[Cite as Smiley v. Prison Official, Inc., 2014-Ohio-1100.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ROSS COUNTY

TERRANCE SMILEY,                                     :       Case No. 13CA3408

        Plaintiff-Appellant,                         :

        v.                                           :       DECISION AND
                                                             JUDGMENT ENTRY
PRISON OFFICIAL, INC.,                               :

        Defendant-Appellee.                          :       RELEASED: 3/18/14

                                              APPEARANCES:

Terrance Smiley, Chillicothe, Ohio, pro se appellant.

Harsha, J.
        {¶1}     Terrance Smiley, an inmate at Chillicothe Correctional Institution, appeals

from the trial court’s entry dismissing without prejudice his small claims complaint for

breach of contract. Because the trial court’s entry is not a final, appealable order, we

lack jurisdiction to address the merits of Smiley’s appeal and must dismiss it.

                                                  I. FACTS

        {¶2}     In January 2013, Smiley sent appellee, Prison Official, Inc, (“Prison

Official”) $51.95 for an advertised list of “50 real names & addresses and photos of

authentic female penpals.” After he received the requested list, Smiley wrote letters to

about half of the names on the list, but many of his letters were returned to him stamped

“attempted-not known unable to forward.” Smiley complained to the company and

requested a refund, but his letters went unanswered.

        {¶3}     In July 2013, Smiley filed a small claims complaint for breach of contract

against Prison Official in the Chillicothe Municipal Court. The trial court issued notices
Ross App. No. 13CA3408                                                                        2


of a trial to the parties, and when Smiley failed to appear, the court magistrate

recommended dismissing the case without prejudice for failure to prosecute. Instead of

filing objections, Smiley filed a “motion to reconsider” in which he claimed that the clerk

of the court had not given him notice whether service on Prison Official had been

completed and that because he was incarcerated, he should have been given the

opportunity to make an alternative appearance through telephone or video.

       {¶4}   On August 28, 2013, the trial court issued an entry treating Smiley’s

motion to reconsider as an objection and overruled it. The trial court adopted the

magistrate’s decision and dismissed the case without prejudice for failure to prosecute.

       {¶5}   This appeal followed.

                              II. ASSIGNMENT OF ERROR

       {¶6}   Smiley assigns the following error for our review:

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISMISSED
       APPELLANT’S SMALL CLAIMS COMPLAINT FOR FAILURE TO
       PROSECUTE.

                                III. LAW AND ANALYSIS

                               No Final, Appealable Order

       {¶7}   In his sole assignment of error, Smiley asserts that the trial court abused

its discretion in dismissing his breach-of-contract case for failure to prosecute. Before

addressing the merits of the assigned error, we must determine whether this appeal is

properly before us. Although the parties do not suggest that this court lacks jurisdiction,

“litigants cannot vest a court with subject-matter jurisdiction by agreement”; subject-

matter jurisdiction is properly raised by an appellate court sua sponte. See Cheap

Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d
Ross App. No. 13CA3408                                                                          3

601, ¶ 22; State ex rel. Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d

450, ¶ 13.

       {¶8}    Courts of appeals 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). “R.C. 2505.03(A) limits the appellate jurisdiction of courts of appeals to the

review of final orders, judgments, or decrees.” See State ex rel. Bd. of State Teachers

Retirement Sys. of Ohio v. Davis, 113 Ohio St.3d 410, 2007-Ohio-2205, 865 N.E.2d

1289, ¶ 44. R.C. 2505.02(B) defines final orders, and under the part pertinent here, an

order is final if it “affects a substantial right in an action that in effect determines the

action and prevents a judgment[.]” R.C. 2505.02(B)(1). A “substantial right” is defined

as “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).

       {¶9}    “Ordinarily, a dismissal ‘other than on the merits’ does not prevent a party

from refiling and, therefore, ordinarily, such a dismissal is not a final, appealable order.”

Natl. City Commercial Capital Corp. v. AAAA At Your Service, Inc., 114 Ohio St.3d 82,

2007-Ohio-2942, 868 N.E.2d 663, ¶ 8. Smiley’s action was “dismissed without

prejudice, which, by rule, is not a final, appealable order.” State ex rel. DeDonno v.

Mason, 128 Ohio St.3d 412, 2011-Ohio-1445, 945 N.E.2d 511, ¶ 2, citing Civ.R.

41(B)(3). A dismissal without prejudice divests the court of jurisdiction over the case,

and the action is treated as if it had never been instituted, which means that the action

neither affects a substantial right nor determines the action. See generally Dill v.
Ross App. No. 13CA3408                                                                                 4

Athens, 4th Dist. Athens No. 12CA30, 2013-Ohio-5888, ¶ 8-9, and cases cited therein;

see also State ex rel. Fifth Third Mtge. Co. v. Russo, 129 Ohio St.3d 250, 2011-Ohio-

3177, 951 N.E.2d 414, ¶ 17 (dismissal without prejudice terminates further action on the

merits).

        {¶10} More specifically, courts have held that if a plaintiff can refile a suit, an

involuntary dismissal of a case without prejudice for failure to prosecute is not a final,

appealable order. See Isreal v. G-Core Automotive Corp., 10th Dist. Franklin No. 13AP-

201, 2013-Ohio-4461, ¶ 5-6; Davis v. Paige, 5th Dist. Stark No. 2007 CA 00248, 2008-

Ohio-6415, ¶ 41; Ebbets Partners, Ltd. v. Day, 171 Ohio App.3d 20, 2007-Ohio-1667,

869 N.E.2d 110, ¶ 14 (2d Dist.). Here, there is no evidence or argument that any

applicable statute of limitations has expired so as to bar Smiley from refiling his breach-

of-contract action. See R.C. 1302.98(A) (four-year statute of limitations for breach of

contract of sale); R.C. 2305.06 (general eight-year statute of limitations for breach of

written contract).

        {¶11} Smiley argues that where, as here, the plaintiff is unrepresented by

counsel and incarcerated, the trial court should pursue alternatives to dismissal for want

of prosecution when the risks and expense of transporting the prisoner to court are

prohibitive, e.g., bench trial in prison, trial by depositions, appointment of counsel to

assist the plaintiff, postponement of the proceeding if the plaintiff’s release is imminent,

or dismissal without prejudice to permit refiling at a later date. See Laguta v. Serieko,

48 Ohio App.3d 266, 267, 549 N.E2d 216 (9th Dist.1988); Hughley v. Cintron, 8th Dist.

Cuyahoga No. 93145, 2009-Ohio-5839, ¶ 12.1 The two primary cases cited by Smiley


1
 We note that the trial court here, by deciding to dismiss the case without prejudice, followed this
precedent.
Ross App. No. 13CA3408                                                                     5

on appeal for this proposition, Snyder v. Belmont Natl. Bank, 7th Dist. Belmont No. 09

BE 9, 2010-Ohio-1089, and Williams v. RPA Development Corp., 10th Dist. Franklin No.

07AP-881, 2008-Ohio-2695, however, do not vest this court with jurisdiction over the

trial court’s dismissal without prejudice of Smiley’s case here. Both Snyder and

Williams are distinguishable because they involved appeals from dismissals with

prejudice of cases for failure to prosecute, i.e., they involve appeals from orders

affecting a substantial right that determines the action.

       {¶12} Therefore, the trial court’s entry is not a final, appealable order, and we

lack jurisdiction to consider the merits of Smiley’s appeal.

                                    IV. CONCLUSION

       {¶13} Because we lack jurisdiction, we dismiss the appeal.

                                                                    APPEAL DISMISSED.
Ross App. No. 13CA3408                                                                     6


                                   JUDGMENT ENTRY


         It is ordered that the APPEAL IS DISMISSED and that 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
Chillicothe Municipal 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, P.J., & McFarland, J.: Concur in Judgment and Opinion.



                                   For the Court




                                   BY: ________________________________
                                       William H. Harsha, 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.
