[Cite as Nannicola v. Rosan, 2012-Ohio-5338.]
                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


ARMAND NANNICOLA                                )   CASE NO. 12 MA 20
                                                )
        PLAINTIFF-APPELLANT                     )
                                                )
VS.                                             )   OPINION
                                                )
JAMES EDWARD ROSAN, et al.                      )
                                                )
        DEFENDANT-APPELLEES                     )

CHARACTER OF PROCEEDINGS:                           Civil Appeal from the Court of Common
                                                    Pleas of Mahoning County, Ohio
                                                    Case No. 10 CV 3647

JUDGMENT:                                           Reversed.

APPEARANCES:

For Plaintiff-Appellant:                            Atty. David M. Moore
                                                    Atty. Neal G. Atway
                                                    Atway & Cochran, LLC
                                                    19 East Front Street
                                                    Youngstown, Ohio 44503

For Defendants-Appellees:                           Atty. Mark Devicchio
                                                    3680 Starr Centre Drive
                                                    Canfield, Ohio 44406

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                    Dated: November 14, 2012
[Cite as Nannicola v. Rosan, 2012-Ohio-5338.]
WAITE, P.J.


         {¶1}   Plaintiff-Appellant Armand Nannicola appeals the decision of the

Mahoning County Court of Common Pleas granting a motion for reconsideration in

favor of Appellees in this case after summary judgment had previously been awarded

to Appellant.      Appellees, James Edward Rosen and The Whiskey Club, LLC,

borrowed $33,000 from Appellant and failed to repay the loan, prompting Appellant to

file a breach of contract suit. Appellees, through counsel, filed an answer. Appellant

then filed a motion for summary judgment in October of 2011, and Appellees failed to

reply.    On December 13, 2011, the trial court awarded summary judgment to

Appellant in the amount of $33,000.

         {¶2}   Appellees filed a motion for reconsideration on December 22, 2011,

and the motion was granted 13 days later on January 4, 2012. Appellant filed this

appeal on February 3, 2012. Appellant argues that a motion for reconsideration is a

nullity in Ohio; that Appellees gave no indication that they intended that the trial court

treat their motion as a Civ.R. 60(B) motion for relief from judgment, and that

Appellees could not meet the requirements of a Civ.R. 60(B) motion even if it had

been so characterized. Appellant is correct on all counts. The trial court issued a

final order in favor of Appellant.              Subsequently, Appellees filed a motion for

reconsideration of that final order. Appellees clearly captioned their motion as a

motion for reconsideration. Such a motion is a nullity in Ohio. There is no indication

that Appellees or the trial court treated the motion as anything other than a motion for

reconsideration. Even if the motion had been filed as a Civ.R. 60(B) motion for relief

from judgment, Appellees did not allege any meritorious defense as required by GTE
                                                                                    -2-

Automatic Elec., Inc. v. Arc Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113

(1976).   The judgment of the trial court is reversed and summary judgment is

reinstated in favor of Appellant.

       {¶3}   Appellant presents one assignment of error that contains a number of

subissues. Appellees have not filed a brief in this appeal. Under App.R. 18(C), if the

appellee has not filed a brief, “the court may accept the appellant's statement of the

facts and issues as correct and reverse the judgment if appellant's brief reasonably

appears to sustain such action.”

       {¶4}   An order that vacates a judgment, including a judgment that grants

summary judgment, is a final appealable order. McGeary v. Brocker, 94 Ohio St.3d

440, 440, 763 N.E.2d 1175 (2002); R.C. 2505.02(B)(3).

                              ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN VACATING SUMMARY JUDGMENT

       FOR NANNICOLA.

       {¶5}   Appellant first argues that a motion for reconsideration of a final

judgment in the Court of Common Pleas of Ohio does not exist. Appellant is correct.

