[Cite as Nnadi v. Nnadi, 2015-Ohio-3981.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Stanley E. Nnadi, :
Plaintiff-Appellant, :
No. 15AP-13
v. : (C.P.C. No. 13DR-3449)
Felicia N. Nnadi, : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on September 29, 2015
Richard B. Parry, for appellant.
Cynthia M. Roy, for appellee.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
HORTON, J.
{¶ 1} Plaintiff-appellant, Stanley E. Nnadi, appeals from a judgment of the
Franklin County Court of Common Pleas, dismissing his complaint for divorce without
prejudice. Because this court lacks jurisdiction, we dismiss the appeal.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} Plaintiff and defendant-appellee, Felicia N. Nnadi, were married on
September 13, 1991. Plaintiff filed a complaint for divorce on September 16, 2013. Four
children were born as issue of the marriage; only one child was a minor at the time of the
divorce proceedings. Plaintiff alleged in the complaint that he and defendant owned
various pieces of real estate, and alleged that he had acquired other properties before the
marriage. The disputed issues before the court for consideration included child support,
spousal support, and the division of marital debts and assets.
No. 15AP-13 2
{¶ 3} On January 29, 2014, the magistrate issued temporary orders obligating
plaintiff to pay defendant $1,038.60 per month in temporary child support, to pay one-
half of the minor child's high school tuition, one-half the cost of the minor child's braces,
and $1,000 in attorney's fees.
{¶ 4} On June 5, 2014, defendant filed a motion to compel discovery, asking the
court to order plaintiff to comply with defendant's request for production of documents.
Defendant also filed a motion for contempt on June 5, 2014, asserting that the court
should hold plaintiff in contempt for his failure to abide by the magistrate's temporary
orders. Defendant filed an affidavit in support of the motion for contempt, averring that
plaintiff had not paid any of the items he was ordered to pay under the magistrate's
January 29, 2014 temporary orders.
{¶ 5} The magistrate granted defendant's motion to compel on July 22, 2014. The
magistrate ordered plaintiff to "pay Defendant's attorney fees in the amount of $750.00
within 14 days," and obligated plaintiff to respond to defendant's request for production of
documents "within 30 days." (July 22, 2014 Magistrate's Order, 1.) The magistrate noted
that plaintiff's failure to comply with this order "may result in a finding of contempt and
additional sanctions." (July 22, 2014 Magistrate's Order, 1.)
{¶ 6} The matter came before the court for trial on December 16, 2014. Plaintiff
explained that he was retired, and that he owned various rental properties throughout the
Columbus, Ohio area. Defendant stated that she was employed as a nurse. The parties
informed the court that they were not willing to stipulate as to the other party's income.
As such, the court explained that it needed "W-2s, 1099Rs for him, full tax returns and
whatever they have to document what they've been paid so far this year. * * * And I want it
tomorrow." (Tr. 13.) The court informed the parties that there was going to be a "running
list of things I'm going to have you get tomorrow -- for tomorrow," and observed that
these documents should have been produced "a long time ago." (Tr. 13.) The court stated
that "[a]nybody who fails to turn up with whatever I'm telling you to turn up with
tomorrow is going to pay fines. I will fine you." (Tr. 13.) The court summarized the
information it wanted the parties to return with the following day, noting, "you all owe me
values on the vehicles. You owe me copies of the titles on the ones that you own. You owe
me mortgage statements for the properties that you have mortgages on." (Tr. 61.) The
No. 15AP-13 3
court also stated that it needed information regarding the parties' bank accounts, noting
"I need current balances in the four that you [defendant] have and the two that you
[plaintiff] have. I need that tomorrow." (Tr. 87.)
{¶ 7} At the beginning of trial the following day, defendant asked the court to
dismiss the case for plaintiff's "failure to cooperate and failure to prosecute." (Tr. 96.) In
response, the court stated as follows:
Counsel, I will tell you that I too have concerns that the assets
were properly disclosed and that they will be properly
accounted for today. And I have concerns about the fact that I
see at least two orders for the payment of attorney's fees that
were issued to your client that I have -- He admitted he didn't
pay the $750.
And I'll allow you to present your case in chief; but if I at any
time feel that I am not getting the information that I need to
render a decision, I will, in fact, dismiss this case for failure to
adequately prosecute it. So fair warning before you begin, as I
gave you yesterday.
(Tr. 96-97.)
