[Cite as Zielinski-Barnwell v. Prewitt, 2014-Ohio-3761.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY

Jessy Zielinski-Barnwell                                   Court of Appeals No. WD-13-070

        Appellee                                           Trial Court No. 13DV076

v.

Andrew W. Prewitt                                          DECISION AND JUDGMENT

        Appellant                                          Decided: August 29, 2014

                                                  *****

        Andrew W. Prewitt, pro se.

                                                  *****

        YARBROUGH, P.J.

                                              I. Introduction

        {¶ 1} Appellant, Andrew Prewitt, appeals the judgment of the Wood County Court

of Common Pleas, Domestic Relations Division, denying his motion to dismiss for lack

of subject matter jurisdiction and his request for sanctions under Civ.R. 11.

                               A. Facts and Procedural Background

        {¶ 2} This appeal arises out of an action filed by appellee, Jessy Zielinski-

Barnwell, in which she sought a domestic violence civil protection order prohibiting
appellant from contacting her on the basis that she had been threatened by appellant.

Following an ex parte hearing, the trial court granted a temporary protection order and set

the matter for a full hearing. Before the hearing could be conducted, appellant filed a

motion for sanctions, alleging that appellee and her attorney filed a fraudulent affidavit to

obtain the temporary order. Subsequently, a full hearing was held on August 8, 2013.

       {¶ 3} At the hearing, appellee testified concerning appellant’s allegedly

threatening demeanor that took place on two separate occasions while she was attending

her daughter’s horseback riding lessons. Appellant is the father of the child and was also

in attendance. On the first occasion, the parties had a disagreement involving an

upcoming horseshow. Specifically, appellee was concerned that appellant was interfering

with her parenting time by asking her to bring their daughter to the horseshow. Appellee

testified that appellant raised his voice in a threatening manner, but her testimony was not

corroborated at the hearing. On the contrary, appellant, his mother, and another witness

testified that appellant did not raise his voice at this time.

       {¶ 4} On the second occasion, appellee was sitting in the back seat of her

automobile with her infant when appellant approached the vehicle and began looking

inside. As appellant was walking away from the vehicle, appellee opened the door and

asked him what he wanted. Once again, appellee testified that appellant raised his voice

in a threatening manner. Indeed, she proceeded to call the police, who arrived on the




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scene and remained until appellee was ready to leave. Appellee provided no

corroborating testimony to support her assertions that appellant raised his voice or

threatened her in any manner.

       {¶ 5} On August 16, 2013, the court issued its judgment entry denying appellee’s

petition. In its entry, the court found that appellee failed to prove that appellant engaged

in domestic violence. Later that day, appellant filed a motion to dismiss the matter for

lack of subject matter jurisdiction under Civ.R. 12(B)(1). In his motion, appellant argued

that the trial court was without jurisdiction insofar as appellee is a resident of Adrian,

Michigan.

       {¶ 6} On September 30, 2013, the trial court issued its order denying appellant’s

outstanding motions. With respect to appellant’s motion for sanctions, the court found

that appellee’s actions were not frivolous and did not constitute a sham or an abuse of

process. Concerning the motion to dismiss, the trial court found that its decision denying

appellee’s petition rendered the motion moot. Consequently, the trial court denied

appellant’s motions. Thereafter, appellant filed his timely notice of appeal.

                                 B. Assignments of Error

       {¶ 7} On appeal, appellant assigns the following errors for our review:

              1. THE TRIAL COURT ERRED AND ABUSED ITS

       DISCRETION BY NOT GRANTING AND SUBJECTING APPELLEE

       AND HER ATTORNEY OF RECORD TO CIVIL RULE 11

       SANCTIONS.




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              2. THE TRIAL COURT ERRED AND ABUSED ITS

       DISCRETION BY NOT GRANTING APPELLANT’S MOTION VOID

       AB INITIO DUE TO WRONG JURISDICTION.

