State v. Cornwell, Unpublished Decision (3-9-2007)

2007 Ohio 1068

• Court: Ohio Court of Appeals
• Decided: March 9, 2007
• Docket: No. 2007-T-0007.
• Status: Unpublished

Opinion

MEMORANDUM OPINION {¶ 1} On January 12, 2007, appellant, by and through counsel, filed a notice of appeal from a November 28, 2006 judgment denying her motion for reconsideration.

{¶ 2} On January 17, 2007, appellee filed a motion to dismiss the appeal pursuant to App.R. 4(A) and Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 378.

{¶ 3} App.R. 4(A) states in part:

{¶ 4} "A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the judgment or order appealed * * *."

{¶ 5} First, we note that the thirtieth day for filing appellant's notice of appeal fell on Thursday, December 28, 2006, which was not a weekend or holiday. Therefore, the due date for appellant's notice of appeal of the November 28 judgment was Thursday, December 28, 2006, and the notice of appeal was not filed until Friday, January 12, 2007.

{¶ 6} In addition, as appellee correctly asserts in its motion, a motion for reconsideration filed by a party from a final judgment in the trial court is a nullity. See Pitts at 380. As a result, a judgment denying a motion to reconsider a prior final judgment is itself not an appealable order because such a judgment is considered a nullity under the law.

{¶ 7} We would also note that neither the granting nor the denial of a motion for reconsideration at the trial level extends the time for filing a notice of appeal. Consol. Rail Corp. v. Forest Cartage Co.Inc. (1990), 68 Ohio App.3d 333. This point was also noted by the Supreme Court in Pitts at 380. As an aside, even if appellant had relied on such an extension, her notice of appeal was not filed until forty-five days after the judgment denying the motion for reconsideration was issued.

{¶ 8} In the present case, the final order in this matter was entered by the trial court on September 22, 2006, which denied appellant's motion for expungement. No appeal was filed from that judgment.

{¶ 9} For the foregoing reasons, appellee's motion to dismiss is granted, and the appeal is dismissed.

DIANE V. GRENDELL, J., COLLEEN MARY OTOOLE, J., concur.