902 Carp Loveland, L.L.C. v. Potts

[Cite as 902 Carp Loveland, L.L.C. v. Potts, 2026-Ohio-1313.]




                                    IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




 902 CARP LOVELAND, LLC,                               :
                                                                CASE NO. CA2025-09-063
       Appellee,                                       :
                                                                    OPINION AND
 vs.                                                   :          JUDGMENT ENTRY
                                                                      4/13/2026
 NICOLE POTTS,                                         :

       Appellant.                                      :

                                                       :




             CIVIL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
                             Case No. 2025 CVG 02895



Becker & Cade, and Howard D. Cade III, for appellee.

Eppley Legal Group, and Mark C. Eppley, for appellant.



                                              ____________
                                             OPINION

         BYRNE, P.J.

         {¶ 1} Nicole Potts appeals the order of the Clermont County Municipal Court

adopting a magistrate's decision to dismiss the forcible entry and detainer action that 902
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Carp Loveland, LLC filed against her.1 For the reasons described below, we dismiss this

appeal for lack of a final appealable order.

                             I. Factual and Procedural Background

        {¶ 2} 902 Carp Loveland, LLC ("902 Carp") purchased the property at 902

Carpenter Road, Loveland, Clermont County, Ohio. Potts lived on that property in a trailer

for some time before 902 Carp purchased the property. 902 Carp understood that Potts

had a month-to-month tenancy on the property. On April 11, 2025, 902 Carp served Potts

with a thirty-day notice of the cancellation of her month-to-month tenancy, but Potts

refused to vacate. On June 4, 2025, 902 Carp served Potts with a three-day notice to

vacate but Potts again refused to vacate. On June 16, 2025, 902 Carp initiated a forcible

entry and detainer ("FED") action against Potts in the Clermont County Municipal Court.

        {¶ 3} On July 15, 2025, the magistrate held a hearing on the FED action. At the

hearing, Potts and Dennis Marksberry, the agent of 902 Carp, testified.

        {¶ 4} During cross-examination of Marksberry, Potts' counsel introduced as

evidence a document, executed on October 1, 2009, that indicated that Potts had a

"lifelong lease" on the property.2 The document stated: "I, Samuel C. Potts, Jr., enter a

contract with Nicole Flynn for the rental of 902 Carpenter Road in Loveland . . . I am

entering a lifelong lease in the amount of $1 per month for Nicole Flynn." (The record

indicates that "Nicole Potts" and "Nicole Flynn" are the same person.) Marksberry testified

that he was not aware of any lifelong lease on the property.

        {¶ 5} On August 1, 2025, the magistrate dismissed 902 Carp's FED action



1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar for purposes
of issuing this opinion.

2. Potts and the municipal court referred to the lease as a "lifelong lease," and did not use the term "life
estate." We need not explore the exact nature of the lease because, as previously mentioned, we find that
we lack jurisdiction to hear this appeal.
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"without prejudice." (Emphasis added.) The magistrate found that "Potts's lease [was]

defective" because it was not notarized or recorded as required pursuant to R.C. 5301.01

and R.C. 5301.25.3 The magistrate also found that instead of a lifelong lease, "Potts did

have a month-to-month tenancy" and that 902 Carp's three-day notice to vacate was

defective because the notice did not contain the mandatory language required by R.C.

1923.04.4

        {¶ 6} The municipal court judge appears to have adopted the magistrate's

decision on the same day it was filed, August 2, 2025. Then, on August 18, 2025, the

municipal court judge issued a second order again adopting the magistrate's decision, on

the basis that "[n]either party filed timely objections." But that same day, Potts filed

objections to the magistrate's decision. On September 2, 2025, Potts filed her notice of

appeal. Then, in a September 3, 2025 entry, and despite the filing of the notice of appeal,

the municipal court dismissed Potts' objections as untimely based on our holding, in

Suburban Realty L.P. v. MD Vape & Tobacco, L.L.C., that ". . . [T]he objection provisions

of Civ.R. 53(D)(3)(b) are, by their nature, 'clearly inapplicable' to FED proceedings due to

their summary nature." 2023-Ohio-3198, ¶ 30 (12th Dist.).

        {¶ 7} On appeal, Potts raises one assignment of error.

                                          II. Law and Analysis

        {¶ 8} Potts' sole assignment of error states:

                 THE TRIAL COURT ERRED IN FINDING THAT THE
                 APPELLANT'S LEASE (LIFE-LONG) WAS DEFECTIVE.

3. R.C. 5301.01(A) states that, "[a] deed, mortgage . . . or a lease of any interest in real property . . . shall
be signed by the grantor . . . or lessor . . . before a judge or clerk of a court of record in this state, or a
county auditor, county engineer, notary public, or mayor, who shall certify the acknowledgement and
subscribe the official's name to the certificate of the acknowledgement." (Emphasis added.) R.C.
5301.25(A) states that "[a]ll deeds, land contracts . . . and instruments of writing properly executed for the
conveyance or encumbrance of lands . . . shall be recorded in the office of the county recorder of the county
in which the premises are situated." (Emphasis added.)

4. Though the magistrate's decision was file-stamped on August 1, 2025, the magistrate's signature was
dated July 30, 2025.
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        {¶ 9} Though she was the prevailing party below, Potts argues that the municipal

court erred in adopting the magistrate's decision to dismiss 902 Carp's FED action against

her. While she does not challenge the dismissal of the FED action, she does challenge

the magistrate's finding that Potts' alleged lifelong lease was defective. Potts asks this

court to find her lifelong lease enforceable because, as she argues, the lease's lack of

notarization and recording do not bear on the enforceability of the lease. Potts also argues

that the alleged lifelong lease agreement is enforceable because she partially performed

the contract under the statute of frauds and because 902 Carp had constructive notice of

her possessory interest in the land.

        {¶ 10} However, we decline to reach the merits of Potts' arguments because the

municipal court's adoption of the magistrate's decision was not a final appealable order

pursuant to R.C. 2505.02, as explained below.

                        A. Background Law: Final Appealable Orders

        {¶ 11} "Appellate courts have jurisdiction over judgments or final orders of inferior

courts within their district." Smith v. Ironwood at Shaker Run Condominium Owners'

Assn., Inc., 2021-Ohio-346, ¶ 14 (12th Dist.), citing Ohio Const., art. IV, § 3(B)(2); R.C.

2505.03(A). "If an order is not final and appealable, then the appellate court has no

jurisdiction to review the matter and must dismiss the appeal." Smith at ¶ 14, citing

Carpenter v. Carpenter, 2013-Ohio-4980, ¶ 8 (12th Dist.). "'An order of a court is a final

appealable order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R.

54(B), are met.'"5 Duke Energy Ohio, Inc. v. City of Hamilton, 2018-Ohio-2821, ¶ 12 (12th

Dist.), quoting State ex rel. Scruggs v. Sadler, 2002-Ohio-5315, ¶ 5.




5. Civ.R. 54(B) applies to actions involving multiple claims and parties and is therefore inapplicable to this
case.
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                                                                    Clermont CA2025-09-063

       {¶ 12} R.C. 2505.02 provides that an order is final if it "affects a substantial right in

an action that in effect determines the action and prevents a judgment . . ." R.C.

2505.02(B)(1). "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.'" Duke at ¶ 13.

       {¶ 13} "Generally, where a cause is dismissed without prejudice and otherwise

than on the merits . . . the parties are left in the same position as if the plaintiff had never

brought the action" and "[t]herefore, a dismissal without prejudice is not a final

determination of the rights of the parties and does not constitute a final order pursuant to

R.C. 2505.02." (Emphasis added.) Showe Mgt. Corp. v. Wilmore, 2012-Ohio-3212, ¶ 23

(5th Dist.) citing Cent. Mut. Ins. Co., v. Bradford-White, 35 Ohio App.3d 26 (6th Dist.

1987); see also Duke at ¶ 15, quoting Natl. City Commercial Capital Corp. v. AAAA at

Your Serv., Inc., 2007-Ohio-2942, ¶ 8 ("'Ordinarily, a dismissal, otherwise than on the

merits does not prevent a party from refiling and, therefore, ordinarily, such dismissal is

not a final, appealable order.'").

                           B. Analysis: Final Appealable Order

       {¶ 14} Here, we lack jurisdiction to hear Potts' appeal because the municipal

court's order adopting the magistrate's decision dismissing 902 Carp's FED action without

prejudice was not a final appealable order. This is so because the decision and order did

not "determine" or "dictate" the fate of Potts' lease. After the court's order, Potts still lived

on the land as she had done before; therefore, Potts cannot say that the court's order

"affected" her "substantial rights." In other words, the municipal court's order did not have

a legal bearing on Potts' alleged lease, as she was in the same situation after dismissal

of the FED action as before 902 Carp initiated the FED action against her. Also, because

the dismissal of 902 Carp's FED action was without prejudice, Potts had the opportunity

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                                                                      Clermont CA2025-09-063

to relitigate her arguments about the validity of the "lifelong lease" in a subsequent action.6

       {¶ 15} Therefore, Potts did not appeal from a final order. Accordingly, we dismiss

her sole assignment of error for lack of jurisdiction.

       {¶ 16} Appeal dismissed.


        PIPER and M. POWELL, JJ., concur.



                              JUDGMENT ENTRY

      Upon consideration of the appeal and briefs before this court, and the above
Opinion, it is the order of this court that this appeal should be and hereby is dismissed
because the order appealed from is not a final appealable order. This Court is therefore
without jurisdiction.

       It is further ordered that a mandate be sent to the Clermont County Municipal Court
for execution upon this judgment and that a certified copy of this Opinion and Judgment
Entry shall constitute the mandate pursuant to App.R. 27.

       Costs to be taxed to appellant.



                                            /s/ Matthew R. Byrne, Presiding Judge



                                            /s/ Robin N. Piper, Judge



                                            /s/ Mike Powell, Judge




6 See 902 Carp Loveland, L.L.C. v. Potts, Clermont M.C. No. 2025-CVG-03928.


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