[Cite as Dill v. Athens, 2013-Ohio-5888.]


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

JEFFERY C. DILL, ET AL.,              :    Case No. 12CA30
                                      :
      Plaintiffs-Appellants,          :
                                      :    DECISION AND
      v.                              :    JUDGMENT ENTRY
                                      :
CITY OF ATHENS, OHIO, ET AL.,         :
                                      :    RELEASED: 12/26/13
      Defendant-Appellee.             :
______________________________________________________________________
                              APPEARANCES:

Garry E. Hunter, Garry E. Hunter Law Offices, Inc., Athens, Ohio, for appellants.

Patrick J. Lang, City of Athens Director of Law, Athens, Ohio, for appellee City of
Athens, Patrick Lang, John Paszke, Athens City Planning Commission and Athens City
Zoning Board.

Tiffany C. Miller, Bailey Cavalieri LLC, Columbus, Ohio, and William R. Walker, Walker
& Walker Co., L.P.A., Athens, Ohio, for appellee Integrated Services of Appalachian
Ohio, Inc.
______________________________________________________________________
Harsha, J.

        {¶1}     Jeffery Dill and other taxpayers (collectively “the taxpayers”) appeal the

trial court’s entry dismissing their action without prejudice. However, because the trial

court’s entry is not a final, appealable order we have no jurisdiction to consider the

appeal and must dismiss it.

                                            I. FACTS

        {¶2}     This appeal arose from the construction of a multi-unit, residential

structure in Athens, Ohio, by Integrated Services of Appalachian Ohio, Inc. (Integrated

Services). Initially, Integrated Services sought a variance from the Athens City Board of

Zoning Appeals to construct a two-story complex that would replace a single-family
Athens App. No. 12CA30                                                                      2

mobile home it removed. The Board of Zoning Appeals denied the variance, and rather

than appeal its decision, Integrated Services sought approval of a three-story complex

from the Athens City Planning Commission. The Planning Commission approved the

new plan for a three-story structure, without residential use on the first floor. Integrated

Services then returned the case to the Board of Zoning Appeals and asked for a

substitution of a nonconforming use (the mobile home) for a not more objectionable

nonconforming use (the two-story structure). The Board of Zoning Appeals approved

the substitution of a two-story structure with first-floor residential use, the same structure

which it had previously denied.

       {¶3}   The taxpayers filed this action under R.C. 733.59 against the City of

Athens, Athens City Planning Commission, Athens City Zoning Board, and various city

officials (collectively “city defendants”), as well as Integrated Services. Many of the

taxpayers also filed two other related administrative appeals that directly challenge the

Board of Zoning Appeals’ and Planning Commission’s decisions. In their amended

complaint in this case, the taxpayers alleged that the city defendants “have failed to

enforce the laws of the City of Athens, Ohio,” and sought to enjoin Integrated Services

from building any structure on the property; they also sought a writ of mandamus. After

the court denied a temporary injunction, both the city defendants and Integrated

Services filed Civ.R. 12(B)(6) motions to dismiss the amended complaint for failure to

state a claim upon which relief can be granted. The court found that this case could not

be finally resolved until the administrative appeals were decided and dismissed the case

without prejudice. The taxpayers now appeal the trial court’s dismissal.

                               II. ASSIGNMENT OF ERROR
Athens App. No. 12CA30                                                                          3

       {¶4}   The taxpayers raise one assignment of error for our review:

       1. “THE TRIAL COURT DISMISSAL WITHOUT PREJUDICE PURSUANT
       TO OHIO CIVIL RULE 12 (B) WAS PREMATURE.”

                                  III. LAW AND ANALYSIS

       {¶5}   In their assignment of error, the taxpayers argue that the trial court erred

by dismissing the case for several reasons: 1.) this is public cause of action under R.C.

733.59 and the administrative appeals are distinct private causes of action; 2.) the

allegations in the amended complaint are sufficient to state a cause of action; and 3.)

the City of Athens failed to post a required notice prior to the Planning Commission’s

first hearing. However, both the city defendants and Integrated Services contend that

the trial court’s dismissal is not a final, appealable order.

       {¶6}   The Ohio Constitution limits an appellate court’s jurisdiction to the review

of “final orders” of lower courts. Section 3(B)(2), Article IV, Ohio Constitution. Under

R.C. 2505.02(B)(1), an order is final if it “affects a substantial right in an action that in

effect determines the action and prevents a judgment[.]” A “substantial right” is “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).

       {¶7}   “To be final, however, ‘an order must also determine an action and

prevent a judgment.’” Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc.,

114 Ohio St.3d 82, 2007-Ohio-2942, 868 N.E.2d 663, ¶ 7, quoting Chef Italiano Corp. v.

Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989); R.C. 2505.02(B). “‘For an

order to determine the action and prevent a judgment for the party appealing, it must

dispose of the whole merits of the cause or some separate and distinct branch thereof

and leave nothing for the determination of the court.’” Natl. City at ¶ 7, quoting Hamilton
Athens App. No. 12CA30                                                                         4

Cty. Bd. of Mental Retardation & Dev. Disabilities v. Professionals Guild of Ohio, 46

Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989).

       {¶8}   Ordinarily, an action dismissed without prejudice is not a final, appealable

order because such a dismissal does not prevent the party from refiling the case. See

Natl. City at ¶ 8. This is so because a dismissal without prejudice relieves the court of

jurisdiction over the matter, and the action is treated as though it had never been

commenced. See Zimmie v. Zimmie, 11 Ohio St.3d 94, 95, 464 N.E.2d 142 (1984). If

an action has never been commenced, it follows that it could not have decided anything

with the kind of finality required by R.C. 2505.02.

       {¶9}   In their reply brief the taxpayers contend the trial court’s entry is a final,

appealable order because it affects their substantial right to collect court costs and

attorney fees. However, they give no valid reason why they cannot pursue these claims

after the administrative appeals have been decided. In fact, the trial court dismissed the

case on the condition “that any issues in this case not conclusively and finally resolved

by the two companion administrative appeals be reserved for further consideration if

and when appropriate.” Even if we assume that the taxpayers’ ability to collect attorney

fees under R.C. 733.61 is a substantial right, given the trial court’s express reservation

of jurisdiction to address collateral matters, we can see no reason why they cannot

pursue these issues later. See Natl. City at ¶ 12. See also Cooter & Gell v. Hartmarx

Corp, 496 U.S. 384, 396, 110 S.Ct. 2447, 110 L.Ed.2d. 359 (1990); State ex rel.

Engelhart v. Russo, 131 Ohio St.3d. 137, 2012-Ohio-47, 961 N.E.2d 1118, ¶ 28; State

ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853, ¶ 23, 25;

and State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 556, 740 N.E.2d 265 (2001), citing
Athens App. No. 12CA30                                                                    5

Cooter & Gell at 396. Thus, the trial court’s entry is not a final, appealable order and we

dismiss the appeal.

                                                                    APPEAL DISMISSED.
Athens App. No. 12CA30                                                                     6

                                   JUDGMENT ENTRY

         It is ordered that the APPEAL IS DISMISSED and that Appellants 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 Athens
County Court of Common Pleas 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.

McFarland, P.J. & Hoover, 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.
