Coleman v. Stroup , 2023 Ohio 1080 ( 2023 )

[Cite as Coleman v. Stroup, 2023-Ohio-1080.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
Courtney M. Coleman, : Case No. 21CA17
Plaintiff-Appellant, :
v. : DECISION AND
JUDGMENT ENTRY
Abby Stroup, et al., :
Defendants-Appellees. : RELEASED 3/28/2023
______________________________________________________________________
APPEARANCES:
James R. Kingsley, Circleville, Ohio, for appellant.
Samuel E. Endicott, Baker & Hostetler, LLP, Columbus, Ohio, for appellees Mount Carmel
College of Nursing and Mount Carmel Health System.
Brian S. Stewart, Circleville, Ohio, for appellees Madelyn Dozer and Abby Stroup.
______________________________________________________________________
Hess, J.
{¶1} Courtney M. Coleman appeals from several entries of the Pickaway County
Common Pleas Court dismissing her claims against Abby Stroup, Maddie Azriel Dozer,
MCCN (i.e., Mount Carmel College of Nursing), and Mount Carmel Health Systems Trinity
Health Corporation (“MCHS”), defendants below.1 However, when Coleman filed her
notice of appeal, there was no final appealable order for us to review because none of
the entries resolved Stroup’s counterclaims against Coleman or certified that there was
“no just reason for delay” under Civ.R. 54(B). Although the entries became final after
1 In this sentence we have stated the defendants’ names as they appear in the complaint. As indicated in
the appearances section of this opinion, some of the defendants refer to themselves somewhat differently
in their appellate briefs.
Pickaway App. No. 21CA17 2
Coleman filed her notice of appeal by virtue of Stroup filing a Civ.R. 41(A)(1)(a) notice of
voluntary dismissal of her counterclaims, and App.R. 4(C) sometimes secures appellate
jurisdiction over premature notices of appeal, the rule does not apply in this case.
Accordingly, we lack jurisdiction to consider this appeal and dismiss it.
I. PROCEDURAL HISTORY
{¶2} In June 2020, Coleman filed a complaint against Stroup, Dozer, MCCN, and
MCHS asserting claims for defamation per se and per quod, false light invasion of privacy,
intentional infliction of emotional distress, intentional interference with business contract,
and breach of contract. Stroup filed an answer and counterclaims alleging that the filing
of the complaint against her constituted frivolous conduct under R.C. 2323.51 and that
Coleman engaged in abuse of process by filing a complaint which “has been perverted to
attempt to accomplish an ulterior purpose for which it was not designed.” Dozer filed a
Civ.R. 12(B)(6) motion to dismiss the claims against her. MCCN and MCHS filed an
answer and a Civ.R. 12(C) motion for judgment on the pleadings with respect to the claims
against them.
{¶3} On December 29, 2020, the trial court issued a decision and entry on
Dozer’s Civ.R. 12(B)(6) motion. The court dismissed the claim against Dozer for
defamation and found that Coleman “did not include” Dozer in the intentional infliction of
emotional distress claim. However, the court denied the motion with respect to the
remaining claim against Dozer, which was for false light invasion of privacy.
{¶4} On January 4, 2021, the trial court issued a decision and entry on MCCN
and MCHS’s Civ.R. 12(C) motion. The court dismissed the claims against them for
defamation and false light invasion of privacy, found that Coleman did not include them
Pickaway App. No. 21CA17 3
in her claim for intentional infliction of emotional distress, and found that Coleman did not
direct her claim for intentional interference with business contract toward either of them.
However, the court denied the motion with respect to the remaining claim against them
for breach of contract.
{¶5} Later, MCCN and MCHS moved for summary judgment on the breach of
contract claim against them, Dozer moved for summary judgment on the false light
invasion of privacy claim against her, and Stroup moved for summary judgment on all of
Coleman’s claims against her. On September 28, 2021, the trial court issued three
decisions and entries which granted these motions and dismissed the remaining claims
against each of the defendants. The decision and entry regarding MCCN and MCHS
states that it is “a final appealable order.”
{¶6} On October 25, 2021, Coleman filed a notice of appeal. The notice states
she is appealing “from the final judgments entered in this action, on September 28, 2021.”
The notice then identifies the judgments being appealed as the December 29, 2020 entry,
January 4, 2021 entry, and September 28, 2021 entries.
{¶7} On November 30, 2021, Stroup filed a “notice of dismissal” in the trial court
which stated that pursuant to Civ.R. 41, she dismissed her counterclaims against
Coleman without prejudice.
