[Cite as West Gate Ford Truck Sales, Inc. v. M&R Trucking, L.L.C., 2016-Ohio-7318.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

WEST GATE FORD TRUCK SALES, 

INC. 

 PLAINTIFF-APPELLEE 

VS. 

M & R TRUCKING, LLC 

 DEFENDANT-APPELLANT 

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CASE NO. 14 MA 0088 

OPINION 

CHARACTER OF PROCEEDINGS: Appeal from the County Court No. 5, 

Small Claims Division, of Mahoning 

County, Ohio 

Case No. 2012 CVI 480 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee Attorney Elizabeth Farbman 

Attorney Louis Alexander, Jr. 

100 East Federal Street, Suite 600 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney John Laczko 

3685 Stutz Drive, Suite 100 

Canfield, Ohio 44406 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Carol Ann Robb 

 

 

 Dated: October 6, 2016 
[Cite as West Gate Ford Truck Sales, Inc. v. M&R Trucking, L.L.C., 2016-Ohio-7318.]

DeGENARO, J. 

{¶1} Defendant-Appellant, M & R Trucking, LLC appeals the trial court's 

judgment denying its motion to vacate the judgment on the merits and for a new trial. 

Because M & R's appeal is instead an untimely challenge to the original judgment, 

we lack jurisdiction to consider the merits of this appeal.

{¶2} West Gate Ford Truck Sales, Inc. filed a small claims complaint against 

M&R for services rendered. M&R did not file an answer, but did file a counterclaim to 

which West Gate replied. After a trial, Westgate was awarded judgment and M&R's 

counterclaim was denied. No appeal was taken from this judgment. 

{¶3} Instead, M&R filed a motion to vacate the judgment as well as a timely 

motion for new trial which were opposed by West Gate. The trial court denied these 

motions, and two weeks later M&R filed an appeal of this judgment only; the original 

judgment still was not appealed. 

{¶4} M&R's sole assignment of error asserts: 

The trial court denied Appellant Due Process under the Fourteenth 

Amendment due to the fact that Court’s decision granting Appellee’s 

request for payment for services rendered, while dismissing Appellant’s 

counterclaim without consideration was against the manifest weight of 

the evidence and this decision was inconsistent with the evidence and 

testimony presented at trial. 

{¶5} Instead of presenting arguments regarding the denial of the motions to 

vacate or for a new trial, which are the only issues we have jurisdiction to consider, 

M&R argues that the trial court's first decision, on the merits of the parties' complaint 

and counterclaim, was against the manifest weight of the evidence. However, M&R 

did not timely appeal that judgment. 

{¶6} A timely motion for new trial tolls the time within which to file an appeal 

from the original judgment. App. R. 4(B)(2)(b). M & R filed a timely motion for a new 

trial 28 days after the original judgment, which tolled the appeal time until the trial 

court decided this post-judgment motion. Civ.R. 59(B). At the time the trial court filed 
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the second judgment entry—denying M & R's motion for a new trial—there remained 

two days to file an appeal from the original judgment on the merits. None was filed, 

thus the appeal time to challenge that judgment lapsed. App.R. 4(A)(1). 

{¶7} M&R's appeal of the trial court's judgment denying the motions to 

vacate and for a new trial was timely filed, but no argument has been presented 

regarding Civ.R.60(B) or the law governing whether the trial court must grant a new 

trial. Moreover, Civ.R. 60(B) may not be used as a substitute for a timely direct 

appeal as a means to circumvent App.R. 4(A) which establishes an appeal period of 

thirty days. 

{¶8} Accordingly, we are without jurisdiction to consider