LONGO v. LONGO, 2010-G-2998 (3-18-2011)

Factual and Procedural Background

On November 8, 2010, Charles V. Longo (appellant) filed a notice of appeal from three separate October 15, 2010 entries of the Geauga County Court of Common Pleas. The underlying matter involved appellant's attempts to remove the guardian ad litem, Jeffrey T. Orndorff. On March 18, 2010, appellant filed a motion to remove the guardian ad litem, which was denied by the magistrate on May 21, 2010. Appellant filed objections to this decision on May 28, 2010, and subsequently filed a supplemental motion to remove the guardian ad litem on August 5, 2010. The trial court denied the supplemental motion and overruled appellant's objections in two separate entries dated October 15, 2010. Additionally, the court denied appellant's request for a ruling on objections to the magistrate's denial as moot on the same date.

Arguments of the Parties

Appellee's Arguments

The orders appealed from are not final and appealable.

The denial of a request to remove a guardian ad litem does not affect a substantial right.

Therefore, the denial is not a final appealable order under Ohio law.

Appellant's Arguments

The entries appealed from affect the substantial rights of the parties and their children.

Consequently, the entries should be considered final and appealable.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Germ v. Fuerst, 11th Dist. No. 2003-L-116, 2003-Ohio-6241	Defines that appellate jurisdiction requires a "final order" under Ohio Constitution, Article IV, Section 3(B)(2).	Used to establish the necessity of a final order for appellate review.
Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17 (1989)	Confirms that appellate courts lack jurisdiction if the order appealed is not final.	Supports dismissal of appeal for lack of final appealable order.
Davis v. Lewis, 10th Dist. No. 99AP-814, 2000 Ohio App. LEXIS 5747	Holds that a motion to remove a guardian ad litem and the denial thereof are not final appealable orders.	Directly cited to conclude the denial of removal motion is not final and appealable.
Lisboa v. Lisboa, 8th Dist. No. 92636, 2009-Ohio-5565	Supports the principle that denial of guardian ad litem removal is not a final appealable order.	Used as additional authority confirming the non-final nature of the order.

Precedent

Rule or Principle Cited For

Application by the Court

Germ v. Fuerst, 11th Dist. No. 2003-L-116, 2003-Ohio-6241

Defines that appellate jurisdiction requires a "final order" under Ohio Constitution, Article IV, Section 3(B)(2).

Used to establish the necessity of a final order for appellate review.

Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17 (1989)

Confirms that appellate courts lack jurisdiction if the order appealed is not final.

Supports dismissal of appeal for lack of final appealable order.

Davis v. Lewis, 10th Dist. No. 99AP-814, 2000 Ohio App. LEXIS 5747

Holds that a motion to remove a guardian ad litem and the denial thereof are not final appealable orders.

Directly cited to conclude the denial of removal motion is not final and appealable.

Lisboa v. Lisboa, 8th Dist. No. 92636, 2009-Ohio-5565

Supports the principle that denial of guardian ad litem removal is not a final appealable order.

Used as additional authority confirming the non-final nature of the order.

Court's Reasoning and Analysis

The court analyzed whether the denial of the motion to remove the guardian ad litem constitutes a final appealable order under Ohio law. It emphasized that under Section 3(B)(2), Article IV of the Ohio Constitution, appellate review is limited to final orders. The court referenced R.C. 2505.02(B), which enumerates seven categories of final orders. The denial of the motion to remove the guardian ad litem did not satisfy any of these categories. The court relied on precedent from the Tenth District, specifically Davis v. Lewis, which held that such orders are not final and appealable. Since other issues remained pending before the trial court, the court concluded that the orders appealed from were not final. Consequently, the appellate court lacked jurisdiction and was compelled to dismiss the appeal.

Holding and Implications

Holding: The appeal is DISMISSED for lack of a final appealable order.

Implications: The decision directly affects the parties by terminating the appellate review of the denial to remove the guardian ad litem at this stage. The court did not set new precedent but reaffirmed established principles limiting appellate jurisdiction to final orders under Ohio law.

Charles V. Longo, Plaintiff-Appellant, v. Joy E. Longo, Defendant-Appellee.

MEMORANDUM OPINION

CYNTHIA WESTCOTT RICE, J.

{¶ 1} On November 8, 2010, appellant, Charles V. Longo, filed a notice of appeal from three separate October 15, 2010 entries of the Geauga County Court of Common Pleas.

{¶ 2} The docket in this matter reveals that on March 18, 2010, appellant filed a motion to remove the guardian ad litem, Jeffrey T. Orndorff. On May 21, 2010, the magistrate issued his decision denying appellant's motion to remove the guardian ad litem. On May 28, 2010, appellant filed objections to the magistrate's decision. Thereafter, on August 5, 2010, appellant filed a supplemental motion to remove the guardian ad litem. On October 15, 2010, the trial court denied the supplemental motion to remove guardian filed by appellant. In a second entry dated October 15, 2010, the trial court overruled appellant's objections to the May 21, 2010 magistrate's decision. Lastly, in a third entry, also dated October 15, 2010, the trial court denied for mootness, appellant's request for a ruling on his objections to the magistrate's denial of the motion to remove the guardian ad litem.

{¶ 3} On December 16, 2010, appellee, Joy E. Longo, filed a "Motion to Dismiss Appeal." In her motion, appellee asserts that the orders appealed from are not final and appealable. Appellee argues that the denial of a request to remove a guardian ad litem does not affect a substantial right and is not a final appealable order.

{¶ 4} Appellant filed a brief in opposition to the motion to dismiss on January 3, 2011, in which he posits that the entries appealed from affect the substantial rights of the parties and their children. Appellant therefore argues that the entries appealed from are final and appealable.

{¶ 5} We must determine whether the denial of a motion to remove a guardian ad litem is a final appealable order. According to Section 3(B)( 2), Article IV of the Ohio Constitution, a judgment of a trial court can be immediately reviewed by an appellate court only if it constitutes a "final order" in the action. Germ v. Fuerst, 11th Dist. No. 2003-L-116, 2003-Ohio-6241, ¶ 3. If a lower court's order is not final, then an appellate court does not have jurisdiction to review the matter and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20. {¶ 6} Pursuant to R.C. 2505.02(B), there are seven categories of a "final order," and if a trial court's judgment satisfies any of them, it will be considered a "final order" which can be immediately appealed and reviewed by a court of appeals.

{¶ 7} R.C. 2505.02(B) states that:

{¶ 8} "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:

{¶ 9} "(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;

{¶ 10} "(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;

{¶ 11} "(3) An order that vacates or sets aside a judgment or grants a new trial;

{¶ 12} "(4) An order that grants or denies a provisional remedy and to which both of the following apply:

{¶ 13} "(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.

{¶ 14} "(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.

{¶ 15} "(5) An order that determines that an action may or may not be maintained as a class action;

{¶ 16} "(6) An order determining the constitutionality of any changes to the Revised Code * * *;

{¶ 17} "(7) An order in an appropriation proceeding ***." {¶ 18} In the case at hand, the denial of appellant's motion to remove the guardian ad litem does not fall under any of the categories for being a final order pursuant to R.C. 2505.02(B). The Tenth District Court of Appeals has stated that "[a] motion to remove the guardian ad litem, and the trial court's decision denying it, are not final appealable orders as they also do not fit within any of the definitions of a final appealable order set forth in R.C. 2505.02(B)." Davis v. Lewis (Dec. 12, 2000), 10th Dist. No. 99AP-814, 2000 Ohio App. LEXIS 5747, at *8. See, also, Lisboa v. Lisboa, 8th Dist. No. 92636, 2009-Ohio-5565, at ¶ 7, fn.1.

{¶ 19} Here, appellant is attempting to appeal the denial of his motion to remove the guardian ad litem even though there are still other issues pending before the trial court. Therefore, the orders appealed from are not final and appealable.

{¶ 20} Accordingly, appellee's motion to dismiss is granted, and this appeal is hereby dismissed for lack of a final appealable order.

{¶ 21} Appeal dismissed.

TIMOTHY P. CANNON, P.J., MARY JANE TRAPP, J., concur.