[Cite as Miller v. Evans, 2015-Ohio-4570.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


ROBERT MILLER                                  :   JUDGES:
                                               :
                                               :   Hon. John W. Wise, P.J.
       Plaintiff-Appellant                     :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :   Case No. 2015CA00044
                                               :
NANCY EVANS                                    :
                                               :
                                               :
       Defendant-Appellee                      :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Domestic Relations
                                                   Division, Case No. 2014DR00566



JUDGMENT:                                          REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                            November 2, 2015




APPEARANCES:

For Plaintiff-Appellant:                           For Defendant-Appellee:

CRAIG T. CONLEY                                    WARNER MENDENHALL
604 Huntington Plaza                               190 N. Union St., Ste. 201
220 Market Ave. South                              Akron, OH 44304
Canton, OH 44702
Stark County, Case No. 2015CA00044                                                     2

Delaney, J.

       {¶1} Plaintiff-appellant Robert Miller ("Miller") appeals from the Judgment

Entries of the Stark County Court of Common Pleas, Family Court Division, dated

January 9, 2015 and February 18, 2015.               Defendant-appellee is Nancy Evans

("Evans").

                           FACTS AND PROCEDURAL HISTORY

       {¶1} This case is related to but not consolidated with Robert Miller v. Nancy

Evans, 5th Dist. Stark No. 2015CA00042. In that case, Evans is the appellant and

Miller the appellee. The two appeals arise from the same underlying case and raise

different but related assignments of error.        The facts and procedural histories are

therefore identical but we will address each appeal in a separate opinion. The parties

agree upon the following relevant facts and procedural history.

       {¶2} In August 2013, Miller executed a Power of Attorney giving his daughter,

attorney Bobbie L. Marsh, fiduciary power to transact business on his behalf.

       {¶3} On May 27, 2014, Miller filed a complaint for divorce against his wife,

Evans.1      Evans filed a counterclaim for divorce against Miller.2

       {¶4} In September 2014, Evans moved the trial court to determine the validity

of the Power of Attorney.

       {¶5} On October 22, 2014, Miller dismissed his complaint pursuant to Civ.R.

41(A)(1).3 On January 8, 2015, Evans voluntarily dismissed her counterclaim pursuant

to Civ.R. 41(A)(1).



1 Miller was represented by attorney Susan Pucci Sutton.
2 Evans was represented by attorney Arnold F. Glantz.
3 The dismissal was filed by attorney Craig Conley.
Stark County, Case No. 2015CA00044                                                      3


           {¶6} On January 9, 2015, the trial court entered a Judgment Entry stating in

pertinent part:

                 * * * *.

                 Findings of Fact:

                            Ms. Marsh was properly served by subpoena on December

                 4, 2014 and failed to appear. She demands witness fees paid in

                 advance. Mr. Glantz argues that Ms. Marsh is a party as she filed,

                 through alleged power of attorney, filed (sic) the initial complaint

                 that brought this matter to court. While Ms. Marsh's actions in this

                 case are found to be contrary to behavior expected of an attorney

                 in this state (sic).

                 Order:

                            The power of attorney was not valid when this case or the

                 domestic violence case were filed. Case number 2014DV00051 is

                 ordered sealed.         [Evans] moves to voluntarily dismiss her

                 counterclaim. Case number 2014DR00566 is also ordered sealed.

                 * * * *.

           {¶7} On January 20, 2015, attorney Marsh moved to strike the following

language from the court's Judgment Entry of January 9: "While Ms. Marsh's actions in

this case are found to be contrary to behavior expected of an attorney in this state

(sic)."4




4   Attorney Craig Conley filed the motion to strike on behalf of attorney Marsh.
Stark County, Case No. 2015CA00044                                                      4


       {¶8} On February 9, 2015, Evans moved for sanctions against Miller's counsel

pursuant to Civ.R. 11 and R.C. 2323.51 on the basis of the trial court's finding that the

Power of Attorney was not valid.5           Both attorneys responded with memoranda in

opposition.

       {¶9} On February 18, 2015, the trial court filed a Judgment Entry stating in

pertinent part:

              * * * *.

              Findings of Fact:

                         This case was closed on January 9, 2015 after the court

              found that the Power of Attorney was not valid and upon the

              dismissal of [Evans'] counterclaim for divorce. [Miller] previously

              dismissed his Complaint for divorce.

                         The Court was informed that there have been numerous

              filings since the closing of the case.            None of these filings

              appropriately opened a closed domestic relations case and

              therefore the court does not have jurisdiction to address same.

