[Cite as Frabott v. Swaney,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

CURTIS FRABOTT JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellant Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 13 CAE 05 0047 SHEREE D. SWANEY, et al.

Defendants-Appellees OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 10 CVE 09 1302

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: July 30, 2013

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

DAVE LACKEY JAMES D. GILBERT SCHERNER & SYBERT 425 Metro Place North 153 South Liberty Street Suite 460 Powell, Ohio 43065 Dublin, Ohio 43017 Delaware County, Case No. 13 CAE 05 0047 2

Wise, J.

{¶1} This is an appeal by Plaintiff-Appellant Curtis Frabott from the April 22,

2013, Judgment Entry of the Delaware County Common Pleas Court granting

Defendants-Appellees Sheree D. Swaney and William Swaney’s motion for

reconsideration.

{¶2} This case comes to us on the accelerated calendar. App.R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

{¶3} “(E) Determination and judgment on appeal. The appeal will be

determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.

12(A) for the statement of the reason for the court’s decision as to each error to be in

brief and conclusionary form. The decision may be by judgment entry in which case it

will not be published in any form.”

{¶4} This appeal shall be considered in accordance with the aforementioned

rule.

STATEMENT OF THE FACTS AND CASE

{¶5} The relevant facts are as follows:

{¶6} This case originally involved construction work by Appellant Frabott at the

home of Appellees Sheree and William Swaney. A dispute arose during the

construction, causing construction on the project to terminate. Frabott recorded a

Mechanics’ Lien against the property and initiated an action for foreclosure, breach of

contract and unjust enrichment. The Swaneys filed an Answer and Counterclaim

alleging they were damaged.

{¶7} A bench trial was held on December 13 and 14, 2011. Delaware County, Case No. 13 CAE 05 0047 3

{¶8} By Judgment Entry filed January 10, 2012, the trial court found in favor of

Frabott and against the Swaneys for $518.16 and costs. The trial court also declared

Frabott’s mechanics’ lien was void.

{¶9} Neither party appealed the January 10, 2012, judgment.

{¶10} On January 27, 2012, Appellant Frabott filed a Motion for

Reconsideration.

{¶11} On February 10, 2012, Appellees filed their response to Appellant’s

Motion for Reconsideration, which also raised their own specific requests for Motion for

Reconsideration.

{¶12} By Judgment Entry filed April 22, 2013, the trial court ruled on the motions

for reconsideration, reversing its prior entry and rendering judgment in favor of the

Swaneys and against Frabott in the amount of $5,481.84.

{¶13} Appellant Frabott now appeals, assigning the following errors for review:

ASSIGNMENT OF ERROR

{¶14} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT RULED UPON MOTIONS FOR RECONSIDERATION AFTER A FINAL JUDGMENT

HAD BEEN RENDERED IN THE CASE.”

I.

{¶15} In his sole Assignment of Error, Appellant argues that the trial court erred

in ruling on the motions for reconsideration after a final judgment had been made in this

case.

{¶16} Before we reach the merits of Appellant’s Assignment of Error, this Court

must first consider its jurisdiction to hear the present appeal. Delaware County, Case No. 13 CAE 05 0047 4

{¶17} Initially, we must address the threshold issue of whether the judgment

entry appealed is a final, appealable order. Generally, motions for reconsideration to a

trial court are only permissible to obtain relief from a non-final order. See McGee v.

Lynch, Erie App.No. E–06–063, 2007–Ohio–3954, ¶ 27. The Ohio Civil Rules do not

provide for motions for reconsideration after a final judgment. Therefore such a motion

is considered a nullity. Pitts v. Dept. of Transportation (1981),

,

.

{¶18} The foremost issue at this juncture is therefore to determine whether the

trial court's January 10, 2012, Judgment Entry constituted a final appealable order.

{¶19} Appellate courts have no “jurisdiction to review an order that is not final

and appealable.” Oakley v. Citizens Bank of Logan, 4th Dist. No. 04CA25, 2004–Ohio–

6824, ¶ 6; citing Section 3(B)(2), Article IV of the Ohio Constitution; General Acc. Ins.

Co. v. Ins. Co. of N. America,

,

(1989); Noble v.

Colwell,

,

(1989). Further, “[a] trial court's finding that

its judgment is a final appealable order is not binding upon this court.” In re Nichols, 4th

Dist. No. 03CA41, 2004–Ohio–2026, ¶ 6; citing Ft. Frye Teachers Assn. v. Ft. Frye

Local School Dist. Bd. of Edn.,

,

(1993);

citing Pickens v. Pickens, 4th Dist. No. 459,

(Aug. 27, 1992). This

court has “no choice but to sua sponte dismiss an appeal that is not from a final

appealable order.” Id. at ¶ 6, citing Whitaker–Merrell Co. v. Geupel Constr. Co.,

,

(1972).