                                     II. Analysis

       {¶ 8} In his first assignment of error, appellant argues that the trial court abused its

discretion when it denied his motion for sanctions under Civ.R. 11. We review the trial

court’s decision on a Civ.R. 11 motion for sanctions for an abuse of discretion. State ex

rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510, ¶ 18. An

abuse of discretion connotes that the trial court’s attitude was arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 9} Civ.R. 11 states, in relevant part:

              Every pleading, motion, or other document of a party represented by

       an attorney shall be signed by at least one attorney of record in the

       attorney’s individual name, whose address, attorney registration number,

       telephone number, facsimile number, if any, and business e-mail address, if

       any, shall be stated. * * * The signature of an attorney or pro se party

       constitutes a certificate by the attorney or party that the attorney or party

       has read the document; that to the best of the attorney’s or party’s

       knowledge, information, and belief there is good ground to support it; and

       that it is not interposed for delay. * * * For a willful violation of this rule,




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       an attorney or pro se party, upon motion of a party or upon the court’s own

       motion, may be subjected to appropriate action, including an award to the

       opposing party of expenses and reasonable attorney fees incurred in

       bringing any motion under this rule.

       {¶ 10} Here, appellant argues that appellee misstated the facts in her affidavit

supporting the temporary order. Appellant contends that the testimony provided at the

hearing directly contradicts appellee’s assertion that appellant approached her in a

threatening manner on several occasions. Moreover, he argues that the facts

affirmatively demonstrate that the child was not present during the verbal disagreements,

contrary to appellee’s statements. We note at the outset that Civ.R. 11 sanctions are

limited to “an attorney or pro se party.” T.M. v. J.H., 6th Dist. Lucas Nos. L-10-1014, L-

10-1034, 2011-Ohio-283, ¶ 98 (stating that Civ.R. 11 sanctions “may only be imposed

upon attorneys or, in certain circumstances, pro se litigants”). Appellee, who was

represented by counsel, is neither an attorney nor a pro se litigant. Thus, Civ.R. 11’s

provisions do not apply to her. Further, after carefully examining the record and the

hearing transcript, we find nothing to suggest that appellee’s attorney engaged in any acts

which would give rise to sanctions under Civ.R. 11. Accordingly, appellant’s first

assignment of error is not well-taken.

       {¶ 11} In his second assignment of error, appellant argues that the trial court erred

in denying his motion to dismiss under Civ.R. 12(B)(1). We review a ruling on a Civ.R.




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12(B)(1) motion to dismiss for lack of subject matter jurisdiction de novo. Hull v.

Columbia Gas of Ohio, 160 Ohio App.3d 695, 2005-Ohio-2089, 828 2d 677, ¶ 11 (6th

Dist.).

          {¶ 12} Appellant argues that the trial court lacked subject matter jurisdiction

because appellee is not a resident of Wood County. R.C. 2903.214 governs the filing of a

petition for a civil protection order. Regarding subject matter jurisdiction, R.C.

2903.214(B) provides: “The court has jurisdiction over all proceedings under this

section.” (Emphasis added). The “court” is defined under (A)(1) as “the court of

common pleas of the county in which the person to be protected by the protection order

resides.”

          {¶ 13} Here, appellee’s counsel acknowledged that appellee is a resident of

Adrian, Michigan. In response, the court indicated its reluctance to proceed with the

matter, stating: “I’m just curious why this is filed here in Wood County instead of in

petitioner’s home.” Nevertheless, the court proceeded to grant the temporary protection

order and continued the matter for a full hearing.

          {¶ 14} Based on the plain language of R.C. 2903.214, we find that the trial court

lacked subject matter jurisdiction over the proceedings. Regarding the court’s conclusion

that the denial of appellee’s petition mooted the issue, we note that “a court’s lack of

subject matter jurisdiction can be raised at any time during the course of a legal

proceeding, and this issue cannot be waived.” Reynolds v. Whitney, 10th Dist. Franklin

No. 03AP-1048, 2004-Ohio-1628, ¶ 10. Further, the court has an obligation to dismiss




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the action sua sponte “whenever it appears by suggestion of the parties or otherwise that

the court lacks jurisdiction on the subject matter.” Civ.R. 12(H)(3). Thus, we conclude

that the trial court erred in denying appellant’s motion to dismiss.

       {¶ 15} Accordingly, appellant’s second assignment of error is well-taken.

Because we find that the court lacked subject matter jurisdiction, the trial court’s

judgment was a nullity and must be vacated. Reynolds at ¶ 8, citing Patton v. Diemer, 35

Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph three of the syllabus.

                                      III. Conclusion

       {¶ 16} In light of the foregoing, the judgment of the Wood County Court of

Common Pleas, Domestic Relations Division, is reversed and vacated. Costs are hereby

assessed to appellee in accordance with App.R. 24.

                                                                        Judgment reversed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Stephen A. Yarbrough, P.J.                                  JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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