A trial court cannot grant a motion for reconsideration of a final judgment, and such a

motion is a nullity. Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 423 N.E.2d

1105 (1981). “Once an appealable or final judgment in a case has been journalized,

it cannot be modified by that court except as provided under Civ.R. 50(B) (motion

notwithstanding the verdict), Civ.R. 59 (motion for a new trial), or Civ.R. 60(B)

(motion for relief from judgment).” In re Guardianship of Maurer, 108 Ohio App.3d
                                                                                      -3-

354, 357, 670 N.E.2d 1030 (6th Dist.1995), citing Civ.R. 54(A) and Pitts, supra, at

380. Any decision entered pursuant to a motion for reconsideration filed after a final

judgment is entered is also a nullity. Pitts at 381; State ex rel. Clark v. Lile, 80 Ohio

St.3d 220, 685 N.E.2d 535 (1997).

       {¶6}   A trial judge does have some discretion in treating a motion seeking

reconsideration of a final order as a Civ.R. 60(B) motion for relief from judgment, but

there is no indication that the trial court exercised such discretion in this case. State

ex rel. Albourque v. Terry, 128 Ohio St.3d 505, 2011-Ohio-1913, 947 N.E.2d 169, ¶2.

In Appellees' motion for reconsideration they simply asked for more time to respond

to the motion for summary judgment, even though summary judgment had been

granted nine days earlier. The caption of Appellees' motion indicates that it was a

motion for reconsideration and nothing else. The content of the motion does not

refer to Civ.R. 60(B) or to any of the elements that would be found in a Civ.R. 60(B)

motion.   This is simply a case in which the trial court granted a motion for

reconsideration. However, following a final judgment in this matter, the trial court had

no power to grant this motion.

       {¶7}   Even if the trial court had been inclined to convert the motion for

reconsideration into a Civ.R. 60(B) motion for relief from judgment, relief would not

have been warranted based on the record before us. Civ.R. 60(B) provides that:

       [T]he court may relieve a party or his legal representative from a final

       judgment, order or proceeding for the following reasons: (1) mistake,

       inadvertence, surprise or excusable neglect; (2) newly discovered
                                                                                      -4-

       evidence which by due diligence could not have been discovered in

       time to move for a new trial under Rule 59(B); (3) fraud (whether

       heretofore denominated intrinsic or extrinsic), misrepresentation or

       other misconduct of an adverse party; (4) the judgment has been

       satisfied, released or discharged, or a prior judgment upon which it is

       based has been reversed or otherwise vacated, or it is no longer

       equitable that the judgment should have prospective application; or (5)

       any other reason justifying relief from the judgment. The motion shall

       be made within a reasonable time, and for reasons (1), (2) and (3) not

       more than one year after the judgment, order or proceeding was

       entered or taken. A motion under this subdivision (B) does not affect

       the finality of a judgment or suspend its operation.

       {¶8}   There are three basic requirements for a successful Civ.R. 60(B)

motion:   “To prevail on a motion brought under Civ.R. 60(B), the movant must

demonstrate that: (1) the party has a meritorious defense or claim to present if relief

is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.

60(B)(1) through (5); and (3) the motion is made within a reasonable time, and,

where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year

after the judgment, order or proceeding was entered or taken.” GTE Automatic Elec.,

Inc., supra, at paragraph two of the syllabus. A failure to establish any one of the

three factors set forth in GTE Automatic Elec., Inc. is generally fatal to the motion for
                                                                                       -5-

relief from judgment. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20-21, 520

N.E.2d 564 (1988).

       {¶9}   Appellees failed to establish, or even allege, any meritorious defense to

the breach of contract claim. Failure to present a meritorious defense defeats the

Civ.R. 60(B) motion and establishes reversible error on appeal if the motion was

granted. Gary R. Gorby & Assoc., L.L.C. v. McCarty, 2d Dist. No. 2010 CA 71, 2011-

Ohio-1983, ¶54; Universal Bank, N.A. v. Thornton, 8th Dist. No. 72553, 1997 WL

781718, at *3.

       {¶10} Because the trial court granted a motion for reconsideration in a matter

where a final judgment had issued, and that such a motion is a nullity, the judgment

of the trial court is reversed and the prior judgment in favor of Appellant is reinstated.


Donofrio, J., concurs.

DeGenaro, J., concurs.
