[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.