COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 61016, 61463 : UNIVERSITY CARNEGIE MEDICAL : PARTNERS ASSOCIATES : : JOURNAL ENTRY Plaintiff-Appellee : and Cross-Appellant : and -vs- : : OPINION CLEVELAND THERAPY CENTER, ET AL. : : : Defendants-Appellants : and Cross-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 15, 1992 CHARACTER OF PROCEEDING: Civil appeals from Cleveland Municipal Court Case No. 89-CVF-28479 JUDGMENT: Judgment Affirmed in Case No. 61016; Judgment Reversed in Case No. 61463. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant and Cross-Appellant: and Cross-Appellee: JACOB A. FRYDMAN, ESQ. WILLIAM T. WHITE, ESQ. 600 University Cedar Center MARK A. AMENDOLA, ESQ. 10900 Carnegie Avenue White & Pfeiffer Co. Cleveland, Ohio 44106 1900 Bond Court Building Cleveland, Ohio 44114 - 2 - HARPER, J.: This appeal and cross-appeal arise from an order of the Cleveland Municipal Court which granted summary judgment in favor of plaintiff-appellee, University Carnegie Medical Partners Associates ("lessor"), and against defendants-appellants, Cleveland Therapy Center, Inc. and Patrice Querry ("lessees"), and a subsequent ruling in a garnishment proceeding. The lessees were tenants in the University Cedar Medical Center located at 10900 Carnegie Avenue, Cleveland, Ohio, when the lessor acquired the building on September 30, 1987. The lessees' lease expired on March 31, 1988 at which time a new lease was negotiated with the lessor for the period commencing on April 1, 1988 and ending on March 31, 1990. The lessees leased suite 207 in the building in order to operate medical offices and treatment areas. On September 30, 1989, the lessees vacated Suite 207. The move was allegedly motivated by the inadequacy of the building's air conditioning system. The lessees claimed that the unbearable heat and humidity caused headaches, dizziness and irritability in the office staff and patients. Moreover, financial losses were allegedly realized when patients became reluctant to seek treatment because of the lack of air conditioning. The lessor initiated an action on October 6, 1989 to collect Termination Damages and Liquidated Damages, as defined in the lease, when the lessees allegedly failed and refused to pay rent due under the lease for the period commencing October 1, 1989. In their answer, the lessees admitted that they refused to pay - 3 - the rent as alleged but averred that they were constructively evicted from the premises on September 30, 1989. Consequently, a counterclaim was filed for the return of the lessees' security deposit, breach of the lessor's contractual duty to repair the premises, and breach of quiet enjoyment of the premises. The trial court thereafter granted the lessor leave to file a motion for summary judgment on September 10, 1990. The motion was supported by affidavits and other documentary evidence, including the lease. The lessees responded to the motion but provided no documentary evidence or affidavits. The trial court initially denied the lessor's motion but, upon its motion for reconsideration, granted judgment in favor of the lessor on its complaint in the amount of $8,592.36 plus costs and the lessees' counterclaim on November 14, 1990. The lessees appealed from this ruling. (Case No. 61016.) The lessor subsequently filed a garnishment notice against Society National Bank ("Society") on November 21, 1990. Society filed its answer together with a check in the amount of $8,592.36. The lessees then filed a Motion to Stay in the Cleveland Municipal Court which was granted on December 20, 1990. The lessor challenged the trial court's ruling, with a Motion to Vacate Order Granting Stay of Execution of Judgment. The trial court vacated the stay order when the lessor asserted that the lessees fraudulently conveyed to the court that a copy of their motion was served on the lessor on December 13, 1990 when it was - 4 - not served until December 19, 1990. The Clerk of Cleveland Municipal Court disbursed the garnished funds to the lessor on January 10, 1991 as a result of the lessor's communication with the trial court. The lessees, unaware of the disbursement of funds and believing they had until January 16, 1991 to seek a stay from this court, filed a Motion to Stay Execution with this court on January 15, 1991. We granted the motion, stating in a journal entry: "MOTION BY APPELLANT TO STAY EXECUTION OF JUDGMENT IS GRANTED EFFECTIVE UPON APPELLANTS' POSTING A SUPERSEDEAS BOND IN THE AMOUNT OF $2,000.00. THE CLERK OF THE CLEVELAND MUNICIPAL COURT IS INSTRUCTED TO RETAIN CUSTODY OF THE $8,652.36 PREVIOUSLY PAID INTO THAT COURT PENDING THE DISPOSITION OF THIS APPEAL." The lessees, on January 18, 1991, filed