Lindsey v. Lindsey

[Cite as Lindsey v. Lindsey, 2015-Ohio-3846.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Steven Lindsey, :
Plaintiff-Appellant, :
No. 15AP-146
v. : (C.P.C. No. 14DR-2542)
Danielle Lindsey, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on September 22, 2015
Steven Lindsey, pro se.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
HORTON, J.
{¶ 1} Plaintiff-appellant, Steven Lindsey, appeals from a judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, dismissing his complaint
for divorce without prejudice. Plaintiff presents the following, sole assignment of error for
our review:
TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DISMISSING COMPLAINT FOR DIVORCE WITHOUT
CONSIDERING OTHER OPTIONS, CIV.R. 31 DISPOSITION
UPON WRITTEN QUESTIONS TO SELF.
Because this court lacks jurisdiction, we dismiss the action.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} Plaintiff and defendant-appellee, Danielle Lindsey, were married on
October 19, 2010; they have one minor child in common. Plaintiff filed the instant
complaint for divorce on July 15, 2014. Plaintiff is imprisoned at the Noble Correctional
Institution ("NCI"); he proceeded pro se in the court below.
No. 15AP-146 2
{¶ 3} On January 2, 2015, plaintiff filed a notice with the court indicating that he
would be taking his own deposition before the house notary public at NCI. On January 7,
2015, plaintiff filed a document containing the answers to the questions he asked himself
on January 5, 2015. The questions and answers concerned the length of the parties'
marriage, the birth of their child, and the grounds for the divorce.
{¶ 4} The trial court scheduled the matter for a hearing on January 28, 2015. On
January 30, 2015, the court issued a dismissal entry noting that "Plaintiff, Steven Lindsey,
failed to appear for the uncontested hearing scheduled on 1/28/2015." (Dismissal Entry,
1.) As such, the court dismissed the action "without record or prejudice." (Dismissal
Entry, 1.)
II. LACK OF A FINAL APPEALABLE ORDER
{¶ 5} Ohio appellate courts have jurisdiction to review only final, appealable
orders of lower courts within their districts. Ohio Constitution, Article IV, Section
3(B)(2); R.C. 2501.02. If an order is not a final, appealable order, the appellate court
lacks jurisdiction and the appeal must be dismissed. Prod. Credit Assn. v. Hedges, 87
Ohio App. 3d 207 (4th Dist.1993). Appellate courts have the duty to sua sponte examine
any deficiencies in jurisdiction. Price v. Jillisky, 10th Dist. No. 03AP-801, 2004-Ohio-
1221.
{¶ 6} When determining whether a judgment or order is final and appealable, an
appellate court engages in a two-step analysis. First, the court must determine if the
order is final within the requirements of R.C. 2505.02. Second, if the order satisfies R.C.
2505.02, the court must determine whether Civ.R. 54(B) applies and, if so, whether the
order contains a certification that there is no just reason for delay. Gen. Acc. Ins. Co. v.
Ins. Co. of N. Am., 44 Ohio St. 3d 17, 21 (1989). A trial court's order is final and
appealable only if it satisfies the requirements of R.C. 2505.02 and, if applicable, Civ.R.
54(B). Denham v. New Carlisle, 86 Ohio St. 3d 594, 596 (1999), citing Chef Italiano
Corp. v. Kent State Univ., 44 Ohio St. 3d 86, 88 (1989).
{¶ 7} R.C. 2505.02(B) defines a final order as follows:
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:
No. 15AP-146 3
(1)An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
(2)An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
(3)An order that vacates or sets aside a judgment or grants a
new trial;
(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.
{¶ 8} Civ.R. 54(B) provides that "[w]hen 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." See Chef Italiano at
syllabus; State ex rel. Scruggs v. Sadler, 97 Ohio St. 3d 78, 2002-Ohio-5315, ¶ 5-7. Civ.R.
54(B) does not alter the requirement that an order must be final before it is appealable.
Gen. Acc. Ins. Co. at 21, citing Douthitt v. Garrison, 3 Ohio App. 3d 254, 255 (9th
Dist.1981).
{¶ 9} "Generally, a dismissal without prejudice constitutes 'an adjudication
otherwise than on the merits' with no res judicata bar to refiling the suit." Johnson v.
H&M Auto Serv., 10th Dist No. 07AP-123, 2007-Ohio-5794, ¶ 7, quoting Thomas v.
Freeman, 79 Ohio St. 3d 221, 225 (1997), fn. 2. This is because a trial court's dismissal
without prejudice "places the parties in the same position they were in before they filed
the action." Id. Thus, "a dismissal without prejudice is not a final appealable order, so long
as a party may refile or amend a complaint." Id. See also Hattie v. Garn, 9th Dist. No.
98CA007208 (Dec. 29, 1999) (noting that "[a] dismissal without prejudice is not a final
No. 15AP-146 4
determination of the rights of the parties and does not constitute a judgment or final
order when refiling or amending of the complaint is possible").
{¶ 10} The decision to dismiss a complaint for failure to prosecute is within the
sound discretion of the trial court, and an appellate court's review of such a dismissal is
confined solely to the question of whether the trial court abused its discretion.
Pembaur v. Leis, 1 Ohio St. 3d 89, 91 (1982). "Where an inmate who is incarcerated and
unrepresented by counsel fails to appear for a hearing, a trial court does not abuse its
discretion in dismissing a case without prejudice." Jones v. Roberts, 10th Dist. No. 14AP-
151, 2014-Ohio-2798, ¶ 8, citing Laguta v. Serieko, 48 Ohio App. 3d 266, 267 (9th
Dist.1988). See also Tolliver v. Liberty Mut. Group, 10th Dist. No. 04AP-226, 2004-Ohio-
6355, ¶ 6 (noting that "[p]risoners who bring civil actions have no constitutional right to
be personally present at any stage of the judicial proceedings"). Accordingly, we find no
abuse of discretion in the court's dismissal, given that the dismissal was without
prejudice, and plaintiff has the ability to refile the case.
{¶ 11} We are cognizant that "civil actions filed by pro se prisoners provide
peculiar problems to our already overburdened trial courts" and that the federal courts
have urged "trial courts to be 'imaginative and innovative' in dealing with such cases."
Laguta at 267, quoting Poole v. Lambert, 819 F.2d 1025 (11th Cir.1987). See also Laguta
at 267 (suggesting "alternatives to dismissal" when a plaintiff is unrepresented and
incarcerated, "including a bench trial in the prison, trial by depositions, appointment of
pro bono counsel to assist the plaintiff, postponement of proceeding if the plaintiff's
release is imminent, or dismissal without prejudice leaving open the possibility of the
plaintiff's refiling his case at a later date"). However, as there is nothing to prevent
plaintiff from successfully refiling the action, the trial court's dismissal of the action
without prejudice is not a final appealable order. As such, this court is without jurisdiction
to address plaintiff's assignment of error.
{¶ 12} Based on the foregoing, plaintiff's appeal is dismissed for lack of a final
appealable order.
Appeal dismissed.
TYACK and KLATT, JJ., concur.
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