[Cite as Nannicola v. Rosan, 2012-Ohio-5338.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ARMAND NANNICOLA ) CASE NO. 12 MA 20 ) PLAINTIFF-APPELLANT ) ) VS. ) OPINION ) JAMES EDWARD ROSAN, et al. ) ) DEFENDANT-APPELLEES )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 10 CV 3647
JUDGMENT: Reversed.
APPEARANCES:
For Plaintiff-Appellant: Atty. David M. Moore Atty. Neal G. Atway Atway & Cochran, LLC 19 East Front Street Youngstown, Ohio 44503
For Defendants-Appellees: Atty. Mark Devicchio 3680 Starr Centre Drive Canfield, Ohio 44406
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: November 14, 2012 [Cite as Nannicola v. Rosan, 2012-Ohio-5338.] WAITE, P.J.
{¶1} Plaintiff-Appellant Armand Nannicola appeals the decision of the
Mahoning County Court of Common Pleas granting a motion for reconsideration in
favor of Appellees in this case after summary judgment had previously been awarded
to Appellant. Appellees, James Edward Rosen and The Whiskey Club, LLC,
borrowed $33,000 from Appellant and failed to repay the loan, prompting Appellant to
file a breach of contract suit. Appellees, through counsel, filed an answer. Appellant
then filed a motion for summary judgment in October of 2011, and Appellees failed to
reply. On December 13, 2011, the trial court awarded summary judgment to
Appellant in the amount of $33,000.
{¶2} Appellees filed a motion for reconsideration on December 22, 2011,
and the motion was granted 13 days later on January 4, 2012. Appellant filed this
appeal on February 3, 2012. Appellant argues that a motion for reconsideration is a
nullity in Ohio; that Appellees gave no indication that they intended that the trial court
treat their motion as a Civ.R. 60(B) motion for relief from judgment, and that
Appellees could not meet the requirements of a Civ.R. 60(B) motion even if it had
been so characterized. Appellant is correct on all counts. The trial court issued a
final order in favor of Appellant. Subsequently, Appellees filed a motion for
reconsideration of that final order. Appellees clearly captioned their motion as a
motion for reconsideration. Such a motion is a nullity in Ohio. There is no indication
that Appellees or the trial court treated the motion as anything other than a motion for
reconsideration. Even if the motion had been filed as a Civ.R. 60(B) motion for relief
from judgment, Appellees did not allege any meritorious defense as required by GTE -2-
Automatic Elec., Inc. v. Arc Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113
(1976). The judgment of the trial court is reversed and summary judgment is
reinstated in favor of Appellant.
{¶3} Appellant presents one assignment of error that contains a number of
subissues. Appellees have not filed a brief in this appeal. Under App.R. 18(C), if the
appellee has not filed a brief, “the court may accept the appellant's statement of the
facts and issues as correct and reverse the judgment if appellant's brief reasonably
appears to sustain such action.”
{¶4} An order that vacates a judgment, including a judgment that grants
summary judgment, is a final appealable order. McGeary v. Brocker, 94 Ohio St.3d
440, 440, 763 N.E.2d 1175 (2002); R.C. 2505.02(B)(3).
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN VACATING SUMMARY JUDGMENT
FOR NANNICOLA.
{¶5} Appellant first argues that a motion for reconsideration of a final
judgment in the Court of Common Pleas of Ohio does not exist. Appellant is correct.
A trial court cannot grant a motion for reconsideration of a final judgment, and such a
motion is a nullity. Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 423 N.E.2d
1105 (1981). “Once an appealable or final judgment in a case has been journalized,
it cannot be modified by that court except as provided under Civ.R. 50(B) (motion
notwithstanding the verdict), Civ.R. 59 (motion for a new trial), or Civ.R. 60(B)
(motion for relief from judgment).” In re Guardianship of Maurer, 108 Ohio App.3d -3-
354, 357, 670 N.E.2d 1030 (6th Dist.1995), citing Civ.R. 54(A) and Pitts, supra, at
380. Any decision entered pursuant to a motion for reconsideration filed after a final
judgment is entered is also a nullity. Pitts at 381; State ex rel. Clark v. Lile, 80 Ohio
St.3d 220, 685 N.E.2d 535 (1997).
{¶6} A trial judge does have some discretion in treating a motion seeking
reconsideration of a final order as a Civ.R. 60(B) motion for relief from judgment, but
there is no indication that the trial court exercised such discretion in this case. State
ex rel. Albourque v. Terry, 128 Ohio St.3d 505, 2011-Ohio-1913, 947 N.E.2d 169, ¶2.
