[Cite as Miller v. Evans, 2015-Ohio-4570.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
ROBERT MILLER : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 2015CA00044 : NANCY EVANS : : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2014DR00566
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: November 2, 2015
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
CRAIG T. CONLEY WARNER MENDENHALL 604 Huntington Plaza 190 N. Union St., Ste. 201 220 Market Ave. South Akron, OH 44304 Canton, OH 44702 Stark County, Case No. 2015CA00044 2
Delaney, J.
{¶1} Plaintiff-appellant Robert Miller ("Miller") appeals from the Judgment
Entries of the Stark County Court of Common Pleas, Family Court Division, dated
January 9, 2015 and February 18, 2015. Defendant-appellee is Nancy Evans
("Evans").
FACTS AND PROCEDURAL HISTORY
{¶1} This case is related to but not consolidated with Robert Miller v. Nancy
Evans, 5th Dist. Stark No. 2015CA00042. In that case, Evans is the appellant and
Miller the appellee. The two appeals arise from the same underlying case and raise
different but related assignments of error. The facts and procedural histories are
therefore identical but we will address each appeal in a separate opinion. The parties
agree upon the following relevant facts and procedural history.
{¶2} In August 2013, Miller executed a Power of Attorney giving his daughter,
attorney Bobbie L. Marsh, fiduciary power to transact business on his behalf.
{¶3} On May 27, 2014, Miller filed a complaint for divorce against his wife,
Evans.1 Evans filed a counterclaim for divorce against Miller.2
{¶4} In September 2014, Evans moved the trial court to determine the validity
of the Power of Attorney.
{¶5} On October 22, 2014, Miller dismissed his complaint pursuant to Civ.R.
41(A)(1).3 On January 8, 2015, Evans voluntarily dismissed her counterclaim pursuant
to Civ.R. 41(A)(1).
1 Miller was represented by attorney Susan Pucci Sutton. 2 Evans was represented by attorney Arnold F. Glantz. 3 The dismissal was filed by attorney Craig Conley. Stark County, Case No. 2015CA00044 3
{¶6} On January 9, 2015, the trial court entered a Judgment Entry stating in
pertinent part:
* * * *.
Findings of Fact:
Ms. Marsh was properly served by subpoena on December
4, 2014 and failed to appear. She demands witness fees paid in
advance. Mr. Glantz argues that Ms. Marsh is a party as she filed,
through alleged power of attorney, filed (sic) the initial complaint
that brought this matter to court. While Ms. Marsh's actions in this
case are found to be contrary to behavior expected of an attorney
in this state (sic).
Order:
The power of attorney was not valid when this case or the
domestic violence case were filed. Case number 2014DV00051 is
ordered sealed. [Evans] moves to voluntarily dismiss her
counterclaim. Case number 2014DR00566 is also ordered sealed.
{¶7} On January 20, 2015, attorney Marsh moved to strike the following
language from the court's Judgment Entry of January 9: "While Ms. Marsh's actions in
this case are found to be contrary to behavior expected of an attorney in this state
(sic)."4
4 Attorney Craig Conley filed the motion to strike on behalf of attorney Marsh. Stark County, Case No. 2015CA00044 4
{¶8} On February 9, 2015, Evans moved for sanctions against Miller's counsel
pursuant to Civ.R. 11 and R.C. 2323.51 on the basis of the trial court's finding that the
Power of Attorney was not valid.5 Both attorneys responded with memoranda in
opposition.
{¶9} On February 18, 2015, the trial court filed a Judgment Entry stating in
This case was closed on January 9, 2015 after the court
found that the Power of Attorney was not valid and upon the
dismissal of [Evans'] counterclaim for divorce. [Miller] previously
dismissed his Complaint for divorce.
The Court was informed that there have been numerous
filings since the closing of the case. None of these filings
appropriately opened a closed domestic relations case and
therefore the court does not have jurisdiction to address same.
All outstanding motions dismissed for lack of jurisdiction.
{¶10} In the instant appeal, Miller appeals from the trial court's judgment entries
of January 9 and February 18, 2015, arguing the trial court lacked jurisdiction to issue
both orders because the case was dismissed in its entirety as of January 8, 2015.
5The motion for sanctions was filed by attorney Warner Mendenhall on behalf of Evans and was served upon attorneys Susan Pucci Sutton and Craig Conley. Stark County, Case No. 2015CA00044 5
{¶11} In the related appeal, Evans appeals from the trial court's Judgment Entry
of February 18, 2015, arguing the motion for sanctions survived the dismissal and the
trial court should have held a hearing thereon.
{¶12} Miller raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶13} "I. AS TO THE TRIAL COURT'S JANUARY 9, 2015 JUDGMENT ENTRY,
IT ERRED IN PROCEEDING TO HEAR, AND THEN TO ADJUDICATE, AFTER
PLAINTIFF'S/APPELLANT'S COMPLAINT FOR DIVORCE HAD ALREADY BEEN
VOLUNTARILY DISMISSED, DEFENDANT'S/APPELLEE'S PRE-DISMISSAL MOTION
TO DETERMINE THE VALIDITY OF THE POWER OF ATTORNEY USED TO FILE
THE SAME COMPLAINT."
