[Cite as Freedom Mtge. Corp. v. Hufford,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: FREEDOM MORTGAGE : Hon. W. Scott Gwin, P.J. CORPORATION : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J., Plaintiff-Appellant : : -vs- : Case No. 16-CA-72 : GORDON L. HUFFORD, ET AL : : OPINION Defendant-Appellee

CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court of Common Pleas, Case No. 2015 CV 00745

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: March 24, 2017

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

GREGORY STOUT DAVID WIGGINTON Reisenfeld & Associates Box 309 3962 Red Bank Road 32 North Park Place Cincinnati, OH 45227 Newark, OH 43055 Licking County, Case No. 16-CA-72 2

Gwin, P.J.

{¶1} Appellant appeals the August 11, 2016 judgment entry of the Licking County

Court of Common Pleas denying its motion to vacate dismissal.

Facts & Procedural History

{¶2} On September 2, 2015, appellant Freedom Mortgage Corporation filed a

complaint for foreclosure against appellee Gordon Hufford. The trial court issued a

foreclosure case management schedule on September 9, 2015, including dates for

discovery and dispositive motions. Additionally, the trial court set the matter for a final

pre-trial conference on June 8, 2016 and a trial to the court on July 6, 2016.

{¶3} On June 8, 2016, the trial court issued a judgment entry dismissing the case

for failure to prosecute. The trial court stated plaintiff failed to appear at the final pre-trial,

failed to notify the Court for its failure to appear, and thus the action was dismissed for

failure to prosecute. The trial court ordered the clerk of courts to serve a copy of the

judgment entry of dismissal on all parties or counsel, including the listed counsel for

plaintiff.

{¶4} Appellant filed a motion to vacate dismissal on July 27, 2016. Appellant

asserted in its motion that the dismissal entry of June 8th was a dismissal without

prejudice and thus, appellant moved the trial court to reconsider its dismissal. Appellant

stated it was not looking for relief pursuant to Civil Rule 60(B) since the dismissal order

was not a final appealable order. On August 11, 2016, the trial court issued a judgment

entry denying appellant’s motion to vacate dismissal. Licking County, Case No. 16-CA-72 3

{¶5} Appellant filed a notice of appeal appealing from the August 11, 2016

judgment entry denying its motion to vacate dismissal. Appellant assigns the following

as error:

{¶6} “THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S

COMPLAINT PURSUANT TO CIV.R. 41(B)(1).”

I.

{¶7} Also pending before this Court is appellee’s motion to dismiss the appeal

for lack of jurisdiction. In the motion to dismiss, appellee argues that appellant has failed

to file a timely appeal and/or, in the alternative, that this Court lacks jurisdiction because

appellant has appealed from a non-final order. Appellee’s motion to dismiss shall be

addressed in the following opinion.

{¶8} Appellant argues the trial court erred in dismissing its complaint pursuant to

Civ.R. 41(B)(1) as the trial court did not inform the parties that dismissal would be the

penalty imposed for the failure to comply with the deadlines and the trial court failed to

comply with the notice requirement contained in Civ.R. 41(B)(1) prior to dismissal.

Appellee does not dispute the trial court failed to comply with the notice requirement of

Civil Rule 41(B)(1). However, appellee contends the order at issue is not a final

appealable order.

Final Appealable Order

{¶9} Thus, as a preliminary matter, we must determine whether the order under

review is a final, appealable order. If an order is not final and appealable, then we have

no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.

Co. of N. America,

,

(1989). Licking County, Case No. 16-CA-72 4

{¶10} Ohio law provides that appellate courts have jurisdiction to review only final

orders or judgments. See, generally, Section 3(B)(2), Article IV, Ohio Constitution; R.C.

2505.02. To be final and appealable, an order must comply with R.C. 2505.02 and Civ.R.

54(B), if applicable. R.C. 2502.02(B) provides the following, in pertinent part:

(B) An order is a final order that may be reviewed, affirmed, modified, or

reversed, without or without retrial, when it is one of the following:

(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

(2) An order that affects a substantial right made in a special

proceeding or upon a summary application in an action after

judgment. * * *

{¶11} To qualify as final and appealable, the trial court’s order must satisfy the

requirements of R.C. 2505.02, and if the action involves multiple claims and/or multiple

parties and the order does not enter judgment on all the claims and/or as to all parties,

the order must also satisfy Civil Rule 54(B) by including express language that “there is

no just reason for delay.” Int’l. Brotherhood of Electrical Workers, Local Union No. 8 v.

Vaughn Indus., LLC,

,

,

. However,

we note that “the mere incantation of the required language does not turn an otherwise

non-final order into a final appealable order.” Noble v. Colwell,

,

(1989).

{¶12} Civil Rule 41(B)(1) provides, in pertinent part: “where the plaintiff fails to

prosecute, or comply with these rules or any court order, the court upon motion of a

defendant or on its own motion may, after notice to the plaintiff’s counsel, dismiss an Licking County, Case No. 16-CA-72 5

action or claim.” Civil Rule 41(B)(3) provides, “a dismissal under division (B) of this rule

* * * operates as an adjudication on the merits unless the court, in its order for dismissal,

otherwise specifies.” Thus, Civil Rule 41(B)(1) operates as an adjudication on the merits

unless otherwise specified by the court. Civil Rule 41(B)(3); Thillberg v. Major, 11th Dist.