a "Motion for an Order Directing the Return of Funds to Clerk of Court." The trial court granted the motion without a hearing on February 7, 1991. The trial court denied the lessor's Motion for Reconsideration. The lessor now appeals from the trial court's rulings on the lessees' and lessor's motions. (Case No. 61463.) Case Nos. 61016 and 61463 are consolidated for briefing and disposition upon agreement of counsel. A careful review of the record compels affirmance in Case No. 61016 and reversal in Case No. 61463. I. The lessees complain in their second assignment of error that: - 5 - "II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN IT ULTIMATELY GRANTED PLAINTIFF-APPELLEE'S MOTION FOR SUMMARY JUDGMENT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND FOUND FOR THE PLAINTIFF-APPELLEE ON THE COUNTERCLAIM." The lessees argue that the trial court erred as a result of granting the lessor's motion for summary judgment with regard to the complaint and counterclaim. Specifically, the lessees assert that genuine issues of material fact existed for the trier of fact regarding the lessees' liability for rent due when they were constructively evicted from the premises and endured financial losses. A trial court's disposition of a motion for summary judgment is controlled by Civ. R. 56(C), which provides in pertinent part that: "*** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. ***" A trial court is required to grant a motion for summary judgment when there exists no genuine issues of material fact for the trier of fact and the moving party is entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio - 6 - St.2d 1; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. In addition, after a motion for summary judgment has been made and supported by documentary evidence, an adverse party may not rest upon the mere allegations or denials of his pleadings, but he must respond with documentary evidence, as provided in Civ. R. 56(C), setting forth specific facts showing there is a genuine issue for trial. Citizens Ins. Co. v. Burkes (1978), 56 Ohio App.2d 88. Although the non-moving party is entitled to a favorable construction of the evidence, where the appellant has not produced countering affidavits, appellee's affidavits are accepted as true. Stemen v. Shibley (1982), 11 Ohio App.3d 263, 268. The goal of a court interpreting a contract is to determine the intent of the parties. Stony's Trucking Co. v. Pub. Util. Comm. (1972), Ohio St.2d 139; Yoder v. Electric Co. (1974), 39 Ohio App.2d 113. If a contract is clear and unambiguous the court need not go beyond the contract's plain language to determine the rights and duties of the parties. Uebelaker v. Cincom Systems, Inc. (1988), 48 Ohio App.3d 268. In a non- residential lease situation, as we have here, the plain language of the lease controls. See Trebmal Construction, Inc. v. George (Aug. 16, 1990), Cuyahoga App. No. 57350, unreported. The sections of the lease between the parties relevant to the issue of constructive eviction and breach of contract read as follows: "* * * - 7 - "6.4 Condition of Premises. Except as expressly set forth in this Lease, no representations or warranties have been made by or on behalf of Landlord with respect to the Premises or the Project, or with respect to their suitability for the conduct of Tenant's business. The taking of possession of portions of the Premises by Tenant shall conclusively establish that such portions of the Premises and the Project were at that time in satisfactory condition, order and repair. "* * * "7.1 Landlord's Repairs. Except as provided in Section 7.2 below * * * Landlord shall make all repairs necessary to maintain the heating, ventilating and air conditioning ('HVAC') systems * * * which are installed or furnished in or to the Premises by Landlord. Landlord shall have no obligation to make any such repairs until the expiration of a reasonable period of time after written notice (that such repair is needed) is received by Landlord from Tenant * * *. "* * * "8.1 Services Provided by Landlord. Landlord shall perform and provide the following services and facilities: "(a) HVAC through the Building's HVAC systems, in accordance with reasonable standards set by Landlord from time to time, during the hours of 8:00 a.m. to 6:00 p.m. Monday through Friday and 9:00 a.m. to 1:00 p.m. Saturday, exclusive of national holidays ('Normal Business Hours'); "8.2 Suspension of Services. Landlord reserves the right, without abatement of or diminution in Rent and without any liability to Tenant or any third party as a result thereof, to suspend, delay or discontinue furnishing any of the services to be provided by Landlord under this Lease whenever occasioned by reason of an Event of Force Majeure (as defined in Section 19.3 hereof) or at the request of Tenant. * * * "* * * "19.3 Force Majeure. In the event that Landlord shall be delayed or hindered in, or prevented from, the performance of any covenant or obligation of Landlord hereunder, as a result of strikes, lockouts, shortages of labor, fuel or material, acts of God, causes - 8 - associated with weather, any applicable law, rule, ordinance, regulation, order, permit or requirement, enemy act, civil commotion, unavoidable fire or other casualty, or any other cause or circumstance beyond the control of Landlord (each of the foregoing being sometimes herein referred to as an 'event of Force Majeure'), then the performance of such covenant or obligation shall be excused for the period of such delay, hindrance or prevention and the period for the performance of such covenant or obligation shall be extended by the number of days equivalent to the number of days of such delay, hindrance or prevention. In no event shall any such delay or hindrance in or prevention from the performance of any such covenant or obligation constitute a termination of this Lease or the eviction of Tenant from the Premises. "Landlord shall in no event be required to settle or compromise any strike, lockout or other labor difficulties or disputes, the resolution thereof being within the sole discretion of Landlord. Anything to the contrary contained in this Section notwithstanding, Tenant shall not be excused or relieved from the obligation to pay Rent under this Lease due to any such delay, hindrance or prevention. "19.4 Covenant of Quiet Enjoyment. Landlord, for itself and its successors and assigns, does hereby covenant with Tenant that, upon performing the covenants and obligations on Tenant's part to be kept and performed under this Lease, Tenant shall and may peaceably and quietly have, hold and enjoy the Premises during the Term without any hindrance of any person whomsoever claiming under or through Landlord, subject, however, to all the terms and provisions of this Lease, and to the conditions, use restrictions and other provisions set forth in the Euclid Urban renewal Project I Plan recorded at Volume 111, Page 9, and/or in the deed from the City of Cleveland recorded at Volume 84-1918, Page 43, of the records of the Cuyahoga County, Ohio Recorder, as now or hereafter amended." (Emphasis added.) Exhibit "D" to the lease reads in pertinent part as follows: "I. Landlord's Work "Tenant: (a) acknowledges that all or a portion of the Premises has been previously occupied or improved; (b) agrees that Tenant will accept the Premises, and the existing floor in and electrical, sprinkler, plumbing, heating, ventilation, air conditioning and - 9 - other systems serving the Premises, in their 'as is' condition on the date of delivery of possession by Landlord; (c) that landlord's work ('Landlord's Work') consists of the following: none; and (d) that Landlord shall have no responsibility for (i) the removal or modification of any existing construction or equipment, (ii) the undertaking of any alterations or additional improvements, or (iii) the installation of any equipment." (Emphasis added.) Initially, it is noted that the only time frame to be examined for purposes of appeal started on April 1, 1988 when the parties negotiated a new lease. The lessees' complaints which predated the second lease were waived upon execution of the new lease. The term of the lease entered into by the parties began on April 1, 1988 and ended on March 31, 1990. Sections 2.1, 2.2. The basic rent during the first year of the lease was $9,012 with monthly installments of $751. The second year's basic rent was $9,763 to be paid in monthly installments of $813.58. Each monthly installment was due on the first day of each calendar month. Section 3.2. The failure of the lessees to pay the rent due under the lease within ten (10) days from the payment date constitutes an "Event of Default." Section 14.1(f), (i). The lessees thus became liable to the lessor for Termination Damages and Liquidated Damages upon termination of the lease when the default of non-payment of rent occurred on October 1, 1989 and thereafter. Sections 14.2, 14.3. The lessees, in their answer, counterclaim and brief in opposition to the lessor's motion for summary judgment, asserted breach of contract and the common law defense of constructive - 10 - eviction. However, the lessees failed to respond to the lessor's motion by providing documentary evidence to rebut the facts established by the lessor's affidavits and other evidence. Thus, the lessor's affidavits are accepted as true. The affidavit of Greg