Capital One Bank v. Beaver

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[Cite as Capital One Bank v. Beaver, 2014-Ohio-3077.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO CAPITAL ONE BANK (USA), NA, Plaintiff-Appellee, : MEMORANDUM OPINION : CASE NO. 2014-P-0025 - vs - : FAY BEAVER, : Defendant-Appellant. : Civil Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2013 CVF 01976. Judgment: Appeal dismissed. Matthew G. Burg, Weltman, Weinberg & Reis Co., L.P.A., 323 West Lakeside Avenue, Suite 200, Cleveland, OH 44113 (For Plaintiff-Appellee). Fay Beaver, pro se, 10228 Wellington Road, Streetsboro, OH Appellant). 44241 (Defendant- DIANE V. GRENDELL, J. {¶1} On May 19, 2014, appellant, Fay Beaver, pro se, filed a notice of appeal from an April 15, 2014 entry of the Portage County Municipal Court, Ravenna Division. {¶2} A review of the record reveals that appellee, Capital One Bank (USA), NA, filed a complaint against appellant on July 15, 2013. After appellant filed her answer, appellee filed a motion for summary judgment, which the trial court granted on November 22, 2013. Thereafter, appellant filed a motion to set aside summary judgment, which trial court overruled on February 6, 2014. Appellant filed a motion to reconsider on March 4, 2014, which was overruled by the trial court on April 15, 2014. It is from that entry appellant filed the instant appeal. {¶3} Appellee filed a motion to dismiss the appeal on June 5, 2014. In its motion, appellee moves this court to dismiss appellant s notice of appeal as untimely filed pursuant to App.R. 4(A). Furthermore, appellee alleges that appellant s motion to reconsider was a nullity and that as a result, the April 15, 2014 entry denying the motion to reconsider was a nullity and should be dismissed. {¶4} Appellant filed no response to the motion to dismiss. {¶5} It is well established that a motion for reconsideration is not recognized under the Ohio Rules of Civil Procedure, and therefore, any judgment on such a motion is a nullity and cannot be appealed. Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 381 (1981); see also, Kuss v. Clements, 11th Dist. No. 2012-P-0023, 2012-Ohio-1678, at ¶ 4. Thus, the trial court s April 15, 2014 judgment entry in the instant matter overruling appellant s motion for reconsideration is itself a nullity and cannot be reviewed on appeal. {¶6} Furthermore, the filing of a motion for reconsideration does not extend the time for filing an appeal from a final judgment. Pitts at 380. An appeal from either the November 22, 2013 entry granting appellee s motion for summary judgment or the February 6, 2014 entry denying appellant s motion to set aside summary judgment, which are the only final appealable orders listed on the trial court docket, is untimely. {¶7} App.R. 4(A) requires a party to file a notice of appeal within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the 2 notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure. {¶8} App.R. 3(A) expressly states that the only jurisdictional requirement for the filing of a valid appeal is to file a notice of appeal within the time allowed by App.R. 4. The Supreme Court of Ohio has held that the failure to comply with time requirements of App.R. 4(A) is a jurisdictional defect, which is fatal to an appeal. In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, ¶ 17, citing State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60 (1988). {¶9} Civ.R. 58(B) directs the clerk of courts to serve the parties with notice of the judgment within three days of entering the judgment upon the journal. {¶10} Here, appellant has neither complied with the thirty-day rule set forth in App.R. 4(A) nor alleged that there was a failure by the trial court clerk to comply with Civ.R. 58(B). The time requirement is jurisdictional in nature and may not be enlarged by an appellate court. Pendell at 60; App.R. 14(B). {¶11} Based upon the foregoing, appellee s motion to dismiss is hereby granted, and this appeal is dismissed for lack of a final appealable order and untimeliness. {¶12} Appeal dismissed. CYNTHIA WESTCOTT RICE, J. THOMAS R. WRIGHT, J., concur. 3

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