II. ASSIGNMENTS OF ERROR
{¶8} Coleman presents six assignments of error:
Assignment of Error No. 1: The trial court committed prejudicial error when
it granted summary judgment in favor of all defendants upon plaintiff’s
claims for libel and slander.
Pickaway App. No. 21CA17 4
Assignment of Error No. 2: The trial court committed prejudicial error when
it granted appellees[ ] summary judgment in regard to appellant’s false light
invasion of privacy claims against all appellees.
Assignment of Error No. 3: The trial court committed prejudicial error when
it dismissed appellant’s intentional infliction of emotional distress claims.
Assignment of Error No. 4: The trial court committed prejudicial error when
it dismissed appellant’s intentional interference with a business contract
claim.
Assignment of Error No. 5: The trial court committed prejudicial error when
it granted summary judgment for appellee upon appellant’s claim for breach
of contract.
Assignment of Error No. 6: The trial court committed prejudicial error when
it denied appellant’s motion for a restraining order to enable her to stay in
school.
III. LAW AND ANALYSIS
{¶9} Before we address the merits of this appeal, we must decide whether we
have jurisdiction to do so. “Courts of appeals shall have such jurisdiction as may be
provided by law to review and affirm, modify, or reverse judgments or final orders of the
courts of record inferior to the court of appeals within the district * * *.” Ohio Constitution,
Article IV, Section 3(B)(2). “If a court’s order is not final and appealable, we have no
jurisdiction to review the matter and must dismiss the appeal.” Clifton v. Johnson, 4th
Dist. Pickaway No. 14CA22, 2015-Ohio-4246, ¶ 8. “In the event that the parties do not
raise the jurisdictional issue, we must raise it sua sponte.” Id. Our review of the record
in this case revealed a jurisdictional issue which we raised during oral argument, and the
parties have filed supplemental briefs regarding it.
{¶10} Generally, an order must meet the requirements of R.C. 2505.02 and Civ.R.
54(B), if applicable, to constitute a final appealable order. Chef Italiano Corp. v. Kent
State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus. Under R.C. 2505.02(B)(1),
Pickaway App. No. 21CA17 5
an order is final if it “affects a substantial right in an action that in effect determines the
action and prevents a judgment[.]” “ ‘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.’
” State ex rel. Sands v. Culotta, 165 Ohio St.3d 172, 2021-Ohio-1137, 176 N.E.3d 735,
¶ 8, 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).
{¶11} “Additionally, if the case involves multiple parties or multiple claims, the
court’s order must meet the requirements of Civ.R. 54(B) to qualify as a final, appealable
order.” Clifton at ¶ 10. Civ.R. 54(B) states: “When more than one claim for relief is
presented in an action * * * or when multiple parties are involved, the court may enter final
judgment as to one or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay.” “Absent the mandatory language
that ‘there is no just reason for delay,’ an order that does not dispose of all claims is
subject to modification and is not final and appealable.” Clifton at ¶ 10. The purposes of
Civ.R. 54(B) are “ ‘to make a reasonable accommodation of the policy against piecemeal
appeals with the possible injustice sometimes created by the delay of appeals’ * * *, as
well as to insure that parties to such actions may know when an order or decree has
become final for purposes of appeal * * *.” Pokorny v. Tilby Dev. Co., 52 Ohio St.2d 183,
186, 370 N.E.2d 738 (1977), quoting Alexander v. Buckeye Pipe Line Co., 49 Ohio St.2d
158, 160, 359 N.E.2d 702 (1977).
{¶12} There is no dispute that at the time Coleman filed her notice of appeal, none
of the orders from which she appeals was a final appealable order. This case involves
Pickaway App. No. 21CA17 6
multiple claims and parties. When Coleman filed her notice of appeal, her claims against
the defendants had been resolved, but Stroup’s counterclaims against Coleman had not
been resolved, and none of the trial court’s orders contain the mandatory Civ.R. 54(B)
language that there is no just reason for delay.
{¶13} After Coleman filed this appeal, Stroup voluntarily dismissed her
counterclaims. Coleman suggests that if the notice of voluntary dismissal is valid, the
orders she appeals from became final when Stroup filed the notice of voluntary dismissal,
and pursuant to App.R. 4(C), we must treat the premature notice of appeal as if it was
filed immediately after the notice of voluntary dismissal and consider the merits of the
appeal. Coleman relies on State v. Craig, 159 Ohio St.3d 398, 2020-Ohio-455, 151
N.E.3d 574, and Robinson v. Spurlock, 4th Dist. Jackson No. 11CA4, 2012-Ohio-1510,
to support her position. Coleman suggests that if App.R. 4(C) does not apply, she did not
lose her opportunity to appeal by failing to file a notice of appeal within 30 days of the
filing of the notice of voluntary dismissal. Coleman asserts that the notice of voluntary
dismissal did not comply with due process because the notice did not state it was a “final
appealable order” and the clerk did not serve it. She also asserts that pursuant to App.R.
4(A)(3), the time to appeal never began to run because the clerk did not serve the notice
of voluntary dismissal—Stroup’s counsel did. Coleman claims that upon our dismissal of
the present appeal, she can “refile” her notice of appeal once Stroup refiles her notice of
voluntary dismissal “with notation that it is a final appealable order and the clerk properly
completes service.”
{¶14} Alternatively, Coleman asserts that the notice of voluntary dismissal is a
nullity. She suggests that the filing of the notice of voluntary dismissal was inconsistent
Pickaway App. No. 21CA17 7
with our appellate jurisdiction because the notice related to an aspect of the case on
appeal, but she does not elaborate on this position. In addition, citing Brown v. Potter, 2d
Dist. Montgomery Nos. 26774, 26775, 2015-Ohio-4289, she asserts that a party “cannot
file a notice of dismissal pending appeal,” and citing Huntington Natl. Bank v. Syroka, 6th
Dist. Lucas No. L-09-1240, 2010-Ohio-1358 (“Syroka”), she asserts that “[a] party cannot
act pending appeal.” And Coleman asserts that upon our dismissal of the present appeal,
Stroup will have to refile her notice of voluntary dismissal to terminate the case in the trial
court, and Coleman may file a notice of appeal at that time.
A. Validity of the Notice of Voluntary Dismissal
{¶15} The Supreme Court of Ohio has “ ‘consistently held that once an appeal is
perfected, the trial court is divested of jurisdiction over matters that are inconsistent with
the reviewing court’s jurisdiction to reverse, modify, or affirm the judgment.’ ” State ex
rel. Bohlen v. Halliday, 164 Ohio St.3d 121, 2021-Ohio-194, 172 N.E.3d 114, ¶ 25, quoting
State ex rel. Rock v. School Emps. Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957,
772 N.E.2d 1197, ¶ 8. “Thus, the timely filing of a notice of appeal generally precludes a
trial court from taking further action on claims that are affected by the appeal.” Id. “After
an appeal is perfected, any order issued in the trial court which is inconsistent with the
appellate court’s jurisdiction is a nullity.” Doe v. Dayton Bd. of Edn., 2d Dist. Montgomery
No. 28487, 2020-Ohio-5355, ¶ 7. This is the case even if the appellate court ultimately
dismisses the appeal for lack of a final appealable order. Id.{¶16} Civ.R. 41(A)(1)(a) provides that “a plaintiff, without order of court, may
dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice of
dismissal at any time before the commencement of trial unless a counterclaim which
Pickaway App. No. 21CA17 8
cannot remain pending for independent adjudication by the court has been served by that
defendant[.]” Civ. R. 41(C) states that the provisions of Civ.R. 41 “apply to the dismissal
of any counterclaim” and that “[a] voluntary dismissal by the claimant alone pursuant to
division (A)(1) of this rule shall be made before the commencement of trial.” If a party
voluntarily dismisses all its claims against another party, the trial court is divested of
jurisdiction over those claims, and the action against the defending party is treated as if it
had never been commenced. See State ex. rel. Fifth Third Mtge. Co. v. Russo, 129 Ohio
St.3d 250, 2011-Ohio-3177, 951 N.E.2d 414, ¶ 17 (“Russo”). “The notice of voluntary
dismissal is self-executing and completely terminates the possibility of further action on
the merits of the case upon its mere filing, without the necessity of court intervention.” Id.Although a notice of voluntary dismissal dissolves interlocutory decisions made with
respect to the dismissed claims, it “does not operate to nullify a final order.” Crown
Chrysler Jeep, Inc. v. Boulware, 10th Dist. Franklin No. 15AP-162, 2015-Ohio-5084, ¶
30-31.