{¶ 8} During plaintiff's case-in-chief, plaintiff failed to provide the court with the
information it had requested. For example, when plaintiff's attorney asked plaintiff to
state the balances in his two bank accounts, plaintiff stated that he had "no knowledge" of
the amounts in his bank accounts. (Tr. 199.) The court noted that it had told the parties
"yesterday that you would be subject to fines if you failed to produce documentary
evidence about the current balances in your two accounts." (Tr. 199.) Defendant then
renewed her motion to dismiss, and the trial court granted the motion, stating as follows:
I'm granting the motion. I'm sustaining it. I'm dismissing
this case for failure to prosecute. You've not proven anything.
There's no way possible that I can grant you spousal support
when, despite the fact that I told you to get information
regarding your bank account, you show up here today without
it and testify -- and I quote -- I do not have no knowledge. I
don’t know. I have no knowledge because I just came back on
Sunday. That is ridiculous. No comment from you. You're
excused from the stand. This case is dismissed.
(Tr. 200.)
No. 15AP-13 4
{¶ 9} On December 19, 2014, the trial court issued a decision and entry
dismissing plaintiff's complaint for divorce "without prejudice," pursuant to Ohio
Civ.R. 41(B)(1). (Emphasis sic.) (Decision and Entry, 1.) The court observed that both the
"court file and the transcript of the divorce proceeding are replete with Plaintiff's repeated
failures to comply with the valid orders/admonitions of this Court to timely produce
testimony and documentary evidence necessary for the Court to * * * ensure a fair and
final disposition of the marital and separate property assets/liabilities." (Emphasis sic.)
(Decision and Entry, 1.)
II. ASSIGNMENTS OF ERROR
{¶ 10} Plaintiff appeals, assigning the following errors for our review:
[I.] THE TRIAL COURT ERRED IN DISMISSING THE
PLAINTIFF'S ACTION. THE TRIAL COURT'S DISMISSAL
OF PLAINTIFF'S ACTION WAS AN ABUSE OF
DISCRETION, AN ERROR OF LAW AND DEPRIVED
APPELLANT OF DUE PROCESS OF LAW.
[II.] THE TRIAL COURT ERRED IN NOT RULING ON
PLAINTIFF'S MOTION TO SET ASIDE THE MAGISTRATE'S
ORDER.
III. LACK OF A FINAL APPEALABLE ORDER
{¶ 11} Ohio appellate courts have jurisdiction to review only final, appealable
orders of lower courts within their districts. Ohio Constitution, Article IV, Section
3(B)(2); R.C. 2501.02. If an order is not a final, appealable order, the appellate court
lacks jurisdiction and the appeal must be dismissed. Prod. Credit Assn. v. Hedges, 87
Ohio App.3d 207 (4th Dist.1993). Appellate courts have the duty to sua sponte examine
any deficiencies in jurisdiction. Price v. Jillisky, 10th Dist. No. 03AP-801, 2004-Ohio-
1221.
{¶ 12} When determining whether a judgment or order is final and appealable, an
appellate court engages in a two-step analysis. First, the court must determine if the
order is final within the requirements of R.C. 2505.02. Second, if the order satisfies R.C.
2505.02, the court must determine whether Civ.R. 54(B) applies and, if so, whether the
order contains a certification that there is no just reason for delay. Gen. Acc. Ins. Co. v.
Ins. Co. of N. Am., 44 Ohio St.3d 17, 21 (1989). A trial court's order is final and
appealable only if it satisfies the requirements of R.C. 2505.02 and, if applicable, Civ.R.
No. 15AP-13 5
54(B). Denham v. New Carlisle, 86 Ohio St.3d 594, 596 (1999), citing Chef Italiano
Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88 (1989).
{¶ 13} R.C. 2505.02(B) defines a final order as follows:
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:
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
(3) An order that vacates or sets aside a judgment or grants a
new trial;
(4) An order that grants or denies a provisional remedy and to
which both of the following apply:
(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.
(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.
{¶ 14} Civ.R. 54(B) provides that "[w]hen more than one claim for relief is
presented in an action * * * or when multiple parties are involved, the court may enter
final judgment as to one or more but fewer than all of the claims or parties only upon an
express determination that there is no just reason for delay." See Chef Italiano at
syllabus; State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, ¶ 5-7. Civ.R.
54(B) does not alter the requirement that an order must be final before it is appealable.
Gen. Acc. Ins. Co. at 21, citing Douthitt v. Garrison, 3 Ohio App.3d 254, 255 (9th
Dist.1981).
{¶ 15} The trial court dismissed plaintiff's action pursuant to Civ.R. 41(B)(1),
without prejudice. See Ohio Civ.R. 41(B)(1) (providing that "[w]here the plaintiff fails to
prosecute, or comply with these rules or any court order, the court upon motion of a
No. 15AP-13 6
defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an
action or claim"). A dismissal under Civ.R. 41(B)(1) "operates as an adjudication upon
the merits unless the court, in its order for dismissal, otherwise specifies." Civ.R.
41(B)(3). An appellate court reviews a trial court's decision to dismiss an action pursuant
to Civ.R. 41(B)(1) for an abuse of discretion. Cordell v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 13AP-379, 2013-Ohio-5547, ¶ 6. See also Quonset Hut, Inc. v. Ford Motor Co.,
80 Ohio St.3d 46, 47 (1997).
{¶ 16} "Generally, a dismissal without prejudice constitutes 'an adjudication
otherwise than on the merits' with no res judicata bar to refiling the suit." Johnson v.
H&M Auto Serv., 10th Dist No. 07AP-123, 2007-Ohio-5794, ¶ 7, quoting Thomas v.
Freeman, 79 Ohio St.3d 221, 225 (1997), fn. 2. This is because a trial court's dismissal
without prejudice "places the parties in the same position they were in before they filed
the action." Id. Thus, "a dismissal without prejudice is not a final appealable order, so long
as a party may refile or amend a complaint." Id. See also Hattie v. Garn, 9th Dist. No.
98CA007208 (Dec. 29, 1999) (noting that "[a] dismissal without prejudice is not a final
determination of the rights of the parties and does not constitute a judgment of final
order when refiling or amending of the complaint is possible").
{¶ 17} Plaintiff asserts that the trial court erred in dismissing the case pursuant to
Civ.R. 41(B)(1), as "the record does not indicate that the trial Court gave any notice of its
intent to dismiss the case." (Appellant's Brief, 10.) As noted above, Civ.R. 41(B)(1) allows
for dismissal "after notice to the plaintiff's counsel." "The purpose of notice is to give the
party who is in jeopardy of having his or her action or claim dismissed one last chance to
comply with the order or to explain the default." Sazima v. Chalko, 86 Ohio St.3d 151, 158
(1999). The notice given pursuant to Civ.R. 41(B)(1) need not be actual notice. Id. at 155-
56. Rather, notice will be implied when counsel has been informed that dismissal is a
possibility and has had a reasonable opportunity to defend against dismissal. Quonset at
syllabus.
{¶ 18} During the first day of trial, the court clearly instructed the parties to return
with certain evidence the following day. The court specifically told the parties to bring
evidence regarding the "current balances" in their bank accounts, and informed the
parties that the court would fine anyone who failed to provide the court with the evidence
No. 15AP-13 7
it had requested. (Tr. 87.) On the second day of trial, before the presentation of evidence,
the court told plaintiff that it would "dismiss this case for failure to adequately prosecute
it" if the court felt it was not "getting the information that [it] need[ed] to render a
decision." (Tr. 96-97.)
{¶ 19} Accordingly, the court provided plaintiff with direct notice of the court's
intent to dismiss the case. Plaintiff knew that he was unprepared for trial, as the court had
specifically requested evidence of the balances in plaintiff's bank accounts and plaintiff
did not have that evidence with him. Plaintiff could have asked for a recess or continuance
to acquire the information the court had requested, yet plaintiff decided to present his
case-in-chief knowing that he was unprepared. As such, we find that plaintiff had
adequate notice of the court's intent to dismiss the case for failure to prosecute, and had a
reasonable opportunity to defend against the dismissal by complying with the court's
orders. See Foley v. Nussbaum, 2d Dist. No. 24572, 2011-Ohio-6701, ¶ 29 (finding that
the plaintiff had sufficient notice that his case would be dismissed, as "the trial court had
expressly warned Foley that his failure to comply with discovery requests to provide
information about his medical expenses and records could result in dismissal of his
complaint").
{¶ 20} The trial court dismissed the action without prejudice, and there is nothing
to prevent plaintiff from successfully refiling the action. Indeed, the trial court even noted
in the dismissal entry that, when "Plaintiff and/or Defendant are prepared to re-file a
Complaint for Divorce/Legal Separation or Petition for Dissolution, this Court would
entertain a motion to waive his/her filing fee." (Decision and Entry, 2.) Accordingly, as
plaintiff can refile the complaint, the trial court's dismissal of the action without prejudice
is not a final appealable order. As such, this court is without jurisdiction to address
plaintiff's assignments of error.
{¶ 21} Based on the foregoing, plaintiff's appeal is dismissed for lack of a final
appealable order.
Appeal dismissed.
BROWN, P.J. and BRUNNER, J., concur.
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