Fougere v. Estate of Fougere
2017 Ohio 7905
| Ohio Ct. App. | 2017Background
- Thomas Fougere sued the estate of Arthur Fougere on July 10, 2015 seeking amounts due on a promissory note.
- The estate sought Fougere's deposition; Fougere missed a noticed deposition and failed to cooperate, prompting the estate to seek relief and a court-ordered deposition date.
- The trial court granted the estate a Civ.R. 56(F) continuance and ordered Fougere to appear for deposition on June 20, 2016; Fougere did not appear but later attended a show-cause hearing and was deposed in September 2016.
- Fougere failed to appear at the final pretrial conference on October 20, 2016; the court found his written explanations inadequate and dismissed his action with prejudice under Civ.R. 41(B)(1) on October 31, 2016.
- Fougere filed a "Motion for New Trial," which the trial court denied as improper because no trial had occurred; Fougere then filed a notice of appeal on January 27, 2017.
- The Tenth District dismissed the appeal for lack of jurisdiction because Fougere’s notice of appeal was untimely and his motion for a new trial did not toll the appeal period (no trial had occurred so Civ.R. 59 was inapplicable).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fougere's Civ.R. 59 "motion for new trial" tolled the 30‑day appeal period under App.R. 4(B)(2)(b) | Fougere labeled his filing a motion for new trial to extend appeal time and preserve appellate review | The estate argued the motion was improper because no trial occurred, so it cannot toll the appeal period | Denied: motion did not toll time because a new trial motion is a nullity absent a trial |
| Whether the trial court abused discretion in dismissing under Civ.R. 41(B)(1) for lack of prosecution | Fougere contended dismissal with prejudice was an abuse given briefing on summary judgment and his explanations | The estate pointed to Fougere’s repeated noncompliance and failure to appear as justification for dismissal | Court did not reach merits due to lack of appellate jurisdiction (but trial court had dismissed for pattern of dilatory conduct) |
| Whether the trial court improperly refused to rule on Fougere’s summary judgment and showed bias | Fougere argued the court refused to address his summary judgment and was biased | The estate maintained procedural noncompliance and lack of prosecution justified the court’s actions | Court again did not reach merits because appeal was untimely; primary ruling concerned jurisdiction/timeliness |
Key Cases Cited
- In re H.F., 120 Ohio St.3d 499 (2008) (untimely appeal deprives appellate court of jurisdiction)
- State ex rel. Batten v. Reece, 70 Ohio St.2d 246 (1982) (a motion for new trial is null unless filed after a trial has occurred)
- First Bank v. Mascrete, Inc., 79 Ohio St.3d 503 (1997) (test to determine whether a proceeding constitutes a "trial" for Civ.R. 59 purposes)