{¶20} To be appealable, an order must be a final order, within the meaning of

R.C. §2505.02. Delaware County, Case No. 13 CAE 05 0047 5

{¶21} “An 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” or “[a]n order

that affects a substantial right made in a special proceeding[ .]” R.C. §2505.02(B). “A

final order * * * is one disposing of the whole case or some separate and distinct branch

thereof.” Lantsberry v. Tilley Lamp Co.,

,

(1971).

An order adjudicating “one or more but fewer than all the claims or the rights and

liabilities of fewer than all the parties must meet the requirements of R.C. 2505.02 and

Civ. R. 54(B) in order to be final and appealable.” Noble at syllabus.

{¶22} In this case, we find the trial court’s January 10, 2012, entry disposes of

the entire case.

{¶23} Appellees herein argue the 2012 Judgment Entry was not a final,

appealable order because Appellant requested attorney fees in his Complaint, and the

2012 Entry did not address fees or dispose of the issue.

{¶24} The Supreme Court of Ohio has held that “ ‘[w]hen attorney fees are

requested in the original pleadings, an order that does not dispose of the attorney-fee

claim * * * is not a final, appealable order.’ “ Internatl. Bhd. of Electrical Workers, Local

Union No. 8 v. Vaughn Industries, L.L.C.,

, 2007–Ohio–6439,

, paragraph two of the syllabus. However, in this case, we find that the

attorney fee request was made pursuant to R.C. §1311.16, the fee request was

overruled sub silento when the trial court declared the mechanics lien void and of no

real effect. Delaware County, Case No. 13 CAE 05 0047 6

{¶25} Appellees also argue the 2012 Judgment Entry fails to state that it is the

final judgment in this matter.

{¶26} ‘An order which adjudicates one or more but fewer than all the claims or

the rights and liabilities of fewer than all the parties must meet the requirements of

[both] R.C. §2505.02 and Civ.R. 54(B) in order to be final and appealable.’ ” Reagan v.

Ranger Transp.,

,

(11th Dist. 1995), quoting

Noble v. Colwell,

,

(1989).

{¶27} As stated above, we find that the 2012 Judgment Entry did dispose of all

claims, rendering Civ.R. 54(B) inapplicable in the instant case.

{¶28} Based on the foregoing, we find that the January 10, 2012, Judgment

Entry was a final, appealable order. As stated above, the Ohio Civil Rules do not

provide for motions for reconsideration after a final judgment, therefore the motions for

reconsideration filed in this case were nullity. Pitts v. Dept. of Transportation, supra. It

follows that a judgment entered on a motion for reconsideration is also a nullity and a

party cannot appeal from such a judgment. Kauder v. Kauder (1974),

,

; George v. Parker (Sept. 10, 1999), Fairfield App. No. 99CA3. Delaware County, Case No. 13 CAE 05 0047 7

{¶29} This appeal of the judgment of the Court of Common Pleas of Delaware

County, Ohio, is dismissed for lack of jurisdiction.

By: Wise, J.

Farmer, J., concurs.

Hoffman, P. J., concurs in part and dissents in part.

s/s/ John W. Wise HON. JOHN W. WISE

s/s/ William B. Hoffman HON. WILLIAM B. HOFFMAN

s/s/ Sheila G. Farmer HON. SHEILA G. FARMER

JWW/d 0718 Delaware County, Case No. 13 CAE 05 0047 8

Hoffman, P.J., concurring in part and dissenting in part

{¶30} I concur in the majority’s conclusion the January 10, 2012 Judgment Entry

was a final appealable order. I further concur with the majority a motion for

reconsideration of a final appealable order is a nullity.

{¶31} My disagreement lies in the majority’s conclusion the trial court’s granting

of a null motion for reconsideration is also a nullity from which no appeal lies. While I

agree the trial court erred in considering the motions for reconsideration, nevertheless it

entered judgment thereon. To say no appeal can be taken and order dismissal of the

appeal arguably leaves the parties in limbo as to which entry is enforceable.

{¶32} I suggest the better alternative would be to vacate the trial court’s April 22,

2013 Judgment Entry, thereby effectively reinstating the January 10, 2012 Judgment

Entry as the final order of the trial court.

s/s William B. Hoffman HON. WILLIAM B. HOFFMAN Delaware County, Case No. 13 CAE 05 0047 9

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

CURTIS FRABOTT : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : SHEREE D. SWANEY, et al. : : Defendants-Appellees : Case No. 13 CAE 05 0047

For the reasons stated in our accompanying Memorandum-Opinion, the appeal

of judgment of the Court of Common Pleas of Delaware County, Ohio, is dismissed.

Costs assessed to Appellant.

s/s/ John W. Wise HON. JOHN W. WISE

s/s/ William B. Hoffman HON. WILLIAM B. HOFFMAN

s/s/ Sheila G. Farmer HON. SHEILA G. FARMER