              Order:

                         All outstanding motions dismissed for lack of jurisdiction.

              * * * *.

       {¶10} In the instant appeal, Miller appeals from the trial court's judgment entries

of January 9 and February 18, 2015, arguing the trial court lacked jurisdiction to issue

both orders because the case was dismissed in its entirety as of January 8, 2015.


5The motion for sanctions was filed by attorney Warner Mendenhall on behalf of Evans
and was served upon attorneys Susan Pucci Sutton and Craig Conley.
Stark County, Case No. 2015CA00044                                                        5


       {¶11} In the related appeal, Evans appeals from the trial court's Judgment Entry

of February 18, 2015, arguing the motion for sanctions survived the dismissal and the

trial court should have held a hearing thereon.

       {¶12} Miller raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶13} "I. AS TO THE TRIAL COURT'S JANUARY 9, 2015 JUDGMENT ENTRY,

IT ERRED IN PROCEEDING TO HEAR, AND THEN TO ADJUDICATE, AFTER

PLAINTIFF'S/APPELLANT'S COMPLAINT FOR DIVORCE HAD ALREADY BEEN

VOLUNTARILY DISMISSED, DEFENDANT'S/APPELLEE'S PRE-DISMISSAL MOTION

TO DETERMINE THE VALIDITY OF THE POWER OF ATTORNEY USED TO FILE

THE SAME COMPLAINT."

       {¶14} "II. AS TO BOTH OF THE TRIAL COURT'S JANUARY 9, 2015 AND

FEBRUARY 18, 2015 JUDGMENT ENTRIES, IT ERRED IN CONTINUING TO

EXERCISE JURISDICTION AFTER THE ACTION BEFORE IT HAD ALREADY BEEN

VOLUNTARILY DISMISSED IN ITS ENTIRETY."



                                       ANALYSIS

                                          I., II.

       {¶15} Miller's two assignments of error are related and will be considered

together. Miller contends the trial court was without jurisdiction to enter its judgment

entries of January 9 and February 18, 2015.         Evans agrees but asserts the trial court
Stark County, Case No. 2015CA00044                                                        6


retained jurisdiction to rule on collateral matters including the motion for sanctions.6 We

agree the trial court had no jurisdiction to enter the judgment entries of January 9 and

February 18, 2015, and therefore reverse and vacate those judgment entries.

       {¶16} A plaintiff's notice of voluntary dismissal made pursuant to Civ.R. 41(A)(1)

is self-executing; it requires no court action and is effective on the date of filing.

Brogdon v. Sibley Murray, LLC, 5th Dist. Stark No. 2009 CA 139, 2010-Ohio-539, ¶ 9,

citing James v. Allstate Ins. Co., 8th Dist. Cuyahoga No. 75993, 2000 WL 284221

(March 16, 2000). Generally, where a case has been voluntarily dismissed under Civ.R.

41(A)(1), the trial court patently and unambiguously lacks jurisdiction to proceed. See

State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853 at ¶

22. A voluntary dismissal divests the trial court of jurisdiction to make any entry on the

merits thereafter. Frazee v. Ellis Bros., 113 Ohio App.3d 828, 830, 682 N.E.2d 676 (5th

Dist.1996).

       {¶17} Miller's dismissal of the complaint on October 22, 2014, followed by

Evans' voluntary dismissal of her counterclaim on January 8, 2015, divested the trial

court of jurisdiction to proceed. The findings entered in the January 9 and February 18,

2015 judgment entries are therefore dicta.

       {¶18} Miller's two assignments of error are sustained to the extent that the trial

court was without jurisdiction to enter the Judgment Entries of January 9 and February

18, 2015. Those entries are therefore reversed and vacated.            Consistent with our




6 In the related appeal, we found the trial court retained jurisdiction to decide the motion
for sanctions and is required to hold a hearing thereon only if the court determines, in its
discretion, the motion is of arguable merit. Robert Miller v. Nancy Evans, 5th Dist. Stark
No. 2015CA00042, ---Ohio---, at ¶ 20.
Stark County, Case No. 2015CA00044                                                   7


findings in the related appeal, however, this matter is remanded to the trial court for

consideration of Evans' motion for sanctions.



                                     CONCLUSION

       {¶19} Miller's two assignments of error are sustained, the judgment of the Stark

County Court of Common Pleas, Family Court Division is reversed and vacated, and

this matter is remanded for further proceedings consistent with this opinion.

By: Delaney, J. and

Wise, P.J.

Baldwin, J., concur.