{¶17} Stroup had the right to file her notice of voluntary dismissal during the
pendency of this appeal. The notice complied with Civ.R. 41(A)(1)(a) and (C) because it
encompassed all counterclaims Stroup asserted against Coleman, and Stroup filed the
notice before the commencement of trial. The notice of voluntary dismissal did not
constitute an improper attempt to nullify a final order of the trial court as the court had not
issued one. Moreover, the notice of voluntary dismissal was not inconsistent with our
jurisdiction to reverse, modify, or affirm the orders from which Coleman appealed. The
voluntary dismissal of the counterclaims did not interfere with our ability to adjudicate this
appeal from the orders that dismissed Coleman’s claims. See generally Doe at ¶ 3-4, 8
Pickaway App. No. 21CA17 9
(plaintiffs had “absolute right to file” Civ.R. 41(A)(1)(a) dismissal of their claims against
one defendant during the pendency of appeal, and “the dismissal did not, in any fashion,”
interfere with the appellate court’s ability to adjudicate the appellate issues between the
plaintiffs and the other defendants). Therefore, the notice of voluntary dismissal is valid.
{¶18} Brown and Syroka do not support the proposition that Stroup’s notice of
voluntary dismissal is a nullity. In Brown, the appellants filed notices of appeal from a
summary judgment decision which “contemplated further action * * * which would affect
the trial court’s anticipated final decision in the case.” Brown, 2d Dist. Montgomery Nos.
26774, 26775, 2015-Ohio-4289, at ¶ 1-2. After the appellate court ordered the appellants
to show cause as to why the appeals should not be dismissed for lack of jurisdiction, the
trial court issued an order which appeared intended to be the final judgment in the case.
Id. at ¶ 2. The appellate court held that the trial court lacked jurisdiction to enter that order
because the pending appeal affected claims which were the subject of the order;
therefore, the order did not make the earlier interlocutory summary judgment decision
final. Id. at ¶ 8-9. Brown did not involve a Civ.R. 41(A)(1)(a) notice of voluntary dismissal
and does not support the proposition that a party can never file a notice of voluntary
dismissal during the pendency of an appeal.
{¶19} In Syroka, the plaintiff filed a complaint for cognovit judgment, and the trial
court entered judgment on the cognovit note in the plaintiff’s favor. Syroka, 6th Dist.
Lucas No. L-09-1240, 2010-Ohio-1358, at ¶ 2. The defendants filed a notice of appeal
from that judgment. Id. Subsequently, the plaintiff filed a notice of voluntary dismissal in
the trial court and argued that as a result of the filing, the appellate court lacked jurisdiction
to further hear the defendants’ appeal. Id. at ¶ 3. The appellate court found that the
Pickaway App. No. 21CA17 10
notice of voluntary dismissal was “a nullity” because it “clearly relates to an aspect of the
case on appeal,” and “the trial court was divested of jurisdiction” at the time the plaintiff
filed the notice. Id. at ¶ 6.
{¶20} This case is factually distinguishable from Syroka. In Syroka, there was a
single claim which the plaintiff tried to voluntarily dismiss after the trial court had issued a
final order resolving the claim and after the claim had become the subject of an appeal.
“Sykora stands for the proposition that a notice of appeal filed from the final judgment
entered on the merits precludes the plaintiff from filing a voluntary dismissal of the
underlying claims.” (Emphasis sic.) Rock House Fitness Inc. v. Himes, 2021-Ohio-245,
167 N.E.3d 499, ¶ 15 (11th Dist.). As previously explained, this case involves multiple
parties and claims, the trial court did not issue a final judgment, the dismissed
counterclaims are not the subject of this appeal, and the voluntary dismissal did not
interfere with our ability to adjudicate this appeal from the orders dismissing Coleman’s
claims.
B. Impact of Voluntary Dismissal on Prior Interlocutory Orders
{¶21} Next, we must determine what impact the voluntary dismissal of Stroup’s
counterclaims had on the finality of the prior interlocutory orders dismissing Coleman’s
claims. As previously explained, if a party voluntarily dismisses all its claims against
another party, the trial court is divested of jurisdiction over those claims, and the action
against the defending party is treated as if it had never been commenced. See Russo,
129 Ohio St.3d 250, 2011-Ohio-3177, 951 N.E.2d 414, ¶ 17. “The notice of voluntary
dismissal is self-executing and completely terminates the possibility of further action on
the merits of the case upon its mere filing, without the necessity of court intervention.” Id.Pickaway App. No. 21CA17 11
Therefore, when Stroup filed her notice of voluntary dismissal in accordance with Civ.R.
