Fougere v. Estate of FougereFougere v. Estate of Fougere
Rendered on September 28, 2017
On brief: Carlile Patchen & Muphy LLP, and Carl A. Aveni, for appellant. Argued: Carl A. Aveni.
On brief: Thomas Arthur Fougere, pro se.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Plaintiff-appellant, Thomas Arthur Fougere, appeals a judgment of the Franklin County Court of Common Pleas that denied Fougere‘s motion for a new trial. Because we lack jurisdiction over this appeal, we dismiss it.
{¶ 2} On July 10, 2015, Fougere filed suit against defendants-appellees, the estate of Arthur Fougere and estate administrator Robert B. Barnett, Jr. In the complaint, Fougere sought to recover money due to him on a promissory note executed by Arthur Fougere prior to his death. The estate answered the complaint and, shortly thereafter, began its attempts to depose Fougere.
{¶ 4} In an entry issued May 18, 2016, the trial court granted the estate a
{¶ 5} Fougere did not show up for his June 20, 2016 deposition. Because Fougere‘s nonappearance violated the trial court‘s May 18, 2016 order, the estate filed a motion requesting the trial court require Fougere to show causе why his action should not be dismissed. The trial court granted the estate‘s motion and scheduled a show cause hearing for September 7, 2016. Fougere appeared at that Septеmber 7, 2016 hearing and sat for a deposition. Having secured the deposition it needed, the estate did not seek any further sanction against Fougere.
{¶ 6} On October 20, 2016, the estate appeared for the final pre-trial conference, but Fougere did not. The trial court ordered Fougere to explain in writing why the court did not have good cause to dismiss Fougerе‘s action for lack of prosecution. Fougere offered two inconsistent explanations for his absence: (1) he was unaware that the trial court had rescheduled the finаl pre-trial conference for October 20, even though the May 18, 2016 entry set the conference for that date, and (2) because the trial court had extended deadlines related to the summary judgment briefing, “the possibility of [the hearing occurring seemed] unrealistic in [Fougere‘s] eyes” and retaining the October 20 date for the pre-trial conference madе no “logical sense.” (Oct. 27, 2016 Pl.‘s Resp. to Order to Show Cause at 1, 3.)
{¶ 8} Fougere responded to the dismissal with a “Motion for New Trial.” In a judgment issued on Decеmber 28, 2016, the trial court denied Fougere‘s motion. In relevant part, the trial court concluded that the motion was improper because no trial had occurred prior to thе October 31, 2016 judgment.
{¶ 9} Fougere now appeals from the December 28, 2016 judgment, and he assigns the following errors:
[1.] The trial court erred and abused its discretion when it denied Appellant‘s Motion for New Trial, made pursuant to
Civ.R. 59(A) .[2.] The trial court erred and abused its discretion by dismissing Appellant‘s case with prejudice, in violation of
Civ.R. 41(B)(1) .[3.] The trial court erred and abused its discretion when it refused to address a fully answered Motion For Summary Judgment due to what appears to be extreme bias either for Defendant and/or against Plaintiff.
{¶ 10} We begin and end our review of Fougerе‘s appeal with an examination of whether Fougere timely filed his notice of appeal. “An appeal as of right shall be taken by filing a notice of appeal with thе clerk of the trial court within the time allowed by Rule 4.”
{¶ 11} Pursuant to
{¶ 12}
{¶ 13} Here, the trial court entered a finаl order dismissing Fougere‘s action on October 31, 2016. The Franklin County Clerk of Courts served notice of that order on the parties and noted the service in the docket on the same date. The clerk, therefore, served the order as required by
{¶ 14} Conceivably, Fougere could rely on the
{¶ 15} After considering the above indicia, courts have found motions for new trials appropriate where there has been an in-court hearing succeeded by a judgment ruling on the issues argued and evidence heard at the hearing. Id. at 506-08; Wolf-Sabatino at ¶ 14. Here, however, no such hearing occurred. The October 31, 2016 dismissal resulted after the trial court ordered Fougere to explain in writing why the court did not have good cause to dismiss his action and Fougere complied with that order. Thus, there was no proceeding in court before a neutral adjudicator where the parties or counsel offered argument or sworn evidence. Moreover, the issue the trial court decided in the October 31, 2016 judgment was not initiated by the pleadings and was ancillary to the primary dispute between the parties. Accordingly, we conclude that no trial occurred here, and cоnsequently, Fougere could not file a legitimate motion for a new trial.
{¶ 16} Because Fougere‘s motion for a new trial was inappropriate, the filing of that motion does not toll the 30-day appeal period. Therefore, Fougere failed to timely initiate his appeal, and his failure deprives this court of jurisdiction. We thus dismiss this appeal.
Appeal dismissed.
SADLER and HORTON, JJ., concur.