COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60209 OLIVE LOUISE BERRY, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellants : : : and -vs- : : OPINION : K-MART DISCOUNT STORES : : Defendant-Appellee : : DATE OF ANNOUNCEMENT APRIL 2, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 175345 JUDGMENT: Dismissed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR DEFENDANT-APPELLEE: FOR PLAINTIFF-APPELLANT: Ronald J. Deery Lloyd J. Ramsey William F. Schmitz 5638 Ridge Road 1100 Illuminating Building Parma, Ohio 44129 55 Public Square Cleveland, Ohio 44113 - 1 - ANN McMANAMON, P.J.: Plaintiffs, Olive Louise Berry and her husband Bobby Berry appeal from a summary judgment in favor of defendant, K-Mart Discount Stores stemming from a fall sustained on defendant's premises. The Berrys filed a personal injury complaint against K-Mart on August 30, 1989 for injuries sustained after Olive Louise Berry slipped and fell inside the store. She alleged her fall and the injuries she sustained, "were caused by defendant's negligent maintenance of the floor to keep it free and clear of moisture and/or foreign objects." A discovery cutoff date of April 1, 1990 was set by the court. On January 31, 1990, K-Mart moved for summary judgment. The court denied a motion by plaintiffs for an extension of time to respond. On April 12, 1990, the court granted K-Mart summary judgment. Four days later, the Berrys filed a motion to respond to defendant's request for summary judgment instanter, as well as a brief in opposition, a motion for a continuance of trial, and time for discovery. They also requested an order compelling discovery. One month later, the Berrys filed motions for relief from judgment and to respond to defendant's motion for summary judgment. In a judgment entry dated July 3, 1990, the trial court granted all of these motions. On the same day the court also granted defendant's motion for summary judgment "after considering both briefs." It is from this order that plaintiffs appeal. - 2 - It is well settled that relief under Civ. R. 60(B) may not be granted merely for the purpose of allowing an appeal which would not otherwise be considered as timely under App. R. 4(A). McCue v. Insurance Co. (1979), 61 Ohio App. 2d 101, 105; Bosco v. Euclid (1974), 38 Ohio App. 2d 40. In McCue, this court stated: "Thus, if a trial court vacates and reenters a judgment other than for the purpose of accommodating an appellant whose appeal time has lapsed, the reasons must be demonstrated on the record. In other words, if a trial court wants to avoid a jurisdictional attack under similar facts, but has a valid reason for vacating and reentering a judgment, the better practice would be for the trial court to state its reason on the record. Otherwise, it will be presumed, as in the instant case, that the action by the trial court was taken solely as an accommodation to the appellant to take an appeal where the time to file an appeal had expired under App. R. 4(A). Id. at 106. In the present case, the trial court granted defendant's initial motion for summary judgment on April 12, 1990. No notice of appeal was filed by plaintiff within thirty days as required by App. R. 4. Instead, plaintiff filed a motion for relief from judgment on May 18, 1990. On July 3, 1990, the court made the following entry: "Motion for relief from judgment filed on 5/18/90 by plaintiff is granted. "Motion for leave to file response to motion for summary judgment filed by plaintiff is granted. "After considering both briefs, motion for summary judgment filed on 1/31/90 by defendant is granted." There is no explanation in the record to indicate why the trial court vacated its judgment of April 12, 1990 and re-entered an identical judgment almost three months later. The notice of appeal was filed on July 27, 1990, three weeks after the second entry, but over three months after the original judgment. Under - 3 - these facts, since the final judgment was entered on April 12, 1990, the notice of appeal was not timely under App. R. 4(A). Because the timely filing of an appeal is jurisdictional, we have no authority to entertain the present appeal. - 4 - Appeal dismissed. It is ordered that appellee recover from appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., KRUPANSKY, J., CONCUR. PRESIDING JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .