Francis v. Akron Metro. Hous. Auth. , 2018 Ohio 4979 ( 2018 )

[Cite as Francis v. Akron Metro. Hous. Auth., 2018-Ohio-4979.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
ROGER FRANCIS C.A. No. 28738
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
AKRON METROPOLITAN HOUSING BARBERTON MUNICIPAL COURT
AUTHORITY COUNTY OF SUMMIT, OHIO
CASE No. CVR 1600001
Appellee
DECISION AND JOURNAL ENTRY
Dated: December 12, 2018
TEODOSIO, Judge.
{¶1} Mr. Roger Francis appeals the order of the Barberton Municipal Court entered on
June 13, 2017. We dismiss for lack of jurisdiction.
{¶2} Mr. Francis initiated this matter in the Barberton Municipal Court by filing a
request for emergency rental escrow in October 2016. On April 25, 2017, a magistrate’s order
was issued to release the escrowed rent to Mr. Francis, and on May 8, 2017, the trial court
adopted the magistrate’s order and entered judgment. The trial court’s docket entry listing
indicates that notice pursuant to Civ.R. 58(B) was issued to the parties on May 9, 2017.
{¶3} A document dated May 9, 2017, and time-stamped on May 10, 2017, was filed by
Mr. Francis “pursuant to Civ. R. 53 (D)(3)(b),” and purported to be “an appeal to the ‘Release Of
Funds With Prejudice’, [sic] tied to Magistrate Peck’s 4/25/17 filing * * *.” We note that
Civ.R.53(D)(3)(b) sets forth the procedures for filing objections to a magistrate’s decision. On
May 10, 2017, the trial court denied Mr. Francis’ “‘appeal’ (or objection to the Magistrate’s
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order) * * *,” and stated that the magistrate’s order “approved and adopted on May 8, 2017, shall
remain in effect.” Two documents captioned as “requests for reconsideration” were filed by Mr.
Francis and his wife on June 6, 2017, and June 7, 2017. The trial court denied the requests on
June 12, 2017, and June 13, 2017, respectively.
{¶4} On July 17, 2017, Mr. Francis filed a document captioned as an “Appeal
Submission.” The document, addressed to the trial court judge, requests submission to the Ninth
District Court of Appeals for the appeal of the trial court’s June 13, 2017, order. On July 31,
2017, Mr. Francis filed a notice of appeal “from the final judgment entered in this action on June
13, 2017.”
{¶5} It is well-established that “[a] motion to reconsider after a final judgment is a
nullity, and all judgments from such motions to reconsider are nullities.” State v. Kirk, 9th Dist.
Lorain No. 15CA010896, 2016-Ohio-6970, ¶ 7. See also Tucker v. Dennis Baughman Co., 9th
Dist. Summit Nos. 26620 and 26635, 2014-Ohio-2040, ¶ 7. The order of June 13, 2017, from
which Mr. Francis appeals, and as specified in his notice of appeal, was a nullity, as were the two
motions for reconsideration. We conclude the trial court’s order of June 13, 2017, denying Mr.
Francis’ motion for reconsideration was not a final, appealable order, and therefore, this Court is
without jurisdiction. See Finley & Sons Builders, Inc. v. Cross, 9th Dist. Summit No. 23738,
2007-Ohio-7037, ¶ 5.
{¶6} Even if we were to construe this appeal as relating to the trial court’s final,
appealable order entered on May 8, 2017, or to the order of May 10, 2017, which denied Mr.
Francis’ objection to the magistrate’s decision, we would not have jurisdiction. Pursuant to
App.R. 4(A)(1), “a party who wishes to appeal from an order that is final upon its entry shall file
the notice of appeal required by App.R. 3 within 30 days of that entry.” Under App.R.
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4(B)(2)(c), if a party files “timely and appropriate” objections to a magistrate’s decision, “then
the time for filing a notice of appeal from the judgment or final order in question begins to run as
to all parties when the trial court enters an order resolving the last of these post-judgment
filings.”
{¶7} Although the timely and appropriate filing of objections to a magistrate’s decision
tolls the time for filing a notice of appeal under App.R. 4(B)(2)(c), there is no such provision to
allow for the tolling of time upon a motion for reconsideration. Furthermore, as noted above “[a]
motion to reconsider after a final judgment is a nullity, and all judgments from such motions to
reconsider are nullities.” Kirk at ¶ 7. Mr. Francis filed his notice of appeal on July 31, 2017, and
therefore failed to file it within 30 days of a final, appealable order.
{¶8} Mr. Francis’ attempted appeal is dismissed for lack of jurisdiction.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
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SCHAFER, P. J.
CARR, J.
CONCUR.
APPEARANCES:
ROGER FRANCIS, pro se, Appellant.
JAMES D. CASEY, Attorney at Law, for Appellee.