[Cite as Bunting v. Weaver, 2019-Ohio-1628.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                       JUDGES:
PAUL EDWARD BUNTING                            :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                        Plaintiff-Appellant    :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2018 AP 09 0031
THOMAS A. WEAVER                               :
                                               :
                     Defendant-Appellee        :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Tuscarawas County
                                                   Court of Common Pleas, Case No.
                                                   2017 CV 04 0270


JUDGMENT:                                          Dismissed



DATE OF JUDGMENT ENTRY:                            April 29, 2019



APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

PAUL EDWARD BUNTING, PRO SE                        CHRISTOPHER DE LA CRUZ
921 North Main Street                              720 N. Wooster Avenue
Mansfield, OH 44903                                Dover, OH 44622
Tuscarawas County, Case No. 2018 AP 09 0031                                             2

Gwin, P.J.

      {¶1}   Appellant appeals the August 13, 2018 judgment entry of the Tuscarawas

County Court of Common Pleas denying his motion to vacate pursuant to Civil Rule 60(B).

                                  Facts & Procedural History

      {¶2}   On August 4, 2000, appellant Paul Bunting pled no contest to one count of

rape, in violation of R.C. 2907.02, and six counts of sexual battery, in violation of R.C.

2907.03. Appellant was sentenced to a total aggregate term of eighteen (18) years in

prison. Prior to his incarceration, appellant entered into an agreement with appellee

Thomas Weaver to store a “1977 Chevrolet half-ton custom 4-by-4 black-on-black panel

van” and a “1977 Honda CB350cc full-custom chopper motorcycle” on appellee’s farm

until appellant’s release from prison. The agreement was actually between appellant’s

mother and appellee.

      {¶3}   After appellant’s mother died, appellee sought the removal of the van from

his property with the assistance of Chief Deputy Orvis Campbell of the Tuscarawas

County Sheriff’s Department. The motorcycle had been destroyed in a fire a number of

years earlier. On May 13, 2013, Chief Deputy Campbell forwarded a letter to appellant

requesting the removal of the van by Monday, June 24, 2013, or the vehicle would be

towed. Because appellant did not make arrangements to have the vehicle moved, the

van was towed as abandoned and was disposed of in accordance with the abandoned

and junk motor vehicle laws of Ohio.

      {¶4}   On April 18, 2017, appellant filed a pro se complaint for conversion and

breach of agreement in the Tuscarawas County Court of Common Pleas. Over the years,

appellant has attempted to have appellee prosecuted for the theft of the vehicles, and has
Tuscarawas County, Case No. 2018 AP 09 0031                                              3


filed at least one other complaint against appellee for conversion and breach of contract

in the Belmont County Court of Common Pleas. In a correspondence dated May 31,

2017, to the Tuscarawas County Clerk of Court, Barbara Weaver Scott (“Scott”),

appellee’s power of attorney, explained appellee is her 88 year old uncle and is currently

a resident in a nursing home. Scott indicated a similar complaint filed by appellant in

Belmont County had been dismissed.

       {¶5}   On August 7, 2017, appellant filed a motion requesting the trial court strike

Scott’s May 31, 2017 communication. Scott sent a letter dated August 16, 2017, directly

to the trial court. Therein, she reiterated the information set forth in her May 31, 2017

correspondence to the Clerk of Court and noted appellee was in hospice care. In a

judgment entry on August 22, 2017, the trial court granted appellant’s motion to strike the

May 31, 2017 communication.

       {¶6}   Appellant filed a motion for default judgment on August 24, 2017. On

September 5, 2017, the trial court granted default judgment in favor of appellant on the

issue of liability only, and scheduled the matter for evidentiary hearing on the issue of

damages.

       {¶7}   Appellee filed a reply to appellant’s motion for default judgment and motion

for leave to plead on September 7, 2017. On September 11, 2017, the trial court granted

appellee’s request for an enlargement of time within which to answer, move, or otherwise

plead to the complaint. Appellee filed an answer on September 26, 2017 denying the

allegations in the complaint and setting forth affirmative defenses.

       {¶8}   Appellant filed a Civil Rule 60(B) motion for relief from judgment to vacate

the trial court’s September 11, 2017 judgment entry. On October 13, 2017, appellee filed
Tuscarawas County, Case No. 2018 AP 09 0031                                                4


a motion for relief from judgment pursuant to Civil Rules 55(B) and 60(B). Appellant filed

a number of briefs in opposition to appellee’s motion, including a motion to strike and a

motion for leave to reply to appellee’s answer. The trial court established a briefing

schedule. Appellee filed replies to appellant’s motions.

       {¶9}   On November, 22, 2017, the trial court granted appellee’s motion for relief

from judgment and vacated the September 5, 2017 judgment entry granting default in

favor of appellant. The trial court reinstated the previously scheduled status/review

hearing for July 11, 2018 and trial for September 11, 2018.

