[Cite as Kopina v. Kopina, 2014-Ohio-287.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


KELLY L. KOPINA                              :      JUDGES:
                                             :
                                             :      Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :      Hon. Patricia A. Delaney, J.
                                             :      Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
DOUGLAS S. KOPINA                            :      Case No. 13CA30
                                             :
                                             :
        Defendant - Appellant                :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Knox County Court
                                                    of Common Pleas, Case No.
                                                    09DC07-0163



JUDGMENT:                                           Dismissed



DATE OF JUDGMENT:                                   January 27, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant – Pro Se

MORGAN E. GILES                                     DOUGLAS S. KOPINO, #600-169
The Giles Law Group                                 Marion Correctional Institution
109 E. High Street                                  940 Marion-Williamsport Road
Mount Vernon, OH 43050                              P.O. Box 57
                                                    Marion, OH 43301-0057
Knox County, Case No.13CA30                                                                2



Baldwin, J.

      {¶1}    Defendant-appellant Douglas Kopina appeals from the October 8, 2013

Journal Entry of the Knox County Court of Common Pleas dismissing his motion

alleging that plaintiff-appellee Kelly Kopina was in contempt.

                            STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellant and appellee were married on December 4, 1999. On July 15,

2009, appellee filed a complaint against appellant seeking a divorce. Pursuant to a

Judgment Entry filed on November 12, 2009, appellee was granted a divorce from

appellant.

      {¶3}    Subsequently, on July 22, 2013, appellant, who was incarcerated, filed a

Motion to Show Cause, alleging that appellee was in contempt. Appellant, in his motion,

alleged that appellee had violated three provisions of the trial court’s November 12,

2009 Judgment Entry. Appellant alleged, in part, that appellee had violated such order

by failing to prepare a QDRO to secure appellant’s marital portion of her retirement

benefits and by failing to pay him $1,500.00 within one year of the date of the order. A

hearing assignment notice was filed on July 24, 2013 stating that an oral hearing on

appellant’s motion was scheduled for September 30, 2013. The notice stated that

failure to appear may result in dismissal. The notice was sent to appellant at Marion

Correctional Institution.

      {¶4}    Appellant, on August 14, 2013, filed a motion asking that a Guardian Ad

Litem be appointed for him pursuant to Civ.R. 17(B) on the basis that, because he was

incarcerated, he was incompetent. Appellant asked that the Guardian Ad Litem be

appointed for the sole purpose of attending the September 30, 2013 oral hearing. As
Knox County, Case No.13CA30                                                                   3


memorialized in a Judgment Entry filed on August 30, 2013, the trial court overruled

appellant’s motion.

      {¶5}    Appellant did not appear at the hearing. Pursuant to a Journal Entry filed

on October 8, 2013, the trial court dismissed appellant’s Motion to Show Cause due to

appellant’s failure to prosecute. The trial court, in its Journal Entry, stated that appellant

“will be able to refile his motion, if necessary, upon his release from incarceration.” The

trial court also noted that appellee’s counsel had indicated that he was communicating

with appellant in an attempt to resolve the issues raised in appellant’s motion.

      {¶6}    Appellant now appeals from the trial court’s October 8, 2013 Journal

Entry, raising the following assignments of error on appeal:

      {¶7}    THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING THE

APPELLANT’S MOTION FOR FAILURE TO PROSECUTE WITHOUT FIRST

NOTIFYING THE APPELLANT OF THE COURT’S INTENTION TO DISMISS THE

COMPLAINT OF THE APPELLANT IN VIOLATION OF OHIO CIVIL RULES OF

PROCEDURE, CIV.R. 41(B).

      {¶8}    THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING THE

APPELLANT’S COMPLAINT FOR FAILURE TO PROSECUTE AFTER OVERRULING

THE REQUEST FOR THE APPOINTMENT OF A GUARDIAN AD LITEM BY THE

APPELLANT WHO IS STATUTORILY DEFINED AS “INCOMPETENT” (O.R.C.

2111.01(D)), IN VIOLATION OF THE OHIO CIVIL RULES OF PROCEDURE, CIV. R.

17(B), AND CONSTITUTION OF OHIO, ARTICLE I, [SECTION] 16 DUE PROCESS

CLAUSE.
Knox County, Case No.13CA30                                                                                            4


        {¶9}      However, before reaching the merits of this appeal, we must determine

whether this Court has jurisdiction to review the order from which the parties appeal.

