[Cite as Frabott v. Swaney, 2013-Ohio-3354.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
CURTIS FRABOTT JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellant Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 13 CAE 05 0047 SHEREE D. SWANEY, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 10 CVE 09 1302
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: July 30, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
DAVE LACKEY JAMES D. GILBERT SCHERNER & SYBERT 425 Metro Place North 153 South Liberty Street Suite 460 Powell, Ohio 43065 Dublin, Ohio 43017 Delaware County, Case No. 13 CAE 05 0047 2
Wise, J.
{¶1} This is an appeal by Plaintiff-Appellant Curtis Frabott from the April 22,
2013, Judgment Entry of the Delaware County Common Pleas Court granting
Defendants-Appellees Sheree D. Swaney and William Swaney’s motion for
reconsideration.
{¶2} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
{¶3} “(E) Determination and judgment on appeal. The appeal will be
determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.
12(A) for the statement of the reason for the court’s decision as to each error to be in
brief and conclusionary form. The decision may be by judgment entry in which case it
will not be published in any form.”
{¶4} This appeal shall be considered in accordance with the aforementioned
rule.
STATEMENT OF THE FACTS AND CASE
{¶5} The relevant facts are as follows:
{¶6} This case originally involved construction work by Appellant Frabott at the
home of Appellees Sheree and William Swaney. A dispute arose during the
construction, causing construction on the project to terminate. Frabott recorded a
Mechanics’ Lien against the property and initiated an action for foreclosure, breach of
contract and unjust enrichment. The Swaneys filed an Answer and Counterclaim
alleging they were damaged.
{¶7} A bench trial was held on December 13 and 14, 2011. Delaware County, Case No. 13 CAE 05 0047 3
{¶8} By Judgment Entry filed January 10, 2012, the trial court found in favor of
Frabott and against the Swaneys for $518.16 and costs. The trial court also declared
Frabott’s mechanics’ lien was void.
{¶9} Neither party appealed the January 10, 2012, judgment.
{¶10} On January 27, 2012, Appellant Frabott filed a Motion for
{¶11} On February 10, 2012, Appellees filed their response to Appellant’s
Motion for Reconsideration, which also raised their own specific requests for Motion for
{¶12} By Judgment Entry filed April 22, 2013, the trial court ruled on the motions
for reconsideration, reversing its prior entry and rendering judgment in favor of the
Swaneys and against Frabott in the amount of $5,481.84.
{¶13} Appellant Frabott now appeals, assigning the following errors for review:
ASSIGNMENT OF ERROR
{¶14} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT RULED UPON MOTIONS FOR RECONSIDERATION AFTER A FINAL JUDGMENT
HAD BEEN RENDERED IN THE CASE.”
I.
{¶15} In his sole Assignment of Error, Appellant argues that the trial court erred
in ruling on the motions for reconsideration after a final judgment had been made in this
case.
{¶16} Before we reach the merits of Appellant’s Assignment of Error, this Court
must first consider its jurisdiction to hear the present appeal. Delaware County, Case No. 13 CAE 05 0047 4
{¶17} Initially, we must address the threshold issue of whether the judgment
entry appealed is a final, appealable order. Generally, motions for reconsideration to a
trial court are only permissible to obtain relief from a non-final order. See McGee v.
Lynch, Erie App.No. E–06–063, 2007–Ohio–3954, ¶ 27. The Ohio Civil Rules do not
provide for motions for reconsideration after a final judgment. Therefore such a motion
is considered a nullity. Pitts v. Dept. of Transportation (1981), 67 Ohio St.2d 378, 423
N.E.2d 1105.
{¶18} The foremost issue at this juncture is therefore to determine whether the
trial court's January 10, 2012, Judgment Entry constituted a final appealable order.
{¶19} Appellate courts have no “jurisdiction to review an order that is not final
and appealable.” Oakley v. Citizens Bank of Logan, 4th Dist. No. 04CA25, 2004–Ohio–
6824, ¶ 6; citing Section 3(B)(2), Article IV of the Ohio Constitution; General Acc. Ins.
Co. v. Ins. Co. of N. America, 44 Ohio St.3d 17, 540 N.E.2d 266 (1989); Noble v.
Colwell, 44 Ohio St.3d 92, 540 N.E.2d 1381 (1989). Further, “[a] trial court's finding that
its judgment is a final appealable order is not binding upon this court.” In re Nichols, 4th
Dist. No. 03CA41, 2004–Ohio–2026, ¶ 6; citing Ft. Frye Teachers Assn. v. Ft. Frye
Local School Dist. Bd. of Edn., 87 Ohio App.3d 840, 843, 623 N.E.2d 232, fn. 4 (1993);
citing Pickens v. Pickens, 4th Dist. No. 459, 1992 WL 209498 (Aug. 27, 1992). This
court has “no choice but to sua sponte dismiss an appeal that is not from a final
appealable order.” Id. at ¶ 6, citing Whitaker–Merrell Co. v. Geupel Constr. Co., 29 Ohio
St.2d 184, 280 N.E.2d 922 (1972).
{¶20} To be appealable, an order must be a final order, within the meaning of
R.C. §2505.02. Delaware County, Case No. 13 CAE 05 0047 5
{¶21} “An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right
in an action that in effect determines the action and prevents a judgment” or “[a]n order
that affects a substantial right made in a special proceeding[ .]” R.C. §2505.02(B). “A
final order * * * is one disposing of the whole case or some separate and distinct branch
thereof.” Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303, 306, 272 N.E.2d 127 (1971).
An order adjudicating “one or more but fewer than all the claims or the rights and
liabilities of fewer than all the parties must meet the requirements of R.C. 2505.02 and
Civ. R. 54(B) in order to be final and appealable.” Noble at syllabus.
{¶22} In this case, we find the trial court’s January 10, 2012, entry disposes of
the entire case.
{¶23} Appellees herein argue the 2012 Judgment Entry was not a final,
appealable order because Appellant requested attorney fees in his Complaint, and the
2012 Entry did not address fees or dispose of the issue.
{¶24} The Supreme Court of Ohio has held that “ ‘[w]hen attorney fees are
requested in the original pleadings, an order that does not dispose of the attorney-fee
claim * * * is not a final, appealable order.’ “ Internatl. Bhd. of Electrical Workers, Local
Union No. 8 v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335, 2007–Ohio–6439, 879
N.E.2d 187, paragraph two of the syllabus. However, in this case, we find that the
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[Cite as Frabott v. Swaney, 2013-Ohio-3354.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
CURTIS FRABOTT JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellant Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 13 CAE 05 0047 SHEREE D. SWANEY, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 10 CVE 09 1302
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: July 30, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
DAVE LACKEY JAMES D. GILBERT SCHERNER & SYBERT 425 Metro Place North 153 South Liberty Street Suite 460 Powell, Ohio 43065 Dublin, Ohio 43017 Delaware County, Case No. 13 CAE 05 0047 2
Wise, J.
{¶1} This is an appeal by Plaintiff-Appellant Curtis Frabott from the April 22,
2013, Judgment Entry of the Delaware County Common Pleas Court granting
Defendants-Appellees Sheree D. Swaney and William Swaney’s motion for
reconsideration.
{¶2} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
{¶3} “(E) Determination and judgment on appeal. The appeal will be
determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.
12(A) for the statement of the reason for the court’s decision as to each error to be in
brief and conclusionary form. The decision may be by judgment entry in which case it
will not be published in any form.”
{¶4} This appeal shall be considered in accordance with the aforementioned
rule.
STATEMENT OF THE FACTS AND CASE
{¶5} The relevant facts are as follows:
{¶6} This case originally involved construction work by Appellant Frabott at the
home of Appellees Sheree and William Swaney. A dispute arose during the
construction, causing construction on the project to terminate. Frabott recorded a
Mechanics’ Lien against the property and initiated an action for foreclosure, breach of
contract and unjust enrichment. The Swaneys filed an Answer and Counterclaim
alleging they were damaged.
{¶7} A bench trial was held on December 13 and 14, 2011. Delaware County, Case No. 13 CAE 05 0047 3
{¶8} By Judgment Entry filed January 10, 2012, the trial court found in favor of
Frabott and against the Swaneys for $518.16 and costs. The trial court also declared
Frabott’s mechanics’ lien was void.
{¶9} Neither party appealed the January 10, 2012, judgment.
{¶10} On January 27, 2012, Appellant Frabott filed a Motion for
{¶11} On February 10, 2012, Appellees filed their response to Appellant’s
Motion for Reconsideration, which also raised their own specific requests for Motion for
{¶12} By Judgment Entry filed April 22, 2013, the trial court ruled on the motions
for reconsideration, reversing its prior entry and rendering judgment in favor of the
Swaneys and against Frabott in the amount of $5,481.84.
{¶13} Appellant Frabott now appeals, assigning the following errors for review:
ASSIGNMENT OF ERROR
{¶14} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT RULED UPON MOTIONS FOR RECONSIDERATION AFTER A FINAL JUDGMENT
HAD BEEN RENDERED IN THE CASE.”
I.
{¶15} In his sole Assignment of Error, Appellant argues that the trial court erred
in ruling on the motions for reconsideration after a final judgment had been made in this
case.
{¶16} Before we reach the merits of Appellant’s Assignment of Error, this Court
must first consider its jurisdiction to hear the present appeal. Delaware County, Case No. 13 CAE 05 0047 4
{¶17} Initially, we must address the threshold issue of whether the judgment
entry appealed is a final, appealable order. Generally, motions for reconsideration to a
trial court are only permissible to obtain relief from a non-final order. See McGee v.
Lynch, Erie App.No. E–06–063, 2007–Ohio–3954, ¶ 27. The Ohio Civil Rules do not
provide for motions for reconsideration after a final judgment. Therefore such a motion
is considered a nullity. Pitts v. Dept. of Transportation (1981), 67 Ohio St.2d 378, 423
N.E.2d 1105.
{¶18} The foremost issue at this juncture is therefore to determine whether the
trial court's January 10, 2012, Judgment Entry constituted a final appealable order.
{¶19} Appellate courts have no “jurisdiction to review an order that is not final
and appealable.” Oakley v. Citizens Bank of Logan, 4th Dist. No. 04CA25, 2004–Ohio–
6824, ¶ 6; citing Section 3(B)(2), Article IV of the Ohio Constitution; General Acc. Ins.
Co. v. Ins. Co. of N. America, 44 Ohio St.3d 17, 540 N.E.2d 266 (1989); Noble v.
Colwell, 44 Ohio St.3d 92, 540 N.E.2d 1381 (1989). Further, “[a] trial court's finding that
its judgment is a final appealable order is not binding upon this court.” In re Nichols, 4th
Dist. No. 03CA41, 2004–Ohio–2026, ¶ 6; citing Ft. Frye Teachers Assn. v. Ft. Frye
Local School Dist. Bd. of Edn., 87 Ohio App.3d 840, 843, 623 N.E.2d 232, fn. 4 (1993);
citing Pickens v. Pickens, 4th Dist. No. 459, 1992 WL 209498 (Aug. 27, 1992). This
court has “no choice but to sua sponte dismiss an appeal that is not from a final
appealable order.” Id. at ¶ 6, citing Whitaker–Merrell Co. v. Geupel Constr. Co., 29 Ohio
St.2d 184, 280 N.E.2d 922 (1972).
{¶20} To be appealable, an order must be a final order, within the meaning of
R.C. §2505.02. Delaware County, Case No. 13 CAE 05 0047 5
{¶21} “An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right
in an action that in effect determines the action and prevents a judgment” or “[a]n order
that affects a substantial right made in a special proceeding[ .]” R.C. §2505.02(B). “A
final order * * * is one disposing of the whole case or some separate and distinct branch
thereof.” Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303, 306, 272 N.E.2d 127 (1971).
An order adjudicating “one or more but fewer than all the claims or the rights and
liabilities of fewer than all the parties must meet the requirements of R.C. 2505.02 and
Civ. R. 54(B) in order to be final and appealable.” Noble at syllabus.
{¶22} In this case, we find the trial court’s January 10, 2012, entry disposes of
the entire case.
{¶23} Appellees herein argue the 2012 Judgment Entry was not a final,
appealable order because Appellant requested attorney fees in his Complaint, and the
2012 Entry did not address fees or dispose of the issue.
{¶24} The Supreme Court of Ohio has held that “ ‘[w]hen attorney fees are
requested in the original pleadings, an order that does not dispose of the attorney-fee
claim * * * is not a final, appealable order.’ “ Internatl. Bhd. of Electrical Workers, Local
Union No. 8 v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335, 2007–Ohio–6439, 879
N.E.2d 187, paragraph two of the syllabus. However, in this case, we find that the
attorney fee request was made pursuant to R.C. §1311.16, the fee request was
overruled sub silento when the trial court declared the mechanics lien void and of no
real effect. Delaware County, Case No. 13 CAE 05 0047 6
{¶25} Appellees also argue the 2012 Judgment Entry fails to state that it is the
final judgment in this matter.
{¶26} ‘An order which adjudicates one or more but fewer than all the claims or
the rights and liabilities of fewer than all the parties must meet the requirements of
[both] R.C. §2505.02 and Civ.R. 54(B) in order to be final and appealable.’ ” Reagan v.
Ranger Transp., 104 Ohio App.3d 15, 17, 660 N.E.2d 1234 (11th Dist.1995), quoting
Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989).
{¶27} As stated above, we find that the 2012 Judgment Entry did dispose of all
claims, rendering Civ.R. 54(B) inapplicable in the instant case.
{¶28} Based on the foregoing, we find that the January 10, 2012, Judgment
Entry was a final, appealable order. As stated above, the Ohio Civil Rules do not
provide for motions for reconsideration after a final judgment, therefore the motions for
reconsideration filed in this case were nullity. Pitts v. Dept. of Transportation, supra. It
follows that a judgment entered on a motion for reconsideration is also a nullity and a
party cannot appeal from such a judgment. Kauder v. Kauder (1974), 38 Ohio St.2d
265, 313 N.E.2d 797; George v. Parker (Sept. 10, 1999), Fairfield App. No. 99CA3. Delaware County, Case No. 13 CAE 05 0047 7
{¶29} This appeal of the judgment of the Court of Common Pleas of Delaware
County, Ohio, is dismissed for lack of jurisdiction.
By: Wise, J.
Farmer, J., concurs.
Hoffman, P. J., concurs in part and dissents in part.
s/s/ John W. Wise HON. JOHN W. WISE
s/s/ William B. Hoffman HON. WILLIAM B. HOFFMAN
s/s/ Sheila G. Farmer HON. SHEILA G. FARMER
JWW/d 0718 Delaware County, Case No. 13 CAE 05 0047 8
Hoffman, P.J., concurring in part and dissenting in part
{¶30} I concur in the majority’s conclusion the January 10, 2012 Judgment Entry
was a final appealable order. I further concur with the majority a motion for
reconsideration of a final appealable order is a nullity.
{¶31} My disagreement lies in the majority’s conclusion the trial court’s granting
of a null motion for reconsideration is also a nullity from which no appeal lies. While I
agree the trial court erred in considering the motions for reconsideration, nevertheless it
entered judgment thereon. To say no appeal can be taken and order dismissal of the
appeal arguably leaves the parties in limbo as to which entry is enforceable.
{¶32} I suggest the better alternative would be to vacate the trial court’s April 22,
2013 Judgment Entry, thereby effectively reinstating the January 10, 2012 Judgment
Entry as the final order of the trial court.
s/s William B. Hoffman HON. WILLIAM B. HOFFMAN Delaware County, Case No. 13 CAE 05 0047 9
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
CURTIS FRABOTT : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : SHEREE D. SWANEY, et al. : : Defendants-Appellees : Case No. 13 CAE 05 0047
For the reasons stated in our accompanying Memorandum-Opinion, the appeal
of judgment of the Court of Common Pleas of Delaware County, Ohio, is dismissed.
Costs assessed to Appellant.