In re Z.S. ( 2013 )

[Cite as In re Z.S., 2013-Ohio-1042.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99082
IN RE: Z.S.
A Minor Child
[Appeal By N.S.]
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. PR-10700292
BEFORE: E.T. Gallagher, J., Keough, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: March 21, 2013
ATTORNEY FOR APPELLANT
Jeffrey F. Slavin
1810 The Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE, C.J.F.S., F.K.A. C.S.E.A
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joseph C. Young
Assistant Prosecuting Attorney
Cuyahoga Job & Family Services
P.O. Box 93894
Cleveland, Ohio 44101-5984
EILEEN T. GALLAGHER, J.:
{¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1.
{¶2} Plaintiff-appellant N.S. (“appellant”) appeals the trial court’s dismissal of his
complaint without prejudice. Because we conclude that the order granting the motion to
dismiss is not a final, appealable order, we dismiss the appeal for lack of jurisdiction.
{¶3} In January 2010, appellant filed a complaint to vacate his paternity
acknowledgment and attached a copy of genetic test results dated April 11, 2005. He
alleged that when Z.S. was born on September 9, 2004, he believed he was Z.S.’s father
and signed an affidavit acknowledging paternity. Approximately seven months after
Z.S.’s birth, results from a genetic test indicated that appellant could not be Z.S.’s
biological father. Yet, appellant did not file a complaint to vacate his paternity
acknowledgment until nearly five years later.
{¶4} Shortly after filing the complaint, appellant filed a motion to compel the
mother, N.B. (“mother”), and Z.S. to submit to genetic testing. Following a hearing, a
magistrate dismissed the case without prejudice because appellant failed to submit
“genetic test results from a genetic test administered no more than six months prior to the
filing of the motion for relief,” as required by R.C. 3119.962(A)(1)(a). The magistrate
concluded that the juvenile court lacked authority to order the parties to submit to genetic
testing under the facts presented in the case, based on this court’s decision in State ex rel.
Rojas v. Guilfu, 8th Dist. No. 84145, 2004-Ohio-6707. The trial court adopted the
magistrate’s decision, overruled appellant’s objections, and dismissed the case without
prejudice, and appellant appealed. This court dismissed the appeal for lack of a final,
appealable order. In re Z.S., 8th Dist. No. 96500, 2011-Ohio-3269, ¶ 23.
{¶5} On remand, appellant filed a second complaint and motion to vacate paternity
determination pursuant to R.C. 3119.961 and a motion for genetic testing pursuant to R.C.
2151.231. A magistrate issued a decision denying the motions for failure to state a claim
upon which relief could be granted because the genetic test results did not comply with
R.C. 3119.962(A)(1)(a). The court overruled appellant’s objections, adopted the
magistrate’s report, and dismissed the case without prejudice. Appellant now appeals
and raises one assignment of error.
{¶6} We are unable to reach the merits of appellant’s appeal because we do not
have jurisdiction. Appellate jurisdiction is limited to reviewing a lower court’s final
judgment. Section 3(B)(2), Article IV of the Ohio Constitution. To be a final,
appealable order, a judgment entry must meet the requirements of R.C. 2505.02 and, if
applicable, Civ.R. 54(B). Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88,
541 N.E.2d 64 (1989).
{¶7} R.C. 2505.02 defines a final order for purposes of appeal. Under R.C.
2505.02(B)(1), “[a]n order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right
in an action that in effect determines the action and prevents a judgment.” A “substantial
right” is “a right that the United States Constitution, the Ohio Constitution, a statute, the
common law, or a rule of procedure entitles a person to enforce or protect.” R.C.
2505.02(A)(1). For purposes of this case, we will assume that the trial court’s dismissal
for failure to state a claim upon which relief might be granted affected a substantial right
— i.e., the right to be relieved of paternal obligations, including child support for another
man’s child.
{¶8} To be final, however, “an order must also determine an action and prevent a
judgment.” Natl. City Commercial Capital Corp. v. AAAA At Your Serv., Inc., 114 Ohio
St.3d 82, 2007-Ohio-2942, 868 N.E.2d 663, ¶ 7; R.C. 2505.02(B)(1). “For an order to
determine the action and prevent a judgment for the party appealing, it must dispose of
the whole merits of the cause or some separate and distinct branch thereof and leave
nothing for the determination of the court.” Id., quoting Hamilton Cty. Bd. of Mental
Retardation & Dev. Disabilities v. Professionals Guild of Ohio, 46 Ohio St.3d 147, 153,
545 N.E.2d 1260 (1989).
{¶9} Ordinarily, a dismissal without prejudice constitutes “an adjudication
otherwise than on the merits” with no res judicata bar to refiling the suit.1 Thomas v.
Freeman, 79 Ohio St.3d 221, 225, 1997-Ohio-395, 680 N.E.2d 997, fn. 2. A dismissal
without prejudice leaves the parties in the same position they were in prior to the action
being filed. Id., citing Johnson v. H&M Auto Serv., 10th Dist. No. 07AP-123,
The “double dismissal rule” contained in Civ.R. 41(A)(1) provides that plaintiff’s second
1
voluntary dismissal constitutes an adjudication on the merits. The double dismissal rule is
inapplicable in the instant case, which involves an involuntary dismissal of appellant’s complaint by
the court.
2007-Ohio-5794, ¶ 7. Thus, in most cases, such as this one, “a dismissal without
prejudice is not a final appealable order because a party may refile or amend a
complaint.” Id. See also Thorton v. Montville Plastics & Rubber, Inc., 121 Ohio St.3d
124, 2009-Ohio-360, 902 N.E.2d 482, ¶ 24. In other words, appellant may file yet
another complaint to seek relief of his paternity acknowledgment by complying with the
requirements set forth in R.C. 3119.962(A)(1)(a) or, in the alternative, by demonstrating
that mother willfully refused to submit Z.S. to genetic testing as provided in R.C.
3119.963(B). State ex rel. Rojas v. Guilfu, 8th Dist No. 84145, 2004-Ohio-6707, ¶ 16.
{¶10} Because the juvenile court’s order was not final, this court lacks jurisdiction
and must dismiss the appeal.
{¶11} Appeal 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.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN A. KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR