Airline Union Mortgage v. Sullivan, Unpublished Decision (6-22-2005) ( 2005 )

ENTRY DISMISSING APPEAL. Although having previously overruled the motion of the defendants-appellees, First Service Title Agency, Inc., and Aimee Kite, to dismiss the appeal in this case, we have since reconsidered the motion and now determine that it has merit. It is not disputed that the plaintiff-appellant, Airline Union Mortgage Co., did not appeal from the trial court's July 29, 2004, entry granting summary judgment. Rather, the company filed a timely motion for a new trial, which was denied by the trial court on September 9, 2004. It is from the denial of the motion for a new trial that the company has brought this appeal.

In L.A. D., Inc. v. Board of Lake County Commissioners (1981),67 Ohio St.2d 384, 423 N.E.2d 1109, the Ohio Supreme Court held that a summary-judgment proceeding is not a trial for purposes of Civ.R. 59, and that a motion for a new trial that questions the granting of summary judgment is a nullity, incapable of tolling the time for filing a notice of appeal from the summary judgment. L.A. D. was later cited with approval by the Ohio Supreme Court in First Bank of Marietta v. Mascrete,79 Ohio St.3d 503, 1997-Ohio-158, 684 N.E.2d 38. On the authority of these two cases, we are without jurisdiction over this appeal, having no recourse but to dismiss it as untimely.

Appeal dismissed.

Hildebrandt, P.J., Gorman and Sundermann, JJ.