In Appellees' motion for reconsideration they simply asked for more time to respond
to the motion for summary judgment, even though summary judgment had been
granted nine days earlier. The caption of Appellees' motion indicates that it was a
motion for reconsideration and nothing else. The content of the motion does not
refer to Civ.R. 60(B) or to any of the elements that would be found in a Civ.R. 60(B)
motion. This is simply a case in which the trial court granted a motion for
reconsideration. However, following a final judgment in this matter, the trial court had
no power to grant this motion.
{¶7} Even if the trial court had been inclined to convert the motion for
reconsideration into a Civ.R. 60(B) motion for relief from judgment, relief would not
have been warranted based on the record before us. Civ.R. 60(B) provides that:
[T]he court may relieve a party or his legal representative from a final
judgment, order or proceeding for the following reasons: (1) mistake,
inadvertence, surprise or excusable neglect; (2) newly discovered -4-
evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(B); (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation or
other misconduct of an adverse party; (4) the judgment has been
satisfied, released or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or (5)
any other reason justifying relief from the judgment. The motion shall
be made within a reasonable time, and for reasons (1), (2) and (3) not
more than one year after the judgment, order or proceeding was
entered or taken. A motion under this subdivision (B) does not affect
the finality of a judgment or suspend its operation.
{¶8} There are three basic requirements for a successful Civ.R. 60(B)
motion: “To prevail on a motion brought under Civ.R. 60(B), the movant must
demonstrate that: (1) the party has a meritorious defense or claim to present if relief
is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.
60(B)(1) through (5); and (3) the motion is made within a reasonable time, and,
where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year
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[Cite as Nannicola v. Rosan, 2012-Ohio-5338.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ARMAND NANNICOLA ) CASE NO. 12 MA 20 ) PLAINTIFF-APPELLANT ) ) VS. ) OPINION ) JAMES EDWARD ROSAN, et al. ) ) DEFENDANT-APPELLEES )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 10 CV 3647
JUDGMENT: Reversed.
APPEARANCES:
For Plaintiff-Appellant: Atty. David M. Moore Atty. Neal G. Atway Atway & Cochran, LLC 19 East Front Street Youngstown, Ohio 44503
For Defendants-Appellees: Atty. Mark Devicchio 3680 Starr Centre Drive Canfield, Ohio 44406
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: November 14, 2012 [Cite as Nannicola v. Rosan, 2012-Ohio-5338.] WAITE, P.J.
{¶1} Plaintiff-Appellant Armand Nannicola appeals the decision of the
Mahoning County Court of Common Pleas granting a motion for reconsideration in
favor of Appellees in this case after summary judgment had previously been awarded
to Appellant. Appellees, James Edward Rosen and The Whiskey Club, LLC,
borrowed $33,000 from Appellant and failed to repay the loan, prompting Appellant to
file a breach of contract suit. Appellees, through counsel, filed an answer. Appellant
then filed a motion for summary judgment in October of 2011, and Appellees failed to
reply. On December 13, 2011, the trial court awarded summary judgment to
Appellant in the amount of $33,000.
{¶2} Appellees filed a motion for reconsideration on December 22, 2011,
and the motion was granted 13 days later on January 4, 2012. Appellant filed this
appeal on February 3, 2012. Appellant argues that a motion for reconsideration is a
nullity in Ohio; that Appellees gave no indication that they intended that the trial court
treat their motion as a Civ.R. 60(B) motion for relief from judgment, and that
Appellees could not meet the requirements of a Civ.R. 60(B) motion even if it had
been so characterized. Appellant is correct on all counts. The trial court issued a
final order in favor of Appellant. Subsequently, Appellees filed a motion for
reconsideration of that final order. Appellees clearly captioned their motion as a
motion for reconsideration. Such a motion is a nullity in Ohio. There is no indication
that Appellees or the trial court treated the motion as anything other than a motion for
reconsideration. Even if the motion had been filed as a Civ.R. 60(B) motion for relief
from judgment, Appellees did not allege any meritorious defense as required by GTE -2-
Automatic Elec., Inc. v. Arc Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113
(1976). The judgment of the trial court is reversed and summary judgment is
reinstated in favor of Appellant.
{¶3} Appellant presents one assignment of error that contains a number of
subissues. Appellees have not filed a brief in this appeal. Under App.R. 18(C), if the
appellee has not filed a brief, “the court may accept the appellant's statement of the
facts and issues as correct and reverse the judgment if appellant's brief reasonably
appears to sustain such action.”
