480 N.E.2d 822 | Ohio Ct. App. | 1984
Defendant-appellant Shaker Heights City School District Board of Education (hereinafter "the board") appeals from an order which granted plaintiff-appellee Peter Sakian's motion for reconsideration of its earlier order granting a motion to dismiss the board. For the following reason, we reverse and remand.
Peter Sakian sustained injuries when the bleachers upon which he was standing gave way underneath him. These bleachers were located at the Shaker Heights High School. Sakian filed a negligence suit against the board, as well as twelve other individually named defendants.1
On April 28, 1981 the board filed a motion to dismiss itself as a party on the grounds of sovereign immunity. The trial court denied this motion on July 30, 1981, and the board filed an answer to the complaint.
On May 14, 1982, the board filed a motion for reconsideration of the decision to deny the motion to dismiss. The court did not respond to this motion. After a lengthy period of discovery, with requests for extensions from both parties, *63 the board on April 1, 1983 again requested the court to dismiss the board on the ground of sovereign immunity. Sakian filed a brief in opposition.
This time the court granted the motion and dismissed the board in a journal entry filed on June 20, 1983. In this entry the court stated that there was "no just reason for delay."
However, Sakian did not appeal that order. On August 10, 1983, the Ohio Supreme Court abrogated the defense of sovereign immunity for school boards. Carbone v. Overfield (1983),
Appellant raises one assignment of error for our review.
"Assignment of error
"I. The trial court erred in granting plaintiff-appellee's motion for reconsideration of its earlier dismissal of the amended complaint against defendant-appellant."
Appellant argues that the trial court erred in granting the motion for reconsideration, which allowed Sakian to circumvent his failure to timely appeal the trial court's earlier decision to dismiss the board.
A motion for reconsideration filed after a final judgment of the trial court must be viewed as a nullity. Pitts v. Dept. ofTransportation (1981),
App. R. 4(A) provides that a notice of appeal must be filed within thirty days of the final judgment, and a party may not extend that thirty-day period by filing a "motion for reconsideration" of that final order. Pitts, supra, at 380;Kauder, supra, at 267; William W. Bond, Jr. Assoc. v. AirwayDevelopment Corp. (1978),
In the instant case, the dismissal of the school board was a final appealable order. When multiple parties are involved in a lawsuit, the trial court may enter final judgment as to one of the parties if accompanied with an express determination that there is no just reason for delay; otherwise the order is subject to revision at any time. Civ. R. 54(B).3 In the final order dismissing the board (filed on June 20, 1983), the trial court expressly stated that there was "no just reason for delay." Thus, Sakian *64 had thirty days to file his appeal of that order, which he never appealed. The motion for reconsideration was a nullity and could not extend the thirty-day appeal period; hence, the trial court erred in granting it. Thus, the final order filed on June 20, 1983 is the only valid final appealable order which Sakian failed to appeal within the thirty days required by App. R. 4(A).
Sakian argues that the board itself filed a motion for reconsideration after the trial court initially denied the board's motion to dismiss, and that the board can not now argue that motions for reconsideration are nullities. However, the denial of the motion to dismiss did not amount to a final appealable order; thus, the court had continuing jurisdiction to revise its order at any time. Civ. R. 54(B). See Pitts, supra. So long as there is no express determination that there is no just reason for delay, any order that adjudicates fewer than all claims may be revised at any time. Civ. R. 54(B), supra.
Sakian alternatively argues that his motion for reconsideration should be treated as a Civ. R. 60(B) motion to vacate. There is no motion for relief from judgment in the file, nor did the court or counsel ever refer to such a motion. Instead the trial court states that "plaintiff's motion for reconsideration is granted." It is well-settled that an appellate court will not address an issue that was not presented to or decided by the lower court.Kalish v. Trans World Airlines (1977),
Judgment reversed and cause remanded.
MARKUS, P.J., and COOK, J., concur.
COOK, J., of the Eleventh Appellate District, sitting by assignment in the Eighth Appellate District.
"Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."
