Chester Twp. v. Fraternal Order of Police , 102 Ohio App. 3d 404 ( 1995 )

Although I concur with the resolution obtained by the majority, I do not agree that the trial court's order granting relief from judgment is void. The majority reaches this result by concluding that appellees' motion for relief from judgment was in actuality a motion for reconsideration. Since such a motion is not provided for in the rules, the majority continues, the trial court's entry granting the relief requested was a nullity. In obtaining this conclusion, the majority relies upon Pitts v.Dept. of Transp. (1981), 67 Ohio St.2d 378, 21 O.O.3d 238,423 N.E.2d 1105, but I do not find it applicable in the instant action.

In State ex rel. Pajestka v. Faulhaber (1977), 50 Ohio St.2d 41, 4 O.O.3d 113, 362 N.E.2d 263, the Supreme Court of Ohio addressed a matter with a similar factual scenario. Specifically, an original action was filed in the appellate court, which ordered that briefs be filed. However, appellants failed to file one, and the court dismissed the matter. Appellants then filed a motion for reconsideration and alleged that they had not received proper notice of the court's order requiring submission of the brief. The appellate court denied the motion.

In upholding the dismissal, the Supreme Court of Ohio noted that the motion for reconsideration was improper, as "appellants mistakenly attempted to file a motion not prescribed for a court having original jurisdiction." Id. at 42, 4 O.O.3d at 113,362 N.E.2d at 263. The court noted though that "[t]he proper remedy for appellants in this situation is to file a motion for relief from judgment under Civ.R. 60(B)(5). This rule provides that a party may obtain relief from the final judgment, order or proceeding of a court for any reason justifying relief from the judgment * * *." Id. The motion filed here was expressly captioned "Motion for Relief from Judgment" and brought pursuant to Civ.R. 60(B)(1) and 60(B)(5), and thus would provide a jurisdictional basis for review. As such, I believe, the motion was indeed proper and not a nullity.