[Cite as Battle v. Favreau, 2014-Ohio-2170.]


                                        COURT OF APPEALS
                                      MORGAN COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

BILLY J. BATTLE                                   JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 13AP0004
DAN W. FAVREAU, ET AL.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Morgan County Court of
                                               Common Pleas, Case No. 13 CV 0042


JUDGMENT:                                      Dismissed


DATE OF JUDGMENT ENTRY:                         May 19, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


BILLY BATTLE, PRO SE                           LINDA L. WOEBER
S.C.C Inmate #A617-868                         BRIAN M. SPIESS
5900 B.I.S. Road                               Montgomery, Rennie & Jonson
Lancaster, Ohio 43130                          36 East Seventh Street, Suite 2100
                                               Cincinnati, Ohio 45202
Morgan County, Case No. 13AP0004                                                           2

Hoffman, P.J.


       {¶1}   Defendant-appellant Dan W. Favreau appeals: 1) the September 4, 2013

Decision entered by the Morgan County Court of Common Pleas granting in part

Appellant's Motion to Dismiss the complaint against him filed by plaintiff-appellee Billy J.

Battle; and 2) the October 24, 2013 Decision by that same court denying

reconsideration.

                                  STATEMENT OF THE CASE1

       {¶2}   Appellee filed a complaint against Appellant on April 16, 2012, asserting

six claims for relief which the trial characterized as the following four causes of action:

1) slander and defamation; 2) negligence to prevent a conspiracy; 3) intentional infliction

of emotional distress; 4) deprivation of his Civil Rights in failing to prevent a conspiracy.

Appellant filed a motion to dismiss all claims against him on April 15, 2013, on the basis

of absolute judicial immunity and failure to state a valid claim.

       {¶3}   Via Decision filed September 4, 2013, the trial court granted Appellant's

motion to dismiss, except for Appellee's defamation claim and intentional infliction of

emotional distress claim. Appellant filed a motion for reconsideration on September 18,

2013, reasserting as it basis absolute judicial immunity.           The trial court denied

Appellant's motion to reconsider via Decision filed October 24, 2013.

       {¶4}   On November 22, 2013, Appellant filed his Notice of Interlocutory Appeal

of the portion of the trial court's September 4, 2013 Decision denying, in part, his motion




1
 A rendition of the facts alleged in Appellee's complaint is unnecessary of our resolution
of this appeal.
Morgan County, Case No. 13AP0004                                                           3


to dismiss and the trial court's October 24, 2013 Decision denying his motion to

reconsider.

      {¶5}    Appellant' assigns as error;

      {¶6}    "I. THE TRIAL COURT ERRED IN PARTIALLY DENYING THE

HONORABLE JUDGE DAN FAVREAU'S MOTION TO DISMISS BILLY BATTLE'S

CLAIMS BY DENYING THAT ABSOLUTE JUDICIAL IMMUNITY PROTECTED JUDGE

FAVREAU FROM LIABILITY AS TO HIS ALLEGED STATEMENTS MADE ON APRIL

16, 2012.

      {¶7}    "II. THE TRIAL COURT FURTHER ERRED WHEN IT FAILED TO

RECONSIDER ITS DECISION AND HELD AGAIN THAT ABSOLUTE JUDICIAL

IMMUNITY DID NOT APPLY TO THE JUDGE'S ALLEGED STATEMENT."

      {¶8}    Initially, Appellant raises the issue of this Court's jurisdiction to review an

interlocutory appeal concerning the denial of absolute judicial immunity.          Appellant

analogizes to Ohio's sovereign immunity law as a reason to find the trial court's

decisions are immediately reviewable "Because immunity is immunity…" (Appellant's

Brief at p.3). We find Appellant's argument unpersuasive.

      {¶9}    Unlike the legislature's specific declaration the denial of Ohio's statutorily

created sovereign immunity is a final appealable order pursuant to R.C. 2744.02(C), the

legislature has not done so with regard to the absolute judicial immunity established

through common law. Because we find the trial court's entry does not finally determine
Morgan County, Case No. 13AP0004                                                        4


all claims asserted, nor prevent a judgment in Appellant's favor, we find this Court does

not have jurisdiction over this appeal pursuant to R.C. 2505.02.2

      {¶10} Appellant's appeal is dismissed.


By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur




2
  We note, had we accepted Appellant's assertion this Court has jurisdiction over this
"interlocutory appeal," we would still dismiss Appellant's appeal for lack of jurisdiction
because it was untimely filed. A motion for reconsideration does not toll the time to file
an appeal from an otherwise final appealable order.
Morgan County, Case No. 13AP0004   5