Trumbull No. 90-T-4487,

(Sept. 30, 1991).

{¶13} The record in this case clearly indicates the complaint was dismissed for

failure to prosecute. Since the trial court did not state otherwise in its dismissal entry, the

dismissal for failure to prosecute is considered a dismissal with prejudice.

The effect

of the order was clear and the existence of the trial court’s alleged errors was apparent

from the day the order was filed. Regardless of whether it was procedurally proper, the

trial court’s entry clearly dismissed appellant’s complaint with prejudice. Thus, the June

8, 2016 judgment entry of dismissal was a final, appealable order. Accordingly, appellant

could have filed a timely appeal from that judgment entry of dismissal.

{¶14} Appellant instead filed a motion for reconsideration with the trial court on

July 27, 2016. However, as this Court has previously held, generally motions for

reconsideration to a trial court are only permissible to obtain relief from a non-final order.

Frabott v. Swaney, 5th Dist. Delaware No. 13 CAE 05 0047,

; Bringman

v. Bringman, 5th Dist. Knox No. 16CA01,

. 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). It follows that a judgment entered on a motion for reconsideration

is also a nullity and a party cannot appeal from such a judgment. Hall v. Hall, 5th Dist. Licking County, Case No. 16-CA-72 6

Stark No. 2012 CA 00123,

; Kauder v. Kauder,

,

(1974).

{¶15} The June 8, 2016 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 motion for reconsideration filed in this case was a nullity.

Accordingly, we find appellant’s present appeal of the judgment entry denying

reconsideration is not cognizable by this Court on direct appeal, and we are without

jurisdiction to further address its assignment of error.

Void Judgment

{¶16} For the first time in either the trial court case or the pending appeal,

appellant argues in its reply to appellee’s motion to dismiss that the June 8, 2016

judgment entry is void and thus the trial court had the inherent power to set aside the void

judgment through a motion to vacate. We first note that appellant failed to make this

argument to the trial court.

{¶17} However, even if we consider appellant’s argument, we find the argument

to be not well-taken. Appellant contends the trial court’s sua sponte dismissal of the

complaint without notice as required by Civil Rule 41(B)(1) was contrary to due process

and thus the judgment entry dismissing the case was void. We agree with appellant that

the authority to vacate a void judgment is not derived from Civil Rule 60(B) and is instead

an inherent power possessed by the trial court. Patton v. Diemer,

,

(1988); Davis v. Page, 5th Dist. Stark No. 2007 CA 00248,

.

A void judgment is one that is rendered by a court that is wholly without jurisdiction or Licking County, Case No. 16-CA-72 7

power to proceed in that manner. In re Lockhart,

,

(1952);

State v. Payne,

,

,

.

{¶18} However, we concur with appellee that the dismissal entry in this case is

voidable, not void. We find the cases cited by appellant to be distinguishable from the

instant case. In both Kingery’s Black Run Ranch, Inc. v. Kellough, 4th Dist. Ross No.

00CA2549,

(Dec. 18, 2001) and Boehm, Kurtz & Lowry v. Evans

Landscaping, Inc., 1st Dist. Hamilton No C-140597,

, the judgments

found to be void were default judgments granted sua sponte by the trial court even though

the adverse party had appeared in the case. The courts found that since the parties

appeared in the cases, in order to grant default, the moving party had to present a prima

facie case before the trial court.

Thus, a sua sponte default judgment was a void

judgment.

However, this case does not involve default and those cases are thus

distinguishable from the case at bar. See Northland Insurance Co. v. Poulos, 7th Dist.

Mahoning No. 06 MA 160,

.

{¶19} Rather, in a case with facts analogous to the instant case in which a trial

court dismissed a case with prejudice for the failure to prosecute pursuant to Civil Rule

41(B)(1) without the requisite notice, the Eleventh District Court of Appeals found, “even

if appellant is correct about the failure of the pre-dismissal notice, that failure merely

results in a ‘voidable’ judgment rather than a ‘void’ judgment.” Thillberg v. Major, 11th

Dist. Trumbull No. 90-T-4487,

(Sept. 30, 1991). Additionally, that “any

claimed errors regarding the final judgment of the trial court could have been appealed

within thirty days of that order.”

Similarly, the Seventh District Court of Appeals has

held, “typical due process violations, other than lack of personal jurisdiction, are voidable, Licking County, Case No. 16-CA-72 8

but not void.” Northland Insurance Co. v. Poulos, 7th Dist. Mahoning No. 06 MA 160,

. Further, “even if the trial court violated Civ.R. 41(B)(1) * * * appellant’s

remedy was an appeal of the judgment” and such a dismissal is not void, but is voidable.

{¶20} Accordingly, we find the judgment entry of dismissal in this case was

voidable, not void. The final judgment could have been appealed within thirty days of the

judgment entry issued on June 8, 2016.

{¶21} Based on the foregoing, we find the trial court’s August 11, 2016 order

denying the motion for reconsideration is not cognizable by this Court on direct appeal.

Therefore, this Court lacks jurisdiction to address appellant’s assignment of error.

Accordingly, the appeal is dismissed.

By Gwin, P.J.

Hoffman, J., and

Baldwin, J., concur