{¶14} "II. AS TO BOTH OF THE TRIAL COURT'S JANUARY 9, 2015 AND
FEBRUARY 18, 2015 JUDGMENT ENTRIES, IT ERRED IN CONTINUING TO
EXERCISE JURISDICTION AFTER THE ACTION BEFORE IT HAD ALREADY BEEN
VOLUNTARILY DISMISSED IN ITS ENTIRETY."
ANALYSIS
I., II.
{¶15} Miller's two assignments of error are related and will be considered
together. Miller contends the trial court was without jurisdiction to enter its judgment
entries of January 9 and February 18, 2015. Evans agrees but asserts the trial court Stark County, Case No. 2015CA00044 6
retained jurisdiction to rule on collateral matters including the motion for sanctions.6 We
agree the trial court had no jurisdiction to enter the judgment entries of January 9 and
February 18, 2015, and therefore reverse and vacate those judgment entries.
{¶16} A plaintiff's notice of voluntary dismissal made pursuant to Civ.R. 41(A)(1)
is self-executing; it requires no court action and is effective on the date of filing.
Brogdon v. Sibley Murray, LLC, 5th Dist. Stark No. 2009 CA 139, 2010-Ohio-539, ¶ 9,
citing James v. Allstate Ins. Co., 8th Dist. Cuyahoga No. 75993, 2000 WL 284221
(March 16, 2000). Generally, where a case has been voluntarily dismissed under Civ.R.
41(A)(1), the trial court patently and unambiguously lacks jurisdiction to proceed. See
State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853 at ¶
22. A voluntary dismissal divests the trial court of jurisdiction to make any entry on the
merits thereafter. Frazee v. Ellis Bros., 113 Ohio App.3d 828, 830, 682 N.E.2d 676 (5th
Dist.1996).
{¶17} Miller's dismissal of the complaint on October 22, 2014, followed by
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[Cite as Miller v. Evans, 2015-Ohio-4570.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
ROBERT MILLER : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 2015CA00044 : NANCY EVANS : : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2014DR00566
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: November 2, 2015
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
CRAIG T. CONLEY WARNER MENDENHALL 604 Huntington Plaza 190 N. Union St., Ste. 201 220 Market Ave. South Akron, OH 44304 Canton, OH 44702 Stark County, Case No. 2015CA00044 2
Delaney, J.
{¶1} Plaintiff-appellant Robert Miller ("Miller") appeals from the Judgment
Entries of the Stark County Court of Common Pleas, Family Court Division, dated
January 9, 2015 and February 18, 2015. Defendant-appellee is Nancy Evans
("Evans").
FACTS AND PROCEDURAL HISTORY
{¶1} This case is related to but not consolidated with Robert Miller v. Nancy
Evans, 5th Dist. Stark No. 2015CA00042. In that case, Evans is the appellant and
Miller the appellee. The two appeals arise from the same underlying case and raise
different but related assignments of error. The facts and procedural histories are
therefore identical but we will address each appeal in a separate opinion. The parties
agree upon the following relevant facts and procedural history.
{¶2} In August 2013, Miller executed a Power of Attorney giving his daughter,
attorney Bobbie L. Marsh, fiduciary power to transact business on his behalf.
{¶3} On May 27, 2014, Miller filed a complaint for divorce against his wife,
Evans.1 Evans filed a counterclaim for divorce against Miller.2
{¶4} In September 2014, Evans moved the trial court to determine the validity
of the Power of Attorney.
{¶5} On October 22, 2014, Miller dismissed his complaint pursuant to Civ.R.
41(A)(1).3 On January 8, 2015, Evans voluntarily dismissed her counterclaim pursuant
to Civ.R. 41(A)(1).
1 Miller was represented by attorney Susan Pucci Sutton. 2 Evans was represented by attorney Arnold F. Glantz. 3 The dismissal was filed by attorney Craig Conley. Stark County, Case No. 2015CA00044 3
{¶6} On January 9, 2015, the trial court entered a Judgment Entry stating in
pertinent part:
* * * *.
Findings of Fact:
Ms. Marsh was properly served by subpoena on December
4, 2014 and failed to appear. She demands witness fees paid in
advance. Mr. Glantz argues that Ms. Marsh is a party as she filed,
through alleged power of attorney, filed (sic) the initial complaint
that brought this matter to court. While Ms. Marsh's actions in this
case are found to be contrary to behavior expected of an attorney
in this state (sic).
Order:
The power of attorney was not valid when this case or the
domestic violence case were filed. Case number 2014DV00051 is
ordered sealed. [Evans] moves to voluntarily dismiss her
counterclaim. Case number 2014DR00566 is also ordered sealed.
{¶7} On January 20, 2015, attorney Marsh moved to strike the following
language from the court's Judgment Entry of January 9: "While Ms. Marsh's actions in
this case are found to be contrary to behavior expected of an attorney in this state
(sic)."4
4 Attorney Craig Conley filed the motion to strike on behalf of attorney Marsh. Stark County, Case No. 2015CA00044 4
{¶8} On February 9, 2015, Evans moved for sanctions against Miller's counsel
pursuant to Civ.R. 11 and R.C. 2323.51 on the basis of the trial court's finding that the
Power of Attorney was not valid.5 Both attorneys responded with memoranda in
opposition.
