state a claim as dismissed with prejudice:
"However, in journalizing its dismissal of the fraud claim, the trial court dismissed the claim with prejudice. To that extent, the trial court erred. A dismissal for failure to state a claim is not a dismissal with prejudice, but a dismissal without prejudice." Gallagher v. Borden, Inc. (1992), 84 Ohio App.3d 185,190, 616 N.E.2d 577, 580.
I find that it defies logic to rule a dismissal which the trial court failed to mark as with or without prejudice as an adjudication on the merits but to find that an identical dismissal which was marked "with prejudice" should not operate as an adjudication on the merits. In the interest of fairness, parties should have the opportunity to amend and refile their complaints in many instances where the initial complaints failed to state a claim for relief. I would follow the more recent case from this court dealing with this issue, which relies upon the more recent Franklin County case, Gallagher v. Borden, supra, to hold that the trial court's dismissal of appellants' second and third claims was without prejudice. See Weinstock v. YeshivathAdath B'nai Israel (May 11, 1995), Cuyahoga App. No. 67413, unreported, 1995 WL 277067.