Montali, employed by Gardener as the Service Manager, averred that the air conditioning system on the premises was maintained in good condition since April 1, 1988. Regular, preventative maintenance was performed under his supervision. Montali then outlined how, due to unforseen circumstances, the air conditioning system was not working for the period of August 2 or 3, 1989 to August 25, 1989 and again from August 28, 1989 to September 13, 1989. However, without affidavits from the lessees, there are no genuine issues of material fact as to how this affected the lessees' business or how the lessor breached the lease agreement. The necessary affidavits could have been easily procured from the lessees' physicians and/or patients. We must, therefore, conclude that the trial court did not err in granting summary judgment in favor of the lessor on its complaint and the lessees' counterclaim on the issue of breach of contract and of quiet enjoyment. For the same reasoning, we also find that the trial court did not err in granting judgment in favor of the lessor on the remaining count in the lessees' counterclaim, the return of the security deposit. The lease provides in pertinent part in Section 3.3: "3.3. Security Deposit: Tenant shall, simul- taneously upon execution hereof, deposited [sic] with - 11 - Landlord ZERO Dollars ($0) as security for the full and faithful performance of each of the obligations * * *." No evidence was presented to this court to contradict the contract's provision that the lessees were not required to deposit any sum of money with the lessor as security. Finally, Section 9.1 of the lease provides: "9.1 Limitation of Landlord's Liability. Neither Landlord nor any of its partners, agents, employees or representatives shall be liable for any injury, damage or loss of any nature whatsoever to persons or property (whether of Tenant or any other person) occurring, upon or about the Project (including without limitation the Premises), even if such injury, damage or loss arises out of or is due to, or is asserted or alleged to arise out of or be due to, any act (whether of commission or omission) of Landlord or any of its partners, agents, employees or representative. * * *" (Emphasis added.) Ohio case law clearly demonstrates the acceptance of a limit of liability clause when contained in a commercial lease. Fireman's Fund Ins. Co. v. BPS Co. (1985), 23 Ohio App.3d 56. In the present case, the language in Section 9.1, which limits the lessor's liability for damages is simple, direct and easily understood. Furthermore, it was never asserted that the lessor and lessees were not of equal bargaining power or that the section was modified by a subsequent oral agreement. Therefore, even if the lessees proved breach of contract, the lessor was not liable to appellant with regard to any damage caused by any act or omission of the lessor. See, United Industries v. Dave Polson (Apr. 2, 1992), Cuyahoga App. No. 60123, unreported. Accordingly, appellants' second assignment of error is overruled. II. - 12 - For its first assignment of error, the lessees assert that: "I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANTS-APPELLANTS' RIGHT TO A TRIAL BY JURY AND PROCEEDED TO DISPOSE OF THIS CASE BY SUMMARY JUDGMENT." The lessees endorsed a Civ. R. 38 jury demand on their answer and counterclaim. A $200 deposit accompanied the jury demand as required by Local Rule 6.10 of the Cleveland Municipal Court. The lessor moved to dismiss the jury demand based upon Section 19.5(b) of the lease. The section provides: "Tenant waives the right to trial by jury in any summary proceeding that may hereafter be instituted against it or in any action that may be brought to enforce any right or remedy hereunder." The trial court granted the lessor's motion. The lessees argue the trial court committed reversible error in denying them their right to a jury trial. A jury trial once demanded may not be waived except by the exclusive method prescribed in Civ. R. 39. Carl Sectional Home, Inc. v. Key Corp. (1981), 1 Ohio App.3d 101, 103; Cincinnati Ins. Co. v. Gray (1982), 7 Ohio App.3d 374, 377. Civ. R. 39 provides in pertinent part: "*** The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist. * * *" (Emphasis added.) An individual's right to a jury trial is not abridged by the proper granting of a motion for summary judgment. Houk v. Ross - 13 - (1973), 34 Ohio St.2d 77, 83-84; Sawchyn v. Buckeye Union Insurance Co. (May 14, 1992), Cuyahoga App. No. 60510, unreported. As this court ruled in the lessees' second assignment of error, supra, the trial court's granting of summary judgment was proper. The lessees were not, therefore, denied their right