Opinion
Appellate Case No. 27816
04-09-2018
VERONICA OMOYOSI, et al. Plaintiffs-Appellants v. MONTGOMERY COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES Defendant-Appellee
Copies to: Omolola Omoyosi 127 W. 15th Street, #4F New York, NY 10011 Attorney for Appellants Joseph Saks 301 W. Third Street, 5th Floor Dayton, Ohio 45422 Attorney for Appellee Hon. Barbara P. Gorman Montgomery County Common Pleas Court 41 N. Perry Street P.O. Box 972 Dayton, Ohio 45422
Trial Court Case No. 2016 CV 04894 [Civil Appeal from Common Pleas Court]
DECISION AND FINAL JUDGMENT ENTRY
PER CURIAM:
{¶ 1} This matter arises from an "Administrative Appeal" filed in the Montgomery County Court of Common Pleas by Veronica Omoyosi and Akin Omoyosi (the Omoyosis"). On June 30, 2017, the Common Pleas Court issued a "Decision, Order and Entry Sustaining [the Montgomery County Department of Job and Family Services'] Motion to Dismiss" the appeal, resolving the case. The Omoyosis filed a "Motion for Reconsideration" of the decision on July 10, 2017. On November 6, 2017, the trial court overruled the motion, finding that it "lack[ed] jurisdiction to reconsider its own final appealable" order.
{¶ 2} The Omoyosis filed their appeal to this court on November 27, 2017. Their notice of appeal states that "they are appealing the Decision, Order and Entry Sustaining [MCDJFS'] Motion to Dismiss entered by said trial court on the 30th day of June, 2017." MCDJFS moved to dismiss the appeal as untimely under App.R. 4(A)(1), as it was filed more than 30 days after the order on appeal.
{¶ 3} The Omoyosis responded that, under the Rules of Practice of the Supreme Court of Ohio, the time to appeal to this court was tolled until 45 days after the decision overruling their motion for reconsideration. They reason that because the Common Pleas Court was acting as an appellate court, the Rules of Appellate Procedure govern their administrative appeal in that court. And, because this court "effectively acts as a supreme court," the Omoyosis assert that proceedings here are governed by the Rules of Practice of the Supreme Court of Ohio, including the rule that tolls the time to appeal: "When a party timely files an application for reconsideration in the court of appeals pursuant to App.R. 26(A)(1), the time for filing a notice of appeal from the court of appeals' entry of judgment shall be tolled." S.Ct.Prac.R. 7.01(A)(5)(a).
The Omoyosis cite S.Ct.Prac.R. 2.2(A)(5), but that rule was revised and renumbered effective January 1, 2013.
{¶ 4} MCDJFS replied that this case is controlled by the Supreme Court of Ohio's determination in Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 423 N.E.2d 1105 (1981) that, in an administrative appeal, the "Ohio Rules of Civil Procedure do not prescribe motions for reconsideration after a final judgment in the trial court." Id. at the syllabus. MCDJFS cites cases where courts have rejected the exact argument the Omoyosis make here, and asks this court to do the same.
{¶ 5} We begin by determining which set of rules will apply to the Omoyosis' appeal from the Montgomery County Court of Common Pleas to this Court of Appeals. R.C. 2505.03(C) states that "[a]n appeal of a final order, judgment, or decree of a court shall be governed by the Rules of Appellate Procedure or by the Rules of Practice of the Supreme Court, whichever are applicable, and, to the extent not in conflict with those rules, this chapter." The Omoyosis appear to argue that the Rules of Practice of the Supreme Court of Ohio apply to the appeal currently before us, although they provide no authority for that assertion. S.Ct.Prac.R. 1.04 describing the "Applicability" of the rules provides to the contrary: "The Rules of Practice of the Supreme Court of Ohio shall apply to all documents filed with the Supreme Court." There is one Supreme Court of Ohio. Ohio Constitution, Article IV, Sections 1 and 2. As none of the documents relevant to the appeal currently before us are "filed with the Supreme Court," we conclude that the Supreme Court's Rules of Practice do not apply here. We instead apply the Ohio Rules of Appellate Procedure. R.C. 2505.03(C); App.R. 1(A) ("These rules govern procedure in appeals to courts of appeals from the trial courts of record in Ohio").
{¶ 6} Appeals to this court from a common pleas court must generally satisfy the rule set out in App.R. 4(A)(1) that "a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry." The order on appeal here, the June 30, 2017 Decision dismissing the Omoyosis' appeal to the common pleas court, fully resolved the matter before that court and is therefore a final appealable order as defined by statute. See R.C. 2505.02(B)(1) ("An order is a final order that may be reviewed * * * when it is * * * [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment").
{¶ 7} The Omoyosis appear to suggest that the June 30 Decision is not a final order because several of their arguments were not addressed by the trial court in the June 30 Decision. We disagree. The June 30 Decision fully resolved the administrative appeal to the common pleas court by concluding, among other things, that the court lacked subject matter jurisdiction to hear the appeal. Such a determination is, under these circumstances, a final appealable order subject to review by this court. See, e.g., Small World Early Childhood Ctr. v. Ohio Dept. of Job & Family Services, 2017-Ohio-8336, 87 N.E.3d 1295 (2d Dist.) (implicitly recognizing a final appealable order by reviewing and affirming common pleas court's decision dismissing an administrative appeal pursuant to Civ.R. 12(B)(1)); see also George v. State, 10th Dist. Franklin Nos. 10AP-4, 10AP-97, 2010-Ohio-5262, ¶ 15 (recognizing the general rule that dismissals without prejudice are usually not final, but concluding that certain dismissals for lack of subject matter jurisdiction are final and appealable).
{¶ 8} Because the June 30 Decision was a final appealable order, the Omoyosis must have filed any appeal of it within 30 days unless an exception to App.R. 4(A)(1) applies. The Omoyosis argue that the time to appeal was tolled while their motion for reconsideration was pending. See S.Ct.Prac.R. 7.01(A)(5)(b). However, under the Ohio Rules of Appellate Procedure, which we have determined apply here, a motion for reconsideration does not toll the time to appeal. App.R. 4(B)(2) contains a list of the motions that do:
"If a timely application for reconsideration is filed in the court of appeals, and the appellant seeks to appeal from the court of appeals' entry of judgment, the appellant shall file a notice of appeal within forty-five days of the court of appeals' decision denying the application for reconsideration."
In a civil case or juvenile proceeding, if a party files any of the following, if timely and appropriate:
(a) a motion for judgment under Civ.R. 50(B);
(b) a motion for a new trial under Civ.R. 59;
(c) objections to a magistrate's decision under Civ.R 53(D)(3)(b) or Juv. R. 40(D)(3)(b);
(d) a request for findings of fact and conclusions of law under Civ.R. 52, Juv.R. 29(F)(3), Civ.R. 53(D)(3)(a)(ii) or Juv.R. 40(D)(3)(a)(ii);
(e) a motion for attorney fees; or
(f) a motion for prejudgment interest,
App.R. 4(B)(2).
then the time for filing a notice of appeal from the judgment or final order in question begins to run as to all parties when the trial court enters an order resolving the last of these post-judgment filings.
{¶ 9} A "motion for reconsideration," like the one filed by the Omoyosis, is absent from this list. We also note that to the extent the Omoyosis' filing could be considered a motion for relief from judgment on the basis of newly discovered evidence under Civ.R. 60(B)(2), such a motion would also not toll the time to appeal. See Colley v. Bazell, 64 Ohio St.2d 243, 245, 416 N.E.2d 605 (1980) ("the time for filing a notice of appeal from a judgment is not tolled by either the filing of a Civ.R. 60(B) motion for relief from judgment or a motion to reconsider"). If their filing was classified as a motion for new trial under Civ.R. 59, the argument for tolling would likewise fail, as it would not be "appropriate" to file a motion for new trial where there has been no trial. See Bissell v. Bissell, 2d Dist. Montgomery No. 26855 (Dec. 23, 2015), quoting Wolf-Sabatino v. Sabatino, 10th Dist. Franklin No. 12AP- 307, 2012-Ohio-6232, ¶ 13 ("A 'motion for a new trial properly lies only after a trial' "). Even if this court were to conclude that the Omoyosis' July 10 filing was an "Application for Reconsideration" under App.R. 26(A)(1), which we do not, that type of filing is also not listed as one that tolls the time to appeal under App.R. 4(B)(2).
See Luna v. Ohio Dept. of Job & Family Services, 6th Dist. Lucas No. L-02-1146, 2002-Ohio-6359, ¶ 6-7, citing Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 423 N.E.2d 1105 (1981), paragraph one of the syllabus (analyzing Rules of Civil Procedure rather than Rules of Appellate Procedure with respect to an administrative appeal taken to the common pleas court); Cleveland Bd. of Zoning Appeals v. Abrams, 186 Ohio App.3d 590, 2010-Ohio-1058, 929 N.E.2d 509, ¶ 23-29 (8th Dist.) (following Pitts and holding that a decision on a motion for reconsideration is a nullity). --------
{¶ 10} As we have said previously:
The facts that Plaintiffs filed a motion for reconsideration within the time period for filing a notice of appeal, that the trial court did in fact review its previous decision, and that the plaintiffs filed a notice of appeal only two days after the court's reaffirmation of its original entry, do not affect our consideration of this issue. A motion for reconsideration may not be used as a device to extend the time period for filing a notice of appeal. Bond v. Airway Development Corp. (1978), 54 Ohio St.2d 363, 8 O.O.3d 384, 377 N.E.2d 988; Ditmars v. Ditmars (1984), 16 Ohio App.3d 174, 16 OBR 184, 475 N.E.2d 164; In fact, the Ohio Supreme Court has determined that "motions for reconsideration of a final judgment in the trial court are a nullity" and may not be used to toll the running of the thirty days provided by App.R. 4. Pitts v. Ohio Depart. of Transp. (1981), 67 Ohio St.2d 378, 21 O.O.3d 238, 239; see also State, ex rel. Boardwalk Shopping Center, Inc. v. Court of Appeals for Cuyahoga County (1990), 56 Ohio St.3d 33, 564 N.E.2d 86; Sakian v. Taylor (1984), 18 Ohio App.3d 62, 18 OBR 175, 480 N.E.2d 822.Sparks v. Edingfield, 2d Dist. Greene No. 96-CA-97, 1997 WL 156581, *4 (Mar. 28, 1997). We conclude that the Omoyosis' July 10, 2017 "Motion for Reconsideration" is not one of the enumerated post-judgment motions listed in App.R. 4(B)(2) and therefore did not toll the time to appeal from the June 30, 2017 Decision of the common pleas court.
{¶ 11} As discussed above, the Omoyosis' November 27, 2017 Notice of Appeal was filed more than 30 days after the June 30, 2017 Decision they seek to appeal. It was therefore untimely. Timely filing of a notice of appeal "is a prerequisite to a civil appeal as of right." Moldovan v. Cuyahoga Cty. Welfare Dept., 25 Ohio St.3d 293, 294-295, 496 N.E.2d 466 (1986). "[F]ailure to comply with time requirements of App.R. 4(A) is a jurisdictional defect, which is fatal to an appeal." CitiBank v. Abu-Niaaj, 2d Dist. Greene No. 2011CA45, 2012-Ohio-2099, ¶ 7, citing In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, ¶ 17 and Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320, 649 N.E.2d 1229 (1995). In short, without a timely notice of appeal, this court lacks jurisdiction to consider this appeal.
{¶ 12} Accordingly, MCDJFS' motion to dismiss this appeal for lack of jurisdiction is well-taken and is SUSTAINED. This appeal, Montgomery Appellate Case No. 27816, is DISMISSED.
{¶ 13} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Montgomery County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing.
SO ORDERED.
/s/_________
MARY E. DONOVAN, Judge
/s/_________
JEFFREY E. FROELICH, Judge
/s/_________
MICHAEL L. TUCKER, Judge Copies to: Omolola Omoyosi
127 W. 15th Street, #4F
New York, NY 10011
Attorney for Appellants Joseph Saks
301 W. Third Street, 5th Floor
Dayton, Ohio 45422
Attorney for Appellee Hon. Barbara P. Gorman
Montgomery County Common Pleas Court
41 N. Perry Street
P.O. Box 972
Dayton, Ohio 45422 CA3/KY