Geauga Sav. Bank v. Rivera

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[Cite as Geauga Sav. Bank v. Rivera, 2011-Ohio-3755.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO GEAUGA SAVINGS BANK, Plaintiff, : MEMORANDUM OPINION : CASE NO. 2011-G-3011 - vs - : ANA D. RIVERA, et al., Defendant-Appellee, LAWRENCE MICHAEL ALLEN, Defendant-Appellant. : : : : Civil Appeal from the Court of Common Pleas, Case No. 09 M 000716. Judgment: Appeal dismissed. Joel I. Newman, 18606 Parkland Drive, Shaker Heights, OH 44122 (For DefendantAppellee). Lawrence Michael Allen, pro se, 1344 West 78th Street, Cleveland, OH (Defendant-Appellant). 44102 TIMOTHY P. CANNON, P.J. {¶1} On March 31, 2011, appellant, Lawrence Michael Allen, pro se, filed a notice of appeal from a March 4, 2011 entry of the Geauga County Court of Common Pleas. In the March 4 entry, the trial court indicated that counsel for the Child Support Enforcement Agency ( CSEA ) shall prepare an entry consistent with what was stated in the March 4 entry for circulation and submission to the court. {¶2} On June 13, 2011, appellee, Ana D. Rivera, filed a motion to dismiss the appeal for lack of a final appealable order. Appellee alleges that the matter involves several other parties, all of whom have a claim against the real estate at issue. Furthermore, appellee explains that CSEA is to provide an order dealing with those claims. For those reasons, appellee argues that the entry appealed from is not a final order pursuant to R.C. 2505.02, and the appeal should therefore be dismissed. {¶3} On June 24, 2011, appellant filed a brief in opposition to the motion to dismiss. {¶4} A review of the docket reveals that appellant filed with the trial court a motion for new trial on March 18, 2011, before the notice of appeal was filed. It is wellsettled that when a motion for new trial precedes the filing of a notice of appeal, there is no final appealable order for the appellate court to review until the trial court rules on the motion. See Schausel v. Stevens, 4th Dist. No. 05CA10, 2006-Ohio-2482, at ¶6. {¶5} Furthermore, App.R. 4(B)(2) states: {¶6} *** In a civil case or juvenile proceeding, if a party files a timely motion for judgment under Civ.R. 50(B), a new trial under Civ.R. 59(B), vacating or modifying a judgment by an objection to a magistrate s decision under Civ.R. 53(D)(4)(e)(i) or (ii) or Rule 40(D)(4)(e)(i) or (ii) of the Ohio Rules of Juvenile Procedure, or findings of fact and conclusions of law under Civ.R. 52, the time for filing a notice of appeal begins to run as to all parties when the order disposing of the motion is entered. {¶7} Therefore, only after the trial court disposes of the motion for a new trial will we have jurisdiction over any possible subsequent appeal. To date, the motion for new trial has not been ruled upon by the trial court. 2 {¶8} Additionally, the trial court ordered in the March 4, 2011 judgment entry that counsel for CSEA shall prepare an entry for circulation and submission to the court, which has not yet been filed with the trial court. Therefore, it is readily apparent from the language in the March 4 entry that something more is to follow. Dorsey v. Dorsey, 11th Dist. No. 2009-T-0027, 2009-Ohio-3934, at ¶5. Since no such entry has been filed with the trial court, the order appellant appealed from is simply an interlocutory order and not final. Appellant will have a meaningful and effective remedy by way of an appeal once a final judgment is reached as to all claims and parties when the case is decided and/or dismissed. See Johnson v. Warren Police Dept., 11th Dist. No. 2005-T-0117, at ¶14. {¶9} Accordingly, based on the foregoing analysis, appellee s motion to dismiss is granted. This appeal is hereby dismissed for lack of a final appealable order. {¶10} Appeal dismissed. DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., concur. 3

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