to a jury trial. This ruling renders moot the issue of whether the lessees waived their right to jury trial in the contract. Appellants' first assignment of error is overruled. III. In their third assignment of error, the lessees contend that: "III. THE DEFENDANTS-APPELLANTS WERE WRONGFULLY DEPRIVED OF THEIR FUNDS WHEN COUNSEL FOR PLAINTIFF-APPELLEE FRAUDULENTLY REMOVED SAID FUNDS WHICH WERE ON DEPOSIT WITH THE OFFICE OF THE CLERK OF COURTS." The lessor, in its second assignment of error, asserts that: "II. THE TRIAL COURT ERRED IN ENTERING ITS ORDERS OF FEBRUARY 7, 1991 AND FEBRUARY 14, 1991, THAT SAME WERE OBTAINED BY DEFENDANT/CROSS-APPELLEE BY FRAUD, AND THAT SAME DEPRIVED PLAINTIFF-APPELLEE OF ITS STATUTORY AND CONSTITUTIONAL RIGHT TO EXECUTE ON A VALID JUDGMENT." These assignments of error are reviewed jointly since they involve similar facts and legal concepts. The trial court granted judgment in favor of the lessor in the amount of $8,592.36 plus costs on November 14, 1990. Thereafter, the following activity occurred: 11/20/90 Lessor initiated a garnishment proceeding against Society National Bank of Cleveland ("Society") - 14 - pursuant to R.C. 2716.11. Hearing was scheduled for December 12, 1990. R.C. 2716.13(A). 11/26/90 Notice of garnishment was served along with a hearing request form to the lessees as required by R.C. 2716.13(C)(1). 12/07/90 The lessees completed, dated, and signed the hearing request form. 12/11/90 Lessees' counsel wrote a letter in which the lessor was informed that the lessees filed a "Notice of Appeal" in the Cleveland Municipal court. 12/12/90 Lessees' counsel wrote a letter in which the lessor was informed that the lessees filed a Motion to Stay Execution in the Cleveland Municipal Court. 12/12/90 Cleveland Municipal Court received the lessees' request for hearing form. 12/12/90 Society filed its answer in the garnishment proceeding along with a check in the amount of the judgment. 12/13/90 The lessees filed the originals of both the Notice of Appeal and the stay motion with the Cleveland Municipal Court. 12/15/90 The lessor's counsel received the letter written by the lessees' counsel on December 11, 1990, informing of the appeal. 12/18/90 The Clerk of Cleveland Municipal Court collected the funds from Society. 12/19/90 The trial court's bailiff contacted the lessor's counsel by telephone with the information that the lessees' motion to stay was granted. 12/19/90 Lessees' counsel mailed the stay motion letter written on December 12, 1990 to lessor's counsel. 12/20/90 The trial court journalized the judgment entry which granted the lessees' motion to stay. 12/21/90 Lessor received a copy of the stay order and a copy of lessees' stay motion; lessor then filed a Motion to Vacate Order Granting Stay of Execution of Judgment. - 15 - 01/03/91 Hearing had in garnishment proceeding. Lessees raised the stay order at which time the court referee continued the case. The funds were not, therefore, released to the lessor at this time. 01/07/91 Lessor filed a Supplemental Brief in Support of Motion to Vacate Order Granting Stay of Execution of Judgment, alleging that lessees committed "fraud upon the court" by certifying that the Motion to Stay was served on the lessor on December 13, 1990 when it had not been so served until December 19, 1990. 01/08/91 The trial court granted the lessor's motion and vacated the stay order. 01/09/91 A second hearing was held in the garnishment proceeding. The referee was informed that the stay order was vacated and that the lessees filed a "Notice of Appeal". The referee continued the case to January 16, 1991 in order to allow the lessees the opportunity to receive a stay from this court. Therefore, the funds were still not released to the lessor at this time. 01/10/91 Lessor's counsel directly contacted the trial court to seek assistance in securing the funds. Counsel, relying on the vacating of the stay order, requested that the trial court release the funds. The trial court ordered the funds released; the Clerk disbursed the funds to the lessor. 01/15/91 Lessees filed a Motion to Stay Execution with this court. 01/16/91 This court contacted lessor's counsel that the lessees' motion to stay was granted. In a judgment entry, we advised that the stay order was effective upon the posting of a $2000 supersedeas bond. We also directed that the Clerk retain custody of the $8652.36 pending the disposition of this appeal. 01/16/91 A third hearing was held in the garnishment proceeding. The referee was informed that the garnished funds were released to the lessor per the instructions of the trial court. The lessor pointed out to the referee that the stay order was not effective until the lessees posted a - 16 - supersedeas bond in the amount of $2000 which was not yet done. 01/18/91 Lessees filed a Motion for an Order Directing the Return of Funds to Clerk of Court with the Cleveland Municipal Court. 