In re A.I.
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[Cite as In re A.I., 2003-Ohio-2741.] COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 81804 IN RE: A.I. DATE OF ANNOUNCEMENT OF DECISION : : : : : : : : : : JOURNAL ENTRY AND OPINION : MAY 29, 2003 CHARACTER OF PROCEEDINGS : : : : Civil appeal from the Common Pleas Court Juvenile Court Division Case No. 00901278 JUDGMENT : DISMISSED. DATE OF JOURNALIZATION : APPEARANCES: For appellee, Cuyahoga County Department of Children and Family Services: William D. Mason, Esq. Cuyahoga County Prosecutor BY: Joseph C. Young, Esq. Assistant County Prosecutor 3343 Community College Avenue Corridor F Cleveland, Ohio 44115 Amy L. Carson, Esq. 2 Cuyahoga County Department of Children and Family Services 3955 Euclid Avenue Cleveland, Ohio 44115 -CONTINUEDCONTINUED: For appellant, J.I., Father: Ruth Fischbein-Cohen, Esq. 3552 Severn Road Suite 613 Cleveland Heights, Ohio 44118 MICHAEL J. CORRIGAN, J.: {¶1} By agreement of the parties, the juvenile division ordered that the child A.I. be placed into a planned permanent living arrangement with the foster parents with whom she had resided for over one year. The child s father then filed a motion for a new trial in which he argued that he did not intend to waive his right to a trial on the custody issue. The court denied the motion and the father appealed, complaining that he did not make a knowing choice to agree to the living arrangement. We do not reach the merits of the appeal because the father s failure to file a timely appeal deprives us of jurisdiction. {¶2} App.R. 4(A) requires a party to file an appeal within thirty days of a judgment. This time limit is jurisdictional. See Kaplysh v. Takieddine (1988), 35 Ohio St.3d 170, paragraph one of the syllabus; Ditmars v. Ditmars (1984), 16 Ohio App.3d 174. {¶3} Although the juvenile division commenced trial on the agency s motion for permanent custody, the parties settled the 3 matter after the testimony of only one witness, with the father agreeing to permit the child to enter a planned permanent living arrangement. The father apparently had second thoughts about the settlement, however, and filed a motion for a new trial. This motion was an obvious nullity since there had been no trial. In a related situation, the Ohio Supreme Court held that a motion for a new trial which questions the granting of a summary judgment is a nullity and not proper: The application of App. R. 4(A) does not take effect, and, therefore, the filing of the motion for a new trial does not toll the time for filing the notice of appeal from the summary judgment. L.A.&D., Inc. v. Bd. of Lake Cty. Commrs. (1981), 67 Ohio St.2d 384, 387. The proper method of attacking a settlement agreement entered into during the midst of trial would have been by a Civ.R. 60(B) motion to vacate the settlement agreement. See Grossman v. Hawk Mfg. Co. (Dec. 29, 1992), Franklin App. No. 92AP-1026. {¶4} With the motion for a new trial being a nullity, the father had to file a notice of appeal within thirty days of signing the settlement agreement. Because he did not do so, we lack jurisdiction to hear this appeal. Dismissed. [Cite as In re A.I., 2003-Ohio-2741.] This appeal is dismissed. It is ordered that appellee recover of appellant its costs herein taxed. It is ordered that a special mandate issue out of this court directing the Common Pleas Court Juvenile Court Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MICHAEL J. CORRIGAN JUDGE KENNETH A. ROCCO, A.J., CONCURS. *JOSEPH J. NAHRA, J., CONCURS WITH SEPARATE CONCURRING OPINION. (*SITTING BY ASSIGNMENT: Judge Joseph J. Nahra, Retired, of the Eighth District Court of Appeals). JOSEPH J. NAHRA, J., CONCURRING: {¶5} I agree that the filing of the motion for a new trial was a nullity since the matter was concluded by a settlement. Had we considered the trial court s denial of the motion for a new trial on its merits, I believe the result would be that appellant failed to show any abuse of discretion by the trial court in refusing to grant him a new trial. [Cite as In re A.I., 2003-Ohio-2741.]
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