       {¶10} Appellant appealed the trial court’s November 22, 2017 judgment entry.

Appellant argued the trial court abused its discretion in granting appellee’s Civil Rule

60(B) motion for relief from the September 5, 2017 default judgment entered by the court.

In Bunting v. Weaver, 5th Dist. Tuscarawas No. 2017 AP 12 0035, 2018-Ohio-1465, we

dismissed the appeal, finding that because the trial court granted default judgment only

on the issue of liability, the judgment entry granting appellee’s motion for relief from that

interlocutory order was not a final appealable order.

       {¶11} On May 31, 2018, appellant filed a motion with the trial court, requesting the

trial court defer the status review hearing set for June 11, 2018, for one hundred and

eighty (180) days. Appellee filed a response on June 8, 2018, opposing appellant’s

request to continue for one hundred and eighty days.

       {¶12} On June 12, 2018, the trial court issued a judgment entry. The trial court

noted appellant did not appear for a status/review hearing on June 11, 2018. The trial

court scheduled a status/review hearing for July 16, 2018 to allow appellant to either

physically appear in the courtroom or to communicate by telephone. The judgment entry
Tuscarawas County, Case No. 2018 AP 09 0031                                               5


provides that if appellant fails to appear physically at the July 16, 2018 status hearing or

provide telephone communication, the complaint will be dismissed without prejudice to

refiling for failure to prosecute under Civil Rule 41(B)(1).

       {¶13} On June 29, 2018, appellant filed a pleading stating he could not appear in

person at the hearing due to ODRC restrictions, but provided a phone number at which

he could receive a call to participate in the status/review hearing on July 16, 2018.

       {¶14} At the hearing on July 16, 2018, the trial court noted the plan was for

appellant to appear via telephone because his residential placement did not allow him to

travel to the hearing. The trial court stated he was going to call appellant, and also

acknowledged it was 35 minutes past the time the trial court indicated it would call

because of another case not resolving on time. The trial court left a message at the

number provided by appellant. Subsequently, counsel for appellee stated he wanted to

depose appellant and doing pre-trial discovery would be virtually impossible under the

circumstances, due to appellant’s unavailability. Counsel for appellee requested the trial

court continue the trial, or, in the alternative, dismiss the complaint without prejudice to

refiling when appellant could physically appear.        The trial court declined to hear a

summary of appellee’s physical condition and stated he would entertain the matter when

the complaint was refiled.

       {¶15} On July 23, 2018, the trial court issued a judgment entry. The judgment

entry states that appellee was represented in the courtroom on July 16, 2018 by counsel

and appellant did not appear in the courtroom. Further, that when the court telephoned

appellant, who was granted permission to appear by telephone, no response was

available from either appellant or another person at the telephone number in question.
Tuscarawas County, Case No. 2018 AP 09 0031                                                  6


The trial court found, “notwithstanding the fact that the telephone communication to

[appellant] was thirty-five (35) minutes subsequent to the scheduled 11:15 a.m. time,

[appellant] appears not to be available to prosecute the complaint in this case, either pro

se or through legal counsel, and the scheduled jury trial of 9/11/2018 at 9:15 a.m. should

be canceled, the complaint in this case dismissed without prejudice to refiling under Civ.R.

41(B)(1) for failure to prosecute * * *.” The trial court thus dismissed appellant’s complaint,

without prejudice to refiling, under Civil Rule 41(B)(1). The trial court also waived all court

costs.

         {¶16} On July 25, 2018, appellant filed a “motion for a Civil Rule 60(1) and (5) for

excusable neglect to reinstate the case.” On August 13, 2018, the trial court overruled

appellant’s Civil Rule 60(B)(1) and (B)(5) motion. In the judgment entry, the trial court

specifically stated, “when Plaintiff is free of the Ohio Department of Rehabilitation and

Correction, he should refile his complaint in this case, if he so desires, and as the law

provides, and the matter can go forward to resolution with the Plaintiff available to

prosecute the complaint.”

         {¶17} Appellant appeals the August 13, 2018 judgment entry of the Tuscarawas

County Court of Common Pleas denying his motion to vacate pursuant to Civil Rule 60(B),

and assigns the following as error:

         {¶18} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING

APPELLANT’S CIVIL RULE 60(B)(1&5) MOTION WITHOUT FIRST AFFORDING

APPELLANT AN OPPORTUNITY TO PRESENT EVIDENCE IN SUPPORT OF THE

CIVIL RULE 60(B) MOTION FOR RELIEF FROM THE AUGUST 23, 2018 JUDGMENT

ENTRY DISMISSING THE COMPLAINT.
Tuscarawas County, Case No. 2018 AP 09 0031                                                   7


