Stein v. Wyandotte Wine Cellars, Inc. , 88 Ohio App. 3d 477 ( 1993 )

On June 24, 1992, Lisa N. Stein, d.b.a. Lazelle Street Graphics, filed an application to have the Franklin County Court of Common Pleas appoint an arbitrator to address issues stemming from a contract between Stein and Wyandotte Wine Cellars, Inc., d.b.a. Wyandotte Winery and Wm. Graystone Winery.

On July 17, 1992, the trial judge filed a decision indicating that the application should be denied. On the same day, the trial court filed a judgment entry which read:

"For the reasons stated in the court's decision of July 16, 1992, the application for appointment of an arbitrator pursuant to R.C. 2711.04, is DENIED."

On July 22, counsel for Stein filed a motion entitled "Motion to Reconsider." The body of the motion read:

"Counsel for plaintiff respectfully requests this Court to reconsider its July 16, 1992 Decision, because it has misunderstood the facts in this case."

The motion to reconsider did not refer to any of the Rules of Civil Procedure. The memorandum in support ended with the following sentence:

"Therefore, the Court is respectfully requested to review its July 16, 1992 Decision, and either order arbitration before the American Arbitration Association or select an arbitrator."

The trial court did not treat the motion as a nullity, but instead filed a decision which reached an opposite conclusion from its earlier decision. On August 21, 1992, the trial court filed two judgment entries, one purporting to sustain the motion to reconsider and one purporting to appoint an arbitrator. The record reveals several other filings thereafter.

On December 14, 1992, a notice of appeal was filed. The parties filed their respective briefs and waived oral argument. After the time set for oral argument, this court requested briefs from the parties on the issue of whether the filing of the motion to reconsider and other documents subsequent to that motion were a nullity. Counsel for Stein has filed a brief acknowledging that the Supreme Court of Ohio has repeatedly ruled that a motion for reconsideration following final judgment is a nullity. See, for instance, State ex rel. Pendell v. Adams Cty. Bd. of Elections (1988), 40 Ohio St. 3d 58,531 N.E.2d 713, and Pitts v. Dept. of Transp. (1981), 67 Ohio St. 2d 378, 21 O.O.3d 238, 423 N.E.2d 1105. However, we are requested to treat the motion as a motion for relief from judgment pursuant to Civ.R. 60(B).

Not surprisingly, counsel for Wyandotte Wine Cellars, Inc. has filed a brief indicating that the motion was a nullity and that the original judgment entry filed in July 1992 should stand.

Nothing in the body of the motion refers to Civ.R. 60(B). No affidavits or evidentiary material were appended to the motion. The motion simply indicates that the trial judge had misunderstood the situation and had reached the wrong result.

We are not inclined to treat the motion as anything other than what it claimed to be — a motion to reconsider. As a motion to reconsider filed in a trial court after final judgment has been rendered, the motion and all motions following it are a nullity.

We also choose to follow our own ruling in Ditmars v.Ditmars (1984), 16 Ohio App. 3d 174, 16 OBR 184, 475 N.E.2d 164. Since no notice of appeal was filed within the time allowed following the judgment entry of July 17, 1992, we are without subject matter jurisdiction to address the assigned errors. The appeal is therefore dismissed because of the lack of subject matter jurisdiction.

Appeal dismissed.

KERNS, J., concurs.

WHITESIDE, J., dissents.

JOSEPH D. KERNS, J., retired, of the Second Appellate District, was assigned to active duty under authority of Section6(C), Article IV, Ohio Constitution.