2013 Ohio 252
Ohio Ct. App.2013Background
- Chase filed a foreclosure action against Gersten in 2009 in Ross County; case proceeded to summary judgment on August 15, 2011 and foreclosure decree on August 31, 2011.
- Gersten moved for a new trial on September 14–15, 2011, and commenced appellate proceedings in Case Nos. 11CA3281 and 11CA3291.
- This court dismissed 11CA3281 on March 27, 2012 for lack of perfecting the appeal; 11CA3291 was dismissed for untimeliness in December 2011.
- Gersten filed the present appeal on February 24, 2012, attempting to challenge the summary judgment and the denial of her new-trial motion.
- The appellate court concluded it lacked jurisdiction to review the assignments of error, and dismissed the appeal.
- Judgment entry states the appeal is dismissed for lack of jurisdiction and costs are taxed against Gersten.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is timely | Chase/Chase entities contend untimely filing. | Gersten argues a timely appeal from denial of new trial and/or from summary judgment. | Appeal untimely; lack of jurisdiction. |
| Whether the denial of the motion for a new trial is reviewable | Motion for new trial is a nullity in a summary-judgment context. | New-trial denial can be appealed in proper circumstances. | Motion for a new trial is a nullity; no appellate review. |
| Whether Gersten could appeal the summary-judgment judgment | We must review the summary judgment on its merits. | Appeal from summary judgment was untimely under App.R. 4(A). | Appeal from summary judgment untimely; lack of jurisdiction. |
Key Cases Cited
- L.A. & D., Inc. v. Bd. of Lake Cty. Commrs., 67 Ohio St.2d 384 (Ohio 1981) (summary-judgment proceedings not trials; a new-trial motion is a nullity)
- Napier v. Napier, 182 Ohio App.3d 672 (4th Dist. 2009) (nullity of erroneous post-judgment motions and lack of appealability)
- Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378 (Ohio 1981) (timeliness requirement for notices of appeal is jurisdictional)
- Burriss v. Burriss, 2010-Ohio-6116 (4th Dist. 2010) (nullity and lack of jurisdiction for improper filings)