In re Guardianship of Basista

[Cite as In re Guardianship of Basista, 2015-Ohio-4831.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
GUARDIANSHIP OF NICOLE BASISTA : MEMORANDUM OPINION
:
CASE NO. 2015-G-0035
Civil Appeal from the Geauga County Court of Common Pleas, Probate Division.
Case No. 11 PG 000206.
Judgment: Appeal dismissed.
Suzanne M. Jambe, Baker & Hostetler, LLP, PNC Center, 1900 East Ninth Street,
Suite 3200, Cleveland, OH 44114-3482 (For Appellant Ronald Basista).
Sandra A. Dray, Sandra A. Dray Co., L.P.A., 1111 Mentor Avenue, Painesville, OH
44077 (For Appellee Marijana Glass).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Ronald Basista, appeals from two July 20, 2015 orders of the
Geauga County Court of Common Pleas, Probate Division, regarding the transfer of
guardianship of his daughter, Nicole Basista, an adult ward of the court. Based on the
following, we dismiss the instant appeal for lack of a final, appealable order.
{¶2} Nicole is the only child of Mr. Basista and appellee, Marijana Glass. Ms.
Glass is Nicole’s guardian. Nicole suffers from Noonan’s Syndrome.1 The parties have
engaged in extensive litigation concerning Mr. Basista’s attempts to establish visitation
with Nicole.
1. For a complete factual recitation, see Guardianship of Basista (Basista I), 11th Dist. Geauga No. 2013-
G-3140, 2014-Ohio-1349.
{¶3} On March 9, 2015, Ms. Glass petitioned the court to transfer guardianship
of Nicole to the Probate Court of Harris County, Texas. Three days later, on March 12,
2015, Mr. Basista filed an appeal with this court appealing the trial court’s granting of
Ms. Glass’ motion to dismiss his application to establish visitation with Nicole. See
Guardianship of Basista (Basista II), 11th Dist. Geauga No. 2015-G-0012, 2015-Ohio-
3730.
{¶4} While Basista II was pending before this court, the parties filed numerous
pleadings concerning Ms. Glass’ petition to transfer guardianship. A hearing was held
on the petition on May 26, 2015. Mr. Basista filed an opposition to the proposed
provisional order to transfer guardianship.
{¶5} In a July 20, 2015 order, the probate court found Mr. Basista’s opposition
to the provisional order to transfer guardianship not well taken. That same day, the
probate court issued a separate “Provisional Order to Transfer Guardianship”
(hereinafter Provisional Order). Appellant filed a timely notice of appeal from the July
20, 2015 judgments.
{¶6} Because Basista II was pending when the trial court entered its
Provisional Order, appellant filed a motion to stay, pursuant to App.R. 7(A). In his
motion, Mr. Basista maintained that the probate court’s Provisional Order would
interfere with this court’s jurisdiction to decide Basista II.
{¶7} In an August 26, 2015 judgment, this court granted a temporary stay to
maintain the status quo and present Ms. Glass with an opportunity to respond to Mr.
Basista’s motion. We stated that Ms. Glass’ response should address whether the trial
court had jurisdiction to enter the July 20, 2015 judgments when Basista II was pending.
2
{¶8} Ms. Glass filed a response and maintains that Mr. Basista’s motion to stay
is premature. She argues that the July 20, 2015 judgment is not a final order and does
not terminate the guardianship, as the probate court shall issue a final order when the
requirements of R.C. 2112.31(F)(1) and (2) are satisfied.
{¶9} An Ohio court of appeals only has jurisdiction to review final, appealable
orders. See Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 87 (1989). The
first step in certifying an appeal as final and appealable is determining whether the order
is “final” as defined by R.C. 2505.02. Wisintainer v. Elcen Power Strut Co., 67 Ohio
St.3d 352, 354 (1993).
{¶10} Pursuant to R.C. 2505.02(B), there are seven categories of a “final order,”
and if the judgment of the trial court satisfies any of them, it will be deemed a “final
order” and can be immediately appealed and reviewed by a court of appeals. R.C.
2505.02(B) states, in pertinent part:
(B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of the
following:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
***
(4) An order that grants or denies a provisional remedy and to
which both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor
of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
(Emphasis added.)
3
{¶11} Here, the trial court issued a Provisional Order, which states the following:
Upon * * * receipt of both a provisional order accepting the
proceeding from the Probate Court of Harris County, Texas, and
letters of appointment indicating Marijana Glass had been
appointed Guardian of the Person in that court for Nicole Basista,
this court shall issue a final order confirming the transfer and
terminating the guardianship of the person in this Court.
See R.C. 2112.31(F).
{¶12} The July 20, 2015 Provisional Order is not a final order. For R.C.
2505.02(B)(1) to apply to the appealed entry, it must affect a substantial right, determine
the action, and prevent further judgment. The order appealed does not fit into this
category. Furthermore, the Provisional Order fails to satisfy both prongs of R.C.
2505.02(B)(4): appellant is not foreclosed from appropriate relief in the future. Appellate
relief will be available upon appeal from the trial court’s “final order confirming the
transfer and terminating the guardianship.” See R.C. 2112.31(F).
{¶13} Accordingly, this appeal is dismissed for lack of a final, appealable order.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
4