[Cite as Jones v. Roberts, 2014-Ohio-2798.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


William R. Jones, II,                            :

                 Plaintiff-Appellant,            :
                                                                  No. 14AP-151
v.                                               :            (C.P.C. No. 13JU-12-17150)

Joanelle R. Roberts et al.,                      :        (ACCELERATED CALENDAR)

                 Defendants-Appellees.           :




                                         D E C I S I O N

                                      Rendered on June 26, 2014


                 William R. Jones, II, pro se.

                 Farlow & Associates, LLC, and Christopher L. Trolinger, for
                 appellee Jan Doe Roberts.

                  APPEAL from the Franklin County Court of Common Pleas,
                      Division of Domestic Relations, Juvenile Branch.

BROWN, J.
        {¶ 1} William R. Jones, II, plaintiff-appellant, appeals from the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch, in which the court dismissed William's complaint.
        {¶ 2} William and Joanelle R. Roberts, defendant-appellee, were in a relationship
and had a child together in July 2009. On December 26, 2013, William filed a pro se
complaint for allocation of parental rights and responsibilities against Joanelle and her
mother, Jan Doe Roberts. In his complaint, William indicated that his parents should also
be granted visitation with the child.
No. 14AP-151                                                                                2


       {¶ 3} A hearing before the magistrate was held February 10, 2014. Joanelle and
her counsel appeared; however, William did not appear. Apparently, William was
incarcerated at the time of the filing of his complaint and the February 10, 2014 hearing.
On February 11, 2014, the magistrate issued a decision dismissing the complaint, without
prejudice, for failure to prosecute the case due to William's failure to appear at the
hearing. The trial court adopted the magistrate's decision the same day. William did not
file objections to the magistrate's decision. William, pro se, appeals the judgment of the
trial court, asserting the following two assignments of error:
               [I.] THE COMMON PLEAS COURT ERRED AS A MATTER
               OF LAW WHEN ACCEPTING THE MAGISTRATE'S SUA
               SPONTE DISMISSAL OF MATTERS SET FOR A HEARING
               ON     FEBRUARY  10TH    2014,   WITHOUT  FIRST
               CONSIDERING RIGHT OF THE PARTIES APPEARING, IN
               SPITE OF APPELLANT'S INABILITY TO APPEAR.

               [II.] THE COMMON PLEAS COURT ERRED AS A MATTER
               OF LAW WHEN ACCEPTING THE MAGISTRATE'S SUA
               SPONTE DISMISSAL OF MATTERS WHICH CONCERNED
               PATERNAL GRANDPARENTS' RIGHT AND PRIVILDEGES
               PURSUANT TO O.R.C. 3109.051(D) AND O.R.C. 3109.12(A)
               (B) et seq., BEING PRESENT ON THE FEBRUARY 10TH
               2014 HEARING.

       {¶ 4} We address William's assignments of error together, as they both argue that
the trial court erred when it dismissed his complaint. William's argument is, generally,
that the magistrate had a duty to consider the merits of his motion to establish his
parental rights, privileges, obligations, and visitation for his parents. Although William
admits that he was not present at the February 10, 2014 hearing, he claims that his
parents were present.
       {¶ 5} We first note that William failed to file an objection to the magistrate's
decision. Civ.R. 53(D)(3)(b)(iv) and Juv.R. 40(D)(3)(b)(iv) provide that, except for a claim
of plain error, a party shall not assign as error on appeal the court's adoption of any
finding of fact or conclusion of law unless the party has objected to that finding. In other
words, the failure to raise a proper objection to the magistrate's decision in the trial court
waives all but plain error on appeal.
No. 14AP-151                                                                                3


       {¶ 6} We next note that this court does not have the transcript from the
February 10, 2014 hearing. Therefore, our review of the case is limited to a determination
of whether the trial court abused its discretion in adopting the magistrate's legal
conclusions. State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730
(1995) (where the objecting party fails to provide the trial court with the transcript of the
proceedings before the magistrate, the reviewing court is only permitted to determine if
the application of the law was proper or if it constituted an abuse of discretion).
       {¶ 7} We find neither the magistrate nor the trial court erred in dismissing
William's complaint for failing to appear at the hearing. 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). The term
"abuse of discretion" as it applies to a dismissal with prejudice for lack of prosecution
" 'implies an unreasonable, arbitrary or unconscionable attitude on the part of the court in
granting such motion.' " Jones v. Hartranft, 78 Ohio St.3d 368, 371 (1997), quoting
Pembaur at 91.
       {¶ 8} Here, William does not assert that the dismissal amounted to plain error.
Notwithstanding, we find neither plain error nor an abuse of discretion. 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. Laguta v.
Serieko, 48 Ohio App.3d 266, 267 (9th Dist.1988) (no abuse of discretion when trial court
dismissed unrepresented inmate's complaint without prejudice). By dismissing a case
without prejudice, the court leaves open the possibility of the inmate refiling his case at a
later date. Id. Here, the trial court's dismissal without prejudice was not plain error, given
it was without prejudice, which gave William the ability to refile his case. William also had
the option to secure counsel to attend the hearing on his behalf, but chose not to do so.
See Hughley v. Cintron, 8th Dist. No. 93145, 2009-Ohio-5839, ¶ 13 (no abuse of
discretion when trial court dismissed inmate's complaint when inmate could have
obtained counsel to attend hearings on his behalf).
       {¶ 9} Furthermore, although William asserts the trial court should have
continued forward with the merits of the case in his absence, the Supreme Court of Ohio
No. 14AP-151                                                                               4


has held that "[t]here is no authority in the Civil Rules for proceeding to a trial on the
merits of the plaintiff's claim in his absence." Allstate Ins. Co. v. Rule, 64 Ohio St.2d 67,
69 (1980). In such a circumstance, the Supreme Court explained, the court may only
dismiss the complaint for failure to prosecute or grant a continuance. Id. Here, there is
no evidence in the record that any party ever moved for a continuance. In addition,
although William claims his parents appeared at the hearing as his representatives,
among other legal shortcomings with this argument, the record before us contains no
evidence or indication that his parents were present. Therefore, this argument must be
rejected. Under the present circumstances, we find the trial court did not err when it
dismissed William's complaint without prejudice for failure to appear for a hearing.
Therefore, William's first and second assignments of error are overruled.
       {¶ 10} Accordingly, William's two assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch, is affirmed.
                                                                       Judgment affirmed.

                                TYACK and KLATT, JJ., concur.

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