Section 3(B)(2), Article IV of the Ohio Constitution limits this Court's appellate

jurisdiction to the review of final judgments of lower courts. For a judgment to be final

and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable,

Civ.R. 54(B). Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d

64 (1989).

        {¶10}     In the case sub judice, the trial court sua sponte dismissed appellant's

motion without prejudice1 for failure to prosecute after appellant failed to appear at the

oral hearing. Civ.R. 41(B)(1) states that “[w]here a plaintiff fails to prosecute, or comply

with these rules or any court order, the court upon motion of a defendant or on its own

motion may, after notice to the plaintiff's counsel, dismiss an action or a claim.”

        {¶11}     R.C. 2505.02(B) defines final orders, in relevant part, as follows:

        {¶12}     “(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:

        {¶13}     “(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

        {¶14}     “(2) An order that affects a substantial right made in a special proceeding

or upon a summary application in an action after judgment;

        {¶15}     “(3) An order that vacates or sets aside a judgment or grants a new trial;

        {¶16}     “(4) An order that grants or denies a provisional remedy and to which both

of the following apply:


1
 While the trial court, in its Journal Entry, stated that the matter should be dismissed with prejudice, it actually
ordered that the matter be dismissed without prejudice for failure to prosecute.
Knox County, Case No.13CA30                                                                       5


      {¶17}   “(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.

      {¶18}   “(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.”

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

than on the merits pursuant to Civ.R. 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. In Davis v. Paige, 5th Dist. Stark No. 2007–

CV–00248, 2008–Ohio–6415, this Court found that a dismissal without prejudice for

failure to prosecute was not a final appealable order.

      {¶20}   In the instant matter, the trial court, in its Journal Entry, clearly stated that

the action was dismissed without prejudice. The trial court further stated that appellant

“will be able to refile his motion, if necessary, upon his release from incarceration.”

Therefore, since appellant has the ability to refile his motion, the trial court's dismissal

without prejudice is not a final appealable order. Since appellant requested that a

Guardian Ad Litem be appointed to represent him at the September 30, 2013 hearing,

whether or not the trial court erred in failing to appoint one is now moot.

      {¶21}   Based on the foregoing analysis, this Court lacks jurisdiction at this time to

consider this appeal.
Knox County, Case No.13CA30                                    6


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

By: Baldwin, J.

and Delaney, J. concur,

Hoffman, P.J. concurs separately.
Knox County, Case No.13CA30                                                              7

Hoffman, P.J., concurring

       {¶23} I concur in the majority’s analysis and disposition of this appeal. I write

separately only to voice my continuing disagreement with the accepted rule a dismissal

without prejudice is not a final appealable order.

       {¶24} The Sixth District Court of Appeals in Lippus v. Lippus, Erie App. No. E-

07-003, 2007-Ohio-6886, recognized an exception to this principal. That court found

“…where a party’s case is involuntarily dismissed by the trial court, and because of the

[involuntary] dismissal any rights of the party are extinguished and will not be able to be

reasserted in a re-filed case, that party has the right to appeal the dismissal pursuant to

R.C. 2505.02(B)(1)…” Id., at ¶19. I agree.

       {¶25} But I would go further. I would extend the exception to all involuntary

dismissals. I believe the delay caused by re-filing and the necessary costs associated

therewith, i.e., court costs, potential additional attorney fees, possible delay of date of

accrual of post-judgment interest, delay of present day use of money, all are prejudicial

to a plaintiff. For example under a worst case scenario, if a plaintiff files a personal

injury action which proceeds over the course of years through discovery, pre-trial

motions, possible appeal if summary judgment was granted and reversed, but whose

case is eventually involuntarily dismissed without prejudice for a reason that is either

illegal or represents an abuse of discretion,2 is not the plaintiff prejudiced by having to

re-file and begin the process anew? What if the plaintiff in a divorce case dies before

the re-filed case is concluded? What if a defendant(s) in any civil action are discharged



2
 A recent case which came before this court involving an involuntary dismissal without
prejudice of a divorce case after two days of trial because the case was beyond the
Ohio Supreme Court guidelines for disposition serves as a prime example.
Knox County, Case No.13CA30                                                           8


in bankruptcy in the interim? Is not the delay alone, let alone the actual and potential

costs necessitated by re-filing, prejudicial.

       {¶26} I would encourage courts reexamine this issue and invite further review of

the general rule by the Ohio Supreme Court.
