[Cite as Fougere v. Estate of Fougere, 2017-Ohio-7905.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Thomas Arthur Fougere,                                :

                Plaintiff-Appellant,                  :
                                                                       No. 17AP-72
v.                                                    :            (C.P.C. No. 15CV-5856)

The Estate of Arthur Fougere et al.,                  :      (ACCELERATED CALENDAR)

                Defendants-Appellees.                 :




                                           D E C I S I O N

                                  Rendered on September 28, 2017


                On brief: Carlile Patchen & Muphy LLP, and Carl A.
                Aveni, for appellant. Argued: Carl A. Aveni.

                On brief: Thomas Arthur Fougere, pro se.


                  APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

        {¶ 1} Plaintiff-appellant, Thomas Arthur Fougere, appeals a judgment of the
Franklin County Court of Common Pleas that denied Fougere's motion for a new trial.
Because we lack jurisdiction over this appeal, we dismiss it.
        {¶ 2} On July 10, 2015, Fougere filed suit against defendants-appellees, the estate
of Arthur Fougere and estate administrator Robert B. Barnett, Jr. In the complaint,
Fougere sought to recover money due to him on a promissory note executed by Arthur
Fougere prior to his death. The estate answered the complaint and, shortly thereafter,
began its attempts to depose Fougere.
No. 17AP-72                                                                              2

      {¶ 3} On April 15, 2016, Fougere moved for summary judgment. In response, the
estate moved for a continuance pursuant to Civ.R. 56(F). In the Civ.R. 56(F) motion, the
attorney for the estate stated that he had yet to depose Fougere and needed to do so prior
to responding to Fougere's motion for summary judgment. According to the attorney,
Fougere had failed to appear for a noticed deposition and would not reply to the attorney's
attempts to schedule another deposition. In addition to requesting a continuance, the
attorney also sought an order requiring Fougere to submit to a deposition at the
courthouse on a date certain.
      {¶ 4} In an entry issued May 18, 2016, the trial court granted the estate a Civ.R.
56(F) continuance and ordered Fougere to appear at the courthouse for a deposition on
June 20, 2016. The trial court also amended the case schedule to allow time for the
deposition, further briefing on the motion for summary judgment, and a ruling on the
motion.   As part of the amendments, the trial court rescheduled the final pre-trial
conference for October 20, 2016.
      {¶ 5} Fougere did not show up for his June 20, 2016 deposition.             Because
Fougere's nonappearance violated the trial court's May 18, 2016 order, the estate filed a
motion requesting the trial court require Fougere to show cause why his action should not
be dismissed. The trial court granted the estate's motion and scheduled a show cause
hearing for September 7, 2016. Fougere appeared at that September 7, 2016 hearing and
sat for a deposition. Having secured the deposition it needed, the estate did not seek any
further sanction against Fougere.
      {¶ 6} On October 20, 2016, the estate appeared for the final pre-trial conference,
but Fougere did not. The trial court ordered Fougere to explain in writing why the court
did not have good cause to dismiss Fougere's action for lack of prosecution. Fougere
offered two inconsistent explanations for his absence: (1) he was unaware that the trial
court had rescheduled the final pre-trial conference for October 20, even though the
May 18, 2016 entry set the conference for that date, and (2) because the trial court had
extended deadlines related to the summary judgment briefing, "the possibility of [the
hearing occurring seemed] unrealistic in [Fougere's] eyes" and retaining the October 20
date for the pre-trial conference made no "logical sense." (Oct. 27, 2016 Pl.'s Resp. to
Order to Show Cause at 1, 3.)
No. 17AP-72                                                                                  3

       {¶ 7} The trial court reviewed Fougere's explanations and determined that they
did not justify Fougere's failure to attend the final pre-trial conference. The trial court
also concluded that Fougere had exhibited a pattern of dilatory conduct and
noncompliance with court orders throughout the litigation. Therefore, in a judgment
dated October 31, 2016, the trial court dismissed Fougere's action under Civ.R. 41(B)(1).
       {¶ 8} Fougere responded to the dismissal with a "Motion for New Trial." In a
judgment issued on December 28, 2016, the trial court denied Fougere's motion. In
relevant part, the trial court concluded that the motion was improper because no trial had
occurred prior to the October 31, 2016 judgment.
       {¶ 9} Fougere now appeals from the December 28, 2016 judgment, and he assigns
the following errors:
              [1.] The trial court erred and abused its discretion when it
              denied Appellant's Motion for New Trial, made pursuant to
              Civ.R. 59(A).

              [2.] The trial court erred and abused its discretion by
              dismissing Appellant's case with prejudice, in violation of
              Civ.R. 41(B)(1).

              [3.] The trial court erred and abused its discretion when it
              refused to address a fully answered Motion For Summary
              Judgment due to what appears to be extreme bias either for
              Defendant and/or against Plaintiff.

       {¶ 10} We begin and end our review of Fougere's appeal with an examination of
whether Fougere timely filed his notice of appeal. "An appeal as of right shall be taken by
filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4."
App.R. 3(A). If an appellant fails to meet the timing requirements of App.R. 4, the court
of appeals lacks jurisdiction to hear the appeal. In re H.F., 120 Ohio St.3d 499, 2008-
Ohio-6810, ¶ 17. A court of appeals without jurisdiction must dismiss the appeal, since
the court does not have the power or authority to review the issues involved. Ahmed v.
McCort, 7th Dist. No. 02 BA 8, 2003-Ohio-6002, ¶ 11.
       {¶ 11} Pursuant to App.R. 4(A)(1), "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 timing requirement of App.R. 4(A)(1) is subject to App.R.
4(A)(3), which provides that, "[i]n a civil case, if the clerk has not completed service of the
No. 17AP-72                                                                                 4

order within the three-day period prescribed in Civ.R. 58(B), the 30-day period[ ] * * *
begin[s] to run on the date when the clerk actually completes service." Thus, the clerk's
failure to complete service within three days of a final order's entry tolls the 30-day appeal
period until service is accomplished. On the other hand, if the clerk timely complies with
Civ.R. 58(B), then the 30-day appeal period begins to run on the date of the final order's
entry.
         {¶ 12} App.R. 4(B) sets forth some exceptions to the timing requirements of
App.R. 4(A). Of relevance to this appeal, under App.R. 4(B)(2)(b), if a party files a "timely
and appropriate" motion for a new trial under Civ.R. 59, "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 motion. Importantly, in order for a party to
benefit from the tolling effect of App.R. 4(B)(2)(b), the motion for a new trial cannot be
untimely filed or inappropriate under the circumstances. See Besman v. Leventhal, 8th
Dist. No. 104414, 2017-Ohio-464, ¶ 13 (refusing to apply the App.R. 4(B)(2)(b) exception
because the appellant's motion for a new trial was inapplicable to the type of proceeding
pending before the trial court); Citibank (South Dakota) N.A. v. Abu-Niaaj, 2d Dist. No.
2011 CA 45, 2012-Ohio-2099, ¶ 9 (holding that an untimely motion for a new trial did not
extend the 30-day period for appealing a final order).
         {¶ 13} Here, the trial court entered a final order dismissing Fougere's action on
October 31, 2016. The Franklin County Clerk of Courts served notice of that order on the
parties and noted the service in the docket on the same date. The clerk, therefore, served
the order as required by Civ.R. 58(B). Thus, under App.R. 4(A), Fougere had 30 days
from October 31, 2016 (i.e., until November 30, 2016) to file a notice of appeal. As
Fougere did not file his notice of appeal until January 27, 2017, he missed the deadline for
filing unless the App.R. 4(B)(2)(b) exception applies and extends that deadline.
         {¶ 14} Conceivably, Fougere could rely on the App.R. 4(B)(2)(b) exception because
he filed a "Motion for New Trial." However, labelling a filing as a motion for a new trial
does not automatically mean that the filing extends the time for initiating an appeal.
Ahmed, 7th Dist. No. 02 BA 8, 2003-Ohio-6002, at ¶ 14. A motion for a new trial is a
nullity unless it is filed after a trial has occurred. State ex rel. Batten v. Reece, 70 Ohio
St.2d 246, 248 (1982); accord Wolf-Sabatino v. Sabatino, 10th Dist. No. 12AP-307, 2012-
No. 17AP-72                                                                                 5

Ohio-6232, ¶ 13 (holding that "a motion for a new trial properly lies only after a trial"). A
proceeding is a trial for Civ.R. 59 purposes when the indicia of trial substantially
predominate in the proceeding. First Bank v. Mascrete, Inc., 79 Ohio St.3d 503, 507
(1997). Those indicia include: (1) whether pleadings initiated the proceeding, (2) whether
the proceeding took place in court, (3) whether a judge or magistrate was present and
presided over the proceeding, (4) whether the parties or their counsel were present, (5)
whether the parties or counsel introduced evidence, (6) whether the parties or counsel
presented arguments in court, (7) whether a judge or magistrate decided issues of fact, (8)
whether the issues decided were central or ancillary to the primary dispute between the
parties, and (9) whether a judgment was rendered on the evidence. Id.
       {¶ 15} After considering the above indicia, courts have found motions for new
trials appropriate where there has been an in-court hearing succeeded by a judgment
ruling on the issues argued and evidence heard at the hearing. Id. at 506-08; Wolf-
Sabatino at ¶ 14. Here, however, no such hearing occurred. The October 31, 2016
dismissal resulted after the trial court ordered Fougere to explain in writing why the court
did not have good cause to dismiss his action and Fougere complied with that order.
Thus, there was no proceeding in court before a neutral adjudicator where the parties or
counsel offered argument or sworn evidence. Moreover, the issue the trial court decided
in the October 31, 2016 judgment was not initiated by the pleadings and was ancillary to
the primary dispute between the parties. Accordingly, we conclude that no trial occurred
here, and consequently, Fougere could not file a legitimate motion for a new trial.
       {¶ 16} Because Fougere's motion for a new trial was inappropriate, the filing of
that motion does not toll the 30-day appeal period. Therefore, Fougere failed to timely
initiate his appeal, and his failure deprives this court of jurisdiction. We thus dismiss this
appeal.
                                                                          Appeal dismissed.

                               SADLER and HORTON, JJ., concur.