41(A)(1)(a) and (C), the notice automatically terminated the possibility of further action on
the merits of her counterclaims. Once Stroup filed the notice, all claims against all parties
were then resolved, so the case in the trial court automatically terminated, and the trial
court’s prior interlocutory orders dismissing Coleman’s claims became final. See Robirds
v. Stidham, 4th Dist. Scioto No. 16CA3749, 2016-Ohio-5081, ¶ 5, 8, fn. 1 (once parties
filed Civ.R. 41(A)(1)(a) notice of voluntary dismissal of cross-claims, the case
automatically terminated, and the trial court’s prior interlocutory orders became final).
C. Premature Notice of Appeal and App.R. 4(C)
{¶22} App.R. 4(A)(2) states: “Subject to the provisions of App.R. 4(A)(3), a party
who wishes to appeal from an order that is not final upon its entry but subsequently
becomes final—such as an order that merges into a final order entered by the clerk or
that becomes final upon dismissal of the action—shall file the notice of appeal required
by App.R. 3 within 30 days of the date on which the order becomes final.” In this case,
Coleman filed her notice of appeal from the trial court’s orders dismissing her claims
before they became final.
{¶23} “App.R. 4(C) sometimes secures appellate jurisdiction over premature
notices of appeal,” Deer Park Roofing, Inc. v. Oppt, 1st Dist. Hamilton No. C-210471,
2022-Ohio-1469, ¶ 6, but the rule does not apply in this case. App.R. 4(C) states: “A
notice of appeal filed after the announcement of a decision, order, or sentence but before
entry of the judgment or order that begins the running of the appeal time period is treated
as filed immediately after the entry.” Even if we were to find that Coleman filed her notice
of appeal “after the announcement of a decision, order, or sentence,” she did not file it
Pickaway App. No. 21CA17 12
“before entry of the judgment or order that begins the running of the appeal time period.”
The trial court never entered a final judgment or order that began the running of the appeal
time period in this case. Rather, after Coleman filed a notice of appeal from the trial
court’s interlocutory orders, another party filed a notice of voluntary dismissal which made
the prior orders final. Nothing in the plain language of App.R. 4(C) permits us to treat a
premature notice of appeal as filed immediately after the filing of a notice of voluntary
dismissal, which is a self-executing document filed by a party, not a “judgment or order”
entered by the trial court.
{¶24} Coleman’s reliance on Craig and Robinson is misplaced. In Craig, the
defendant filed an appeal from an interlocutory judgment of conviction on two counts of
an indictment, the appellate court dismissed for lack of a final appealable order, and the
defendant filed a discretionary appeal in the Supreme Court of Ohio. Craig, 159 Ohio
St.3d 398, 2020-Ohio-455, 151 N.E.3d 574, at ¶ 3-4, 6, 21. Subsequently, the trial court
found the defendant incompetent to stand trial on the remaining count of the indictment
which the jury had hung on, making the interlocutory convictions final. Id. at ¶ 3, 5, 27.
Even though the defendant did not file a notice of appeal within 30 days of when he was
first adjudged incompetent and instead filed it “months earlier,” the Supreme Court of
Ohio determined that “[u]nder the limited and unique circumstances presented” the
“notice of appeal should be viewed as a premature notice of appeal under App.R. 4(C)”
and “as having been filed immediately after” the incompetency adjudication. Id. at ¶ 27.
{¶25} In Robinson, the trial court entered a judgment on a jury verdict, and the
plaintiff filed a notice of appeal from that judgment before the trial court resolved the
plaintiff’s Civ.R. 59(A) motion for a new trial. Robinson, 4th Dist. Jackson No. 11CA4,
Pickaway App. No. 21CA17 13
2012-Ohio-1510, at ¶ 9-13. We held that the motion tolled the time to appeal under
App.R. 4, and no final order existed until the trial court resolved the motion, which
occurred after the filing of the notice of appeal. Id. at ¶ 11-13. However, we held that the
plaintiff did not need to file a notice appeal from the entry denying the motion for new trial
because the motion rendered the notice of appeal from the judgment on the verdict
premature, and “[a] premature [n]otice of appeal is treated as being filed immediately after
a final appealable order.” Id. at ¶ 13, citing App.R. 4(C).2 Craig and Robinson are
inapposite as neither involved an appeal from an order which became final after the notice
of appeal was filed by virtue of the filing of a notice of voluntary dismissal.