02/05/91 Lessor filed its Brief in Opposition to the lessees' motion. 02/07/91 The trial court issued its order which granted the lessees' motion. The order stated: "As an officer of the Court, it was the duty and responsibility of plaintiff's attorney to fully and completely advise this Court of the events and proceedings which had taken place in the garnishment hearing. On January 10, 1991 plaintiff's attorney did not advise this Court of any of the events or the rulings at the garnishment hearing. "In not disclosing these essential facts to this Court, plaintiff's attorney failed in his responsibility to this Court. If the Court had been made aware of those facts, the Court would not have ordered the release of the funds. "Motion granted. Entry of January 8, 1991 is vacated and plaintiff is directed to return the funds to the office of the Clerk of Courts." Generally, a trial court loses jurisdiction after an appeal, except to take action in aid of an appeal or when a remand is ordered for a ruling on a pending motion; the trial court retains only that jurisdiction not inconsistent with that of the appellate court to review, affirm, modify or reverse the order from which the appeal is perfected. Yee v. Erie County Sheriff's Dept. (1990), 51 Ohio St.3d 43, 44; In re Kurtzhalz (1943), 141 Ohio St. 432, paragraph two of the syllabus. Although the trial court retains jurisdiction over issues not inconsistent with the appellate court to review, modify, affirm or reverse the - 17 - judgment, it does not regain jurisdiction over matters subject to the appeal in the absence of a reversal and remand by the appellate court. State, ex rel. Special Prosecutors v. Judges (1978), 55 Ohio St.2d 94. Here, one of the issues presented on appeal is whether either party committed fraud upon the court during the pendency of the garnishment proceeding. We are compelled to announce that the trial court lost its jurisdiction when the appeal was taken, and, therefore, the trial court's order of February 7, 1991 is null and void for lack of jurisdiction. Accordingly, the lessor's second assignment of error is sustained. This court must now address the issue presented in the lessees' third assignment of error, whether they were wrongfully deprived of funds when lessor's counsel removed the funds which were on deposit with the Clerk. The issuance of a garnishment order bestows upon the judgment creditor a chose in action against the garnishee. Once the funds are paid into court pursuant to the order, the judgment creditor obtains a lien upon the funds. State, ex rel. Auto Loan Co. v. Jennings (1968), 14 Ohio St.2d 152. The judgment creditor also receives "a chose in action against the public official holding the funds to compel payment to the creditor pursuant to the court order." Id. Herein, at the time the lessor solicited the trial court's help in disbursing the funds on January 10, 1991, two facts are clear. First, the garnished funds were in the possession of the - 18 - clerk. Second, there was no stay in existence. The lessor was thus clearly entitled to the funds and the lessees were, therefore, not wrongfully deprived of them. The lessee's third assignment of error is overruled. IV. The lessor, in its first assignment of error, complains that: "I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO AWARD PREJUDGMENT INTEREST IN FAVOR OF PLAINTIFF/CROSS-APPELLANT WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF/CROSS-APPELLANT." The trial court's entry granting summary judgment was journalized on November 14, 1990. The lessor had thirty days in which to bring his appeal with regard to the summary judgment from November 14, 1990. The Notice of Appeal, as filed by the lessor on March 21, 1991, was not timely filed pursuant to App. R. 4(A). Motions for reconsideration after a final judgment are a nullity and do not suspend the time for filing a notice of appeal. Pitts v. Dept. of Transportation (1981), 67 Ohio St.2d 378, 380. Therefore, this court lacks the jurisdiction to entertain this assignment of error. Judgment affirmed in Case No. 61016; judgment reversed in Case No. 61463. - 19 - It is ordered that appellee and appellants shall share the costs herein taxed equally. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cleveland Municipal 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. Exceptions. J.F. CORRIGAN, P.J., and LEO SPELLACY, J., CONCUR. SARA J. HARPER JUDGE 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. .