       {¶19} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY PREJUDICIALLY

ERRING TO APPELLANT WHEN IT INJUDICIOUSLY CONDUCTED THE JULY 16,

2018 AT 11:15 A.M. STATUS REVIEW HEARING IRRELEVANT TO THE ORIGINAL

CAUSE INTENDED FOR PECUNIARY DAMAGES PRIOR TO THE COURT’S

VACATUR OF APPELLANT’S DEFAULT JUDGMENT THEN RECONVENED FOR

ANOTHER STATUS REVIEW TO CONTINUE ON THE EVIDENTIARY FACTS OF

DISCOVERY INITIALLY SCHEDULED ON JUNE 11, 2018, AT 11:00 A.M. AND

ERRONEOUSLY MERGED FORWARD IN AN EX PARTE COMMUNICATION WITH

OPPOSING COUNSEL IN VIOLATION OF THE JUDGE’S DISCRETION AND DUE

PROCESS.”

                                                I. & II.

       {¶20} The first and second assignments of error are interrelated and shall be

considered together. In his first assignment of error, appellant argues the trial court

abused its discretion in failing to grant appellant relief from the trial court’s judgment entry

dismissing his complaint without prejudice for failure to prosecute pursuant to Civil Rule

41(B)(1). In his second assignment of error, appellant essentially contends the trial court

erred in dismissing his complaint pursuant to Civil Rule 41(B)(1) after belatedly calling

him during the status/review hearing.

       {¶21} In this case, we must determine whether the order under review is a final

appealable order. If an order is not final and appealable, then we have no jurisdiction to

review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins. Co. of N. America,

44 Ohio St.3d 17, 540 N.E.2d 266 (1989). In the event that the parties to the appeal do

not raise this jurisdictional issue, we may raise it sua sponte. See Chef Italiano Corp. v.
Tuscarawas County, Case No. 2018 AP 09 0031                                                8

Kent State University, 44 Ohio St.3d 86, 541 N.E.2d 64 (1989); Whitaker-Merrell Co. v.

Geupel Constr. Co., 29 Ohio St.2d 184, 280 N.E.2d 922 (1972).

       {¶22} Ohio law provides that appellate courts have jurisdiction to review only final

orders or judgments. See, generally, Section 3(B)(2), Article IV, Ohio Constitution; R.C.

2505.02. If an order is not final and appealable, then an appellate court has no jurisdiction

to review the matter and it must be dismissed. To be final and appealable, an order must

comply with R.C. 2505.02 and Civ.R. 54(B), if applicable.

       {¶23} R.C. 2505.02(B) defines final orders as follows:

       (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;

       (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.
Tuscarawas County, Case No. 2018 AP 09 0031                                                 9


       {¶24} Generally, where a cause is dismissed without prejudice and otherwise than

on the merits pursuant to Civil Rule 41(B)(1), the parties are left in the same position as

if the plaintiff had never brought the action. Central Mut. Ins. Co. v. Bradford-White, 35

Ohio App.3d 26, 519 N.E.2d 422 (6th Dist. 1987).            Therefore, a dismissal without

prejudice is not a final determination of the rights of the parties and does not constitute a

final order pursuant to R.C. 2505.02. Id.; see also Lantsberry v. Tilley Lamp Co., 27 Ohio

St.2d 303, 272 N.E.2d 127 (1971); Schindler v. Standard Oil Co., 165 Ohio St. 76, 133

N.E.2d 127 (1956).

       {¶25} This Court has previously held that a dismissal without prejudice pursuant

to Civil Rule 41(B)(1) for failure to prosecute is not a final appealable order. Kopina v.

Kopina, 5th Dist. Knox No. 13CA30, 2014-Ohio-287; Showe Mgmt. Corp. v. Adams, 5th

Dist. Licking No. 11 CA 124, 2012-Ohio-3214; Davis v. Paige, 5th Dist. Stark No. 2007-

CV-00248, 2008-Ohio-6415.

       {¶26} In this case, the trial court clearly stated the action was dismissed without

prejudice in its judgment entry and specifically informed appellant that when he was free

of the Ohio Department of Rehabilitation and Correction, he should refile his complaint if

he so desires. Therefore, since appellant has the ability to refile his claims within the time

allowed by the applicable law, the trial court’s dismissal without prejudice is not a final

appealable order. R.C. 2305.19. Further, because the trial court’s dismissal judgment

entry is a non-final order, the order declining to grant Civil Rule 60(B) relief cannot be a

final order. Davis v. Paige, 5th Dist. Stark No. 2007-CV-00248, 2008-Ohio-6415.
Tuscarawas County, Case No. 2018 AP 09 0031                                             10


      {¶27} Based on the foregoing analysis, this Court lacks jurisdiction to consider this

appeal.

      {¶28} The appeal in this matter is hereby dismissed.



By Gwin, P.J.,

Delaney, J., and

Wise, Earle E., J., concur