{¶4} An order that vacates a judgment, including a judgment that grants
summary judgment, is a final appealable order. McGeary v. Brocker, 94 Ohio St.3d
440, 440, 763 N.E.2d 1175 (2002); R.C. 2505.02(B)(3).
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN VACATING SUMMARY JUDGMENT
FOR NANNICOLA.
{¶5} Appellant first argues that a motion for reconsideration of a final
judgment in the Court of Common Pleas of Ohio does not exist. Appellant is correct.
A trial court cannot grant a motion for reconsideration of a final judgment, and such a
motion is a nullity. Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 423 N.E.2d
1105 (1981). “Once an appealable or final judgment in a case has been journalized,
it cannot be modified by that court except as provided under Civ.R. 50(B) (motion
notwithstanding the verdict), Civ.R. 59 (motion for a new trial), or Civ.R. 60(B)
(motion for relief from judgment).” In re Guardianship of Maurer, 108 Ohio App.3d -3-
354, 357, 670 N.E.2d 1030 (6th Dist.1995), citing Civ.R. 54(A) and Pitts, supra, at
380. Any decision entered pursuant to a motion for reconsideration filed after a final
judgment is entered is also a nullity. Pitts at 381; State ex rel. Clark v. Lile, 80 Ohio
St.3d 220, 685 N.E.2d 535 (1997).
{¶6} A trial judge does have some discretion in treating a motion seeking
reconsideration of a final order as a Civ.R. 60(B) motion for relief from judgment, but
there is no indication that the trial court exercised such discretion in this case. State
ex rel. Albourque v. Terry, 128 Ohio St.3d 505, 2011-Ohio-1913, 947 N.E.2d 169, ¶2.
In Appellees' motion for reconsideration they simply asked for more time to respond
to the motion for summary judgment, even though summary judgment had been
granted nine days earlier. The caption of Appellees' motion indicates that it was a
motion for reconsideration and nothing else. The content of the motion does not
refer to Civ.R. 60(B) or to any of the elements that would be found in a Civ.R. 60(B)
motion. This is simply a case in which the trial court granted a motion for
reconsideration. However, following a final judgment in this matter, the trial court had
no power to grant this motion.
{¶7} Even if the trial court had been inclined to convert the motion for
reconsideration into a Civ.R. 60(B) motion for relief from judgment, relief would not
have been warranted based on the record before us. Civ.R. 60(B) provides that:
[T]he court may relieve a party or his legal representative from a final
judgment, order or proceeding for the following reasons: (1) mistake,
inadvertence, surprise or excusable neglect; (2) newly discovered -4-
evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(B); (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation or
other misconduct of an adverse party; (4) the judgment has been
satisfied, released or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or (5)
any other reason justifying relief from the judgment. The motion shall
be made within a reasonable time, and for reasons (1), (2) and (3) not
more than one year after the judgment, order or proceeding was
entered or taken. A motion under this subdivision (B) does not affect
the finality of a judgment or suspend its operation.
{¶8} There are three basic requirements for a successful Civ.R. 60(B)
motion: “To prevail on a motion brought under Civ.R. 60(B), the movant must
demonstrate that: (1) the party has a meritorious defense or claim to present if relief
is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.
60(B)(1) through (5); and (3) the motion is made within a reasonable time, and,
where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year
after the judgment, order or proceeding was entered or taken.” GTE Automatic Elec.,
Inc., supra, at paragraph two of the syllabus. A failure to establish any one of the
three factors set forth in GTE Automatic Elec., Inc. is generally fatal to the motion for -5-
relief from judgment. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20-21, 520
N.E.2d 564 (1988).
{¶9} Appellees failed to establish, or even allege, any meritorious defense to
the breach of contract claim. Failure to present a meritorious defense defeats the
Civ.R. 60(B) motion and establishes reversible error on appeal if the motion was
granted. Gary R. Gorby & Assoc., L.L.C. v. McCarty, 2d Dist. No. 2010 CA 71, 2011-
Ohio-1983, ¶54; Universal Bank, N.A. v. Thornton, 8th Dist. No. 72553, 1997 WL
781718, at *3.
{¶10} Because the trial court granted a motion for reconsideration in a matter
where a final judgment had issued, and that such a motion is a nullity, the judgment
of the trial court is reversed and the prior judgment in favor of Appellant is reinstated.
Donofrio, J., concurs.
DeGenaro, J., concurs.