D. Resolution of Jurisdictional Issue
{¶26} Although the decision and entry granting MCCN and MCHS summary
judgment on the breach of contract claim against them states that it is “a final appealable
order,” “ ‘appellate courts are not bound by a trial court’s determination or statement that
a judgment constitutes a final appealable order.’ ” Chilli Assocs. Ltd. Partnership v. Denti
Restaurants Inc., 4th Dist. Ross No. 21CA3743, 2022-Ohio-848, ¶ 27, quoting In re Estate
of Adkins, 4th Dist. Lawrence No. 16CA22, 2016-Ohio-5602, ¶ 5. [R. 84] When Coleman
2 We observe that App.R. 4(B)(2) currently states that “[i]f a party files a notice of appeal from an otherwise
final judgment but before the trial court has resolved” a motion for new trial under Civ.R. 59
then the court of appeals, upon suggestion of any of the parties, shall remand the matter
to the trial court to resolve the post-judgment filings in question and shall stay appellate
proceedings until the trial court has done so. After the trial court has ruled on the post-
judgment filing on remand, any party who wishes to appeal from the trial court’s orders or
judgments on remand shall do so in the following manner: (i) by moving to amend a
previously filed notice of appeal or cross-appeal under App.R. 3(F), for which leave shall
be granted if sought within thirty days of the entry of the last of the trial court's judgments
or orders on remand and if sought after thirty days of the entry, the motion may be granted
at the discretion of the appellate court; or (ii) by filing a new notice of appeal in the trial
court in accordance with App.R. 3 and 4(A). In the latter case, any new appeal shall be
consolidated with the original appeal under App.R. 3(B).
Pickaway App. No. 21CA17 14
filed her notice of appeal, there was no final appealable order for us to review because
none of the entries resolved Stroup’s counterclaims against Coleman or certified that
there was “no just reason for delay” in accordance with Civ.R. 54(B). Although the entries
became final after Coleman filed her notice of appeal by virtue of Stroup filing a Civ.R.
41(A)(1)(a) notice of voluntary dismissal of the counterclaims, and App.R. 4(C)
sometimes secures appellate jurisdiction over premature notices of appeal, the rule does
not apply in this case. Accordingly, we lack jurisdiction to consider this appeal and must
dismiss it.
E. Timeliness of Future Appeal
{¶27} Finally, we address Coleman’s suggestion that if we find App.R. 4(C) does
not apply, which we have concluded it does not, she did not lose her opportunity to appeal
by failing to file a notice of appeal within 30 days of the filing of the notice of voluntary
dismissal. Again, App.R. 4(A)(2) states: “Subject to the provisions of App.R. 4(A)(3), a
party who wishes to appeal from an order that is not final upon its entry but subsequently
becomes final—such as an order that merges into a final order entered by the clerk or
that becomes final upon dismissal of the action—shall file the notice of appeal required
by App.R. 3 within 30 days of the date on which the order becomes final.” Coleman
suggests the 30-day provision does not apply to her for two reasons. First, she claims
the notice of voluntary dismissal did not comport with due process because it did not state
that it was a “final appealable order” and was not served by the clerk. Second, she claims
that App.R. 4(A)(3) is tolling the time to appeal because the clerk never served her with
the notice of the voluntary dismissal—Stroup’s counsel did.
Pickaway App. No. 21CA17 15
{¶28} Coleman essentially asks this court to conclude that if she files a new
appeal after we dismiss the present one, that future appeal will be timely and we will have
jurisdiction to consider it. This issue is not ripe for our review as it is contingent on an
event which may never occur, so we will not address it now. See generally State ex rel.
Quinn v. Delaware Cty. Bd. of Elections, 152 Ohio St.3d 568, 2018-Ohio-966, 99 N.E.3d
362, ¶ 37, quoting State ex rel. Jones v. Husted, 149 Ohio St.3d 110, 2016-Ohio-5752,
73 N.E.3d 463, ¶ 21 (“To be justiciable, a claim must be ripe for review, and a claim is not
ripe ‘if it rests on contingent events that may never occur at all’ ”). If Coleman files a new
notice of appeal after we dismiss the present appeal, we can assess the timeliness of that
appeal and our jurisdiction to consider it at that time.
F. Conclusion
{¶29} For the foregoing reasons, we lack jurisdiction to consider the merits of the
appeal and dismiss it.
APPEAL DISMISSED.
Pickaway App. No. 21CA17 16
JUDGMENT ENTRY
It is ordered that the APPEAL IS DISMISSED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway
County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.