COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71930 GEORGE J. HORAK (DECEASED) : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JUDY HORAK : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION AUGUST 07, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CP D-184358 JUDGMENT: APPEAL DISMISSED. DATE OF JOURNALIZATION: ______________________ APPEARANCES: For Plaintiff-Appellee: DAVID E. MACK (#0015321) STEVENS & MACK 75 Public Square - Suite 405 Cleveland, Ohio 44113 For Defendant-Appellant: ANDREW J. SIMON (#0037264) CAMERATTA AND SIMON Security Federal Plaza 500 East Royalton Road Suite 180 Broadview Hts., Ohio 44147 SPELLACY, J.: Defendant-appellant Judy Horak ( appellant ) appeals from the trial court's grant of plaintiff-appellee George J. Horak 2 (deceased)'s motion to reinstate a previously dismissed motion to show cause. Appellant assigns the following error for review: THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED APPELLEE'S MOTION TO REINSTATE APPELLEE'S MOTION TO SHOW CAUSE WHEN PREVIOUSLY THE TRIAL COURT HAD DISMISSED APPELLEE'S MOTION TO SHOW CAUSE FOR WANT OF PROSECUTION WITHOUT INDICATING THAT SAID DISMISSAL WAS WITHOUT PREJUDICE. As this court lacks jurisdiction to determine this appeal, the appeal is dismissed. I. Appellant and George Horak married on August 29, 1964. The Horaks owned a residence located in Maple Heights. On January 21, 1977, they conveyed their interest in that property to themselves for their joint lives, establishing an Estate by the Entireties. The remainder went to the survivor. On April 17, 1989, the Horaks were granted a divorce. The judgment entry provided that the Horaks would continue to be joint owners of the marital residence for a period of sixty months. At the end of that term, the house would be listed for sale with the net proceeds being equally divided. Appellant had the right of first refusal. If the parties were unable to agree upon a price, the services of a certified real estate appraiser would be engaged. Appellant's right of first refusal expired within thirty days of the appraisal. George Horak eventually remarried. He died on November 25, 1992. At that time, the sixty-month period before which the marital residence was to be sold had not expired. On August 4, 3 1994, a motion to show cause was filed by George Horak's widow, Rosemarie Horak. She was substituted as the party plaintiff in the matter. The motion to show cause requested that the trial court hold appellant in contempt for failing to list the marital residence for sale pursuant to the divorce decree as the sixty- month period had expired. Rosemarie Horak filed a motion to appoint appraiser. Both parties filed briefs with the trial court regarding the issue of the entireties estate. On April 21, 1995, the trial court entered a judgment entry stating that the matter was heard before a referee on March 2, 1995. Rosemarie Horak was to have submitted a judgment entry by March 16, 1995. The trial court granted Rosemarie Horak until May 22, 1995, to submit a judgment entry or the motion would be dismissed for want of prosecution pursuant to Civ.R. 41(B)(1). On June 9, 1995, the trial court dismissed the motion to appoint appraiser for want of prosecution. Rosemarie Horak filed a motion to vacate the dismissal and to reinstate her motion to appoint appraiser. The trial court granted the motion. On March 15, 1996, Rosemarie Horak filed another motion to show cause. She alleged appellant had refused to allow the appraiser to enter the property and refused to place the house for sale. On August 30, 1996, the trial court found that Rosemarie Horak had not submitted a journal entry by July 16, 1996, as ordered by the magistrate. She was given until September 20, 1996, to submit a journal entry or her motion would be dismissed pursuant 4 to Civ.R. 41(B)(1) for want of prosecution. The trial court did dismiss the second motion to show cause on September 26, 1996. On October 21, 1996, Rosemarie Horak filed a motion to reinstate her show cause motion. In the motion, appellant explained counsel for both parties had agreed on a procedure to evaluate the property and had obtained an appraisal. After the appraisal was given to appellant's counsel, it was evident no settlement would take place. Rosemarie Horak averred that the matter was dismissed before her counsel could notify the trial court as to where matters stood. She attached a letter to the motion which was sent to the trial court by her counsel notifying the trial court that the parties were negotiating in good faith. Rosemarie Horak asked the trial court to vacate its dismissal and reinstate her motion to show cause. On December 17, 1996, the trial court granted Rosemarie Horak's motion to reinstate. The motion to show cause was to be set for hearing. Appellant appeals from this ruling. II. In her assignment of error, appellant contends the trial court erred by reinstating the motion to show cause. Appellant argues the dismissal under Civ.R. 41(B)(1) was with prejudice and, therefore, a final judgment entry which acted as an adjudication on the merits. Appellant maintains the judgment only could be attacked by way of a direct appeal and that the reinstatement of the motion was barred under the doctrine of res judicata. 5 Rosemarie Horak's position is that the trial court has the equitable power to vacate its previous order and reinstate the motion to show cause. She contends the trial court, in all likelihood, treated her motion to reinstate as made pursuant to Civ.R. 60(B). Rosemarie Horak argues she meets all the requirements for a Civ.R. 60(B) motion and that the matter should be sent back to the trial court for a full hearing. A dismissal for want of prosecution is considered to be with prejudice unless the trial court expressly states otherwise in its order. Civ.R. 41(B)(3); Pelunis v. G.M. & M. (1982), 8 Ohio App.3d 194. Therefore, the trial court's order of September 26, 1996, was final and the time for an appeal to be filed began to run at that point. Pursuant to App.R. 4(A), notices of appeal must be filed within thirty days of the entry of a final judgment or order. This time requirement is jurisdictional and may not be extended. Ditmars v. Ditmars (1984), 16 Ohio App.3d 174. Certain motions made after the entry of a final order or judgment may toll the time for filing a notice of appeal. See Zeff v. Rose Chevrolet, Inc. (1989), 62 Ohio App.3d 54. The filing of a motion for reconsideration does not toll the time requirement of App.R. 4(A). Ditmars, supra. Where a notice of appeal is not filed within the time prescribed by law, a reviewing court is without jurisdiction to consider issues that should have been raised in an appeal. State, ex rel. Pendell, v. Adams Cty. Bd. Of Elections (1988), 40 Ohio St.3d 58. 6 Although Rosemarie Horak's motion was styled as a motion to reinstate, there is no difference between it and a motion for reconsideration. There is no allowance in the Civil Rules of Procedure for a motion for reconsideration made after final judgment. Pitts v. Dept. Of Transportation (1981), 67 Ohio St.2d 378, paragraph one of the syllabus. Civ.R. 60(B) provides the exclusive procedure which must be followed in order for a trial court to vacate its own judgment. Kertes Ent. V. Orange Village (1990), 68 Ohio App.3d 48. The common-law rule that existed prior to the enactment of the Ohio Rules of Civil Procedure providing that a court had the inherent power to vacate or modify its own judgment made within the same term no longer exists. Dahl v. Kelling (1986), 34 Ohio App.3d 258. The Civil Rules provide the only scheme for granting relief from judgment. Cale Products, Inc. v. Orrville Bronze & Alum. Co. (1982), 8 Ohio App.3d 375. Any ruling upon a motion for reconsideration made after final judgment is a nullity. It is a legal fiction created by counsel. Pitts, supra. Rosemarie Horak attempts to circumvent the law by arguing the trial court must have considered her motion to reinstate as a Civ.R. 60(B) motion. The Pitts court remarked that the task of trying to decipher form over substance to determine if a motion for reconsideration should be treated as a different motion has left lower courts in a procedural quagmire. Id. at 381. We conclude that the trial courts, already overburdened, cannot be responsible for reviewing every motion in order to determine whether the contents of the motion should be interpreted and applied in a different, and perhaps more appropriate, 7 manner than the form or caption of the motion indicates. Such an activity would engage the trial courts in the impossible task of trying to second-guess the strategy and intentions of the parties at any point in the litigation process. Miamisburg Motel v. Huntington Natl. Bank (1993), 88 Ohio App.3d 117, 129. Rosemarie Horak's motion to reinstate makes no reference to Civ.R. 60(B). No affidavit is attached to the motion. No reference is made in the motion as to the requirements of Civ.R. 60(B) and how Rosemarie Horak meets those requirements. There is nothing in the motion as to under which provision of Civ.R. 60(B) relief should be granted. As such, it is nothing more than a motion for reconsideration. Accord Zeff, supra. Furthermore, the opposing party must be afforded notice and an opportunity to respond before a trial court has the authority to vacate its judgment. Consolidated Rail Corp. v. Forest Cartage Co. (1990), 68 Ohio App.3d 333. There is nothing in the record reflecting appellant received either notice or an opportunity to respond. There is nothing in the record indicating the trial court was presented with a motion for relief from judgment or that Rosemarie Horak asked the trial court to treat her motion to reinstate as a Civ.R. 60(B) motion. Because the issue apparently was not determined below, it will not be addressed by this court. See Sakian v. Taylor (1984), 18 Ohio App.3d 62. A motion to reinstate or for reconsideration filed with a trial court after final judgment is a nullity as are any orders or judgments pertaining to the motion. Because no timely notice of appeal was filed, this court is without jurisdiction to determine 8 the appeal. See Stein v. Wyandotte Wine Cellars, Inc. (1993), 88 Ohio App.3d 477. The appeal is dismissed due to the lack of subject matter jurisdiction. Appeal dismissed. It is ordered that appellee recover of appellant her 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 9 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. PATRICIA BLACKMON, P.J. and KENNETH A. ROCCO, J. CONCUR ________________________ LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .