In re Z.S.

2013 Ohio 1042

• Court: Ohio Court of Appeals
• Decided: March 21, 2013
• Docket: 99082
• Status: Published

Opinion

[Cite as In re Z.S., 2013-Ohio-1042.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99082

IN RE: Z.S. A Minor Child [Appeal By N.S.]

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. PR-10700292

BEFORE: E.T. Gallagher, J., Keough, P.J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: March 21, 2013 ATTORNEY FOR APPELLANT

Jeffrey F. Slavin 1810 The Standard Building 1370 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE, C.J.F.S., F.K.A. C.S.E.A

Timothy J. McGinty Cuyahoga County Prosecutor BY: Joseph C. Young Assistant Prosecuting Attorney Cuyahoga Job & Family Services P.O. Box 93894 Cleveland, Ohio 44101-5984 EILEEN T. GALLAGHER, J.:

{¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1.

{¶2} Plaintiff-appellant N.S. (“appellant”) appeals the trial court’s dismissal of his

complaint without prejudice. Because we conclude that the order granting the motion to

dismiss is not a final, appealable order, we dismiss the appeal for lack of jurisdiction.

{¶3} In January 2010, appellant filed a complaint to vacate his paternity

acknowledgment and attached a copy of genetic test results dated April 11, 2005. He

alleged that when Z.S. was born on September 9, 2004, he believed he was Z.S.’s father

and signed an affidavit acknowledging paternity. Approximately seven months after

Z.S.’s birth, results from a genetic test indicated that appellant could not be Z.S.’s

biological father. Yet, appellant did not file a complaint to vacate his paternity

acknowledgment until nearly five years later.

{¶4} Shortly after filing the complaint, appellant filed a motion to compel the

mother, N.B. (“mother”), and Z.S. to submit to genetic testing. Following a hearing, a

magistrate dismissed the case without prejudice because appellant failed to submit

“genetic test results from a genetic test administered no more than six months prior to the

filing of the motion for relief,” as required by R.C. 3119.962(A)(1)(a). The magistrate

concluded that the juvenile court lacked authority to order the parties to submit to genetic

testing under the facts presented in the case, based on this court’s decision in State ex rel.

Rojas v. Guilfu, 8th Dist. No. 84145, 2004-Ohio-6707. The trial court adopted the magistrate’s decision, overruled appellant’s objections, and dismissed the case without

prejudice, and appellant appealed. This court dismissed the appeal for lack of a final,

appealable order. In re Z.S., 8th Dist. No. 96500, 2011-Ohio-3269, ¶ 23.

{¶5} On remand, appellant filed a second complaint and motion to vacate paternity

determination pursuant to R.C. 3119.961 and a motion for genetic testing pursuant to R.C.

2151.231. A magistrate issued a decision denying the motions for failure to state a claim

upon which relief could be granted because the genetic test results did not comply with

R.C. 3119.962(A)(1)(a). The court overruled appellant’s objections, adopted the

magistrate’s report, and dismissed the case without prejudice. Appellant now appeals

and raises one assignment of error.

{¶6} We are unable to reach the merits of appellant’s appeal because we do not

have jurisdiction. Appellate jurisdiction is limited to reviewing a lower court’s final

judgment. Section 3(B)(2), Article IV of the Ohio Constitution. To be a final,

appealable order, a judgment entry must meet 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).

{¶7} R.C. 2505.02 defines a final order for purposes of appeal. Under R.C.

2505.02(B)(1), “[a]n order is a final order that may be reviewed, affirmed, modified, or

reversed, with or without retrial, when it is * * * [a]n order that 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). For purposes of this case, we will assume that the trial court’s dismissal

for failure to state a claim upon which relief might be granted affected a substantial right

— i.e., the right to be relieved of paternal obligations, including child support for another

man’s child.

{¶8} 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; R.C. 2505.02(B)(1). “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.” Id., quoting Hamilton Cty. Bd. of Mental

Retardation & Dev. Disabilities v. Professionals Guild of Ohio, 46 Ohio St.3d 147, 153,

545 N.E.2d 1260 (1989).

{¶9} Ordinarily, a dismissal without prejudice constitutes “an adjudication

otherwise than on the merits” with no res judicata bar to refiling the suit.1 Thomas v.

Freeman, 79 Ohio St.3d 221, 225, 1997-Ohio-395, 680 N.E.2d 997, fn. 2. A dismissal

without prejudice leaves the parties in the same position they were in prior to the action

being filed. Id., citing Johnson v. H&M Auto Serv., 10th Dist. No. 07AP-123,

The “double dismissal rule” contained in Civ.R. 41(A)(1) provides that plaintiff’s second 1

voluntary dismissal constitutes an adjudication on the merits. The double dismissal rule is inapplicable in the instant case, which involves an involuntary dismissal of appellant’s complaint by the court. 2007-Ohio-5794, ¶ 7. Thus, in most cases, such as this one, “a dismissal without

prejudice is not a final appealable order because a party may refile or amend a

complaint.” Id. See also Thorton v. Montville Plastics & Rubber, Inc., 121 Ohio St.3d

124, 2009-Ohio-360, 902 N.E.2d 482, ¶ 24. In other words, appellant may file yet

another complaint to seek relief of his paternity acknowledgment by complying with the

requirements set forth in R.C. 3119.962(A)(1)(a) or, in the alternative, by demonstrating

that mother willfully refused to submit Z.S. to genetic testing as provided in R.C.

3119.963(B). State ex rel. Rojas v. Guilfu, 8th Dist No. 84145, 2004-Ohio-6707, ¶ 16.

{¶10} Because the juvenile court’s order was not final, this court lacks jurisdiction

and must dismiss the appeal.

{¶11} Appeal dismissed.

It is ordered that appellee recover of appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

KATHLEEN A. KEOUGH, P.J., and EILEEN A. GALLAGHER, J., CONCUR