{¶9} On February 18, 2015, the trial court filed a Judgment Entry stating in
This case was closed on January 9, 2015 after the court
found that the Power of Attorney was not valid and upon the
dismissal of [Evans'] counterclaim for divorce. [Miller] previously
dismissed his Complaint for divorce.
The Court was informed that there have been numerous
filings since the closing of the case. None of these filings
appropriately opened a closed domestic relations case and
therefore the court does not have jurisdiction to address same.
All outstanding motions dismissed for lack of jurisdiction.
{¶10} In the instant appeal, Miller appeals from the trial court's judgment entries
of January 9 and February 18, 2015, arguing the trial court lacked jurisdiction to issue
both orders because the case was dismissed in its entirety as of January 8, 2015.
5The motion for sanctions was filed by attorney Warner Mendenhall on behalf of Evans and was served upon attorneys Susan Pucci Sutton and Craig Conley. Stark County, Case No. 2015CA00044 5
{¶11} In the related appeal, Evans appeals from the trial court's Judgment Entry
of February 18, 2015, arguing the motion for sanctions survived the dismissal and the
trial court should have held a hearing thereon.
{¶12} Miller raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶13} "I. AS TO THE TRIAL COURT'S JANUARY 9, 2015 JUDGMENT ENTRY,
IT ERRED IN PROCEEDING TO HEAR, AND THEN TO ADJUDICATE, AFTER
PLAINTIFF'S/APPELLANT'S COMPLAINT FOR DIVORCE HAD ALREADY BEEN
VOLUNTARILY DISMISSED, DEFENDANT'S/APPELLEE'S PRE-DISMISSAL MOTION
TO DETERMINE THE VALIDITY OF THE POWER OF ATTORNEY USED TO FILE
THE SAME COMPLAINT."
{¶14} "II. AS TO BOTH OF THE TRIAL COURT'S JANUARY 9, 2015 AND
FEBRUARY 18, 2015 JUDGMENT ENTRIES, IT ERRED IN CONTINUING TO
EXERCISE JURISDICTION AFTER THE ACTION BEFORE IT HAD ALREADY BEEN
VOLUNTARILY DISMISSED IN ITS ENTIRETY."
ANALYSIS
I., II.
{¶15} Miller's two assignments of error are related and will be considered
together. Miller contends the trial court was without jurisdiction to enter its judgment
entries of January 9 and February 18, 2015. Evans agrees but asserts the trial court Stark County, Case No. 2015CA00044 6
retained jurisdiction to rule on collateral matters including the motion for sanctions.6 We
agree the trial court had no jurisdiction to enter the judgment entries of January 9 and
February 18, 2015, and therefore reverse and vacate those judgment entries.
{¶16} A plaintiff's notice of voluntary dismissal made pursuant to Civ.R. 41(A)(1)
is self-executing; it requires no court action and is effective on the date of filing.
Brogdon v. Sibley Murray, LLC, 5th Dist. Stark No. 2009 CA 139, 2010-Ohio-539, ¶ 9,
citing James v. Allstate Ins. Co., 8th Dist. Cuyahoga No. 75993, 2000 WL 284221
(March 16, 2000). Generally, where a case has been voluntarily dismissed under Civ.R.
41(A)(1), the trial court patently and unambiguously lacks jurisdiction to proceed. See
State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853 at ¶
22. A voluntary dismissal divests the trial court of jurisdiction to make any entry on the
merits thereafter. Frazee v. Ellis Bros., 113 Ohio App.3d 828, 830, 682 N.E.2d 676 (5th
Dist.1996).
{¶17} Miller's dismissal of the complaint on October 22, 2014, followed by
Evans' voluntary dismissal of her counterclaim on January 8, 2015, divested the trial
court of jurisdiction to proceed. The findings entered in the January 9 and February 18,
2015 judgment entries are therefore dicta.
{¶18} Miller's two assignments of error are sustained to the extent that the trial
court was without jurisdiction to enter the Judgment Entries of January 9 and February
18, 2015. Those entries are therefore reversed and vacated. Consistent with our
6 In the related appeal, we found the trial court retained jurisdiction to decide the motion for sanctions and is required to hold a hearing thereon only if the court determines, in its discretion, the motion is of arguable merit. Robert Miller v. Nancy Evans, 5th Dist. Stark No. 2015CA00042, ---Ohio---, at ¶ 20. Stark County, Case No. 2015CA00044 7
findings in the related appeal, however, this matter is remanded to the trial court for
consideration of Evans' motion for sanctions.
CONCLUSION
{¶19} Miller's two assignments of error are sustained, the judgment of the Stark
County Court of Common Pleas, Family Court Division is reversed and vacated, and
this matter is remanded for further proceedings consistent with this opinion.
By: Delaney, J. and
Wise, P.J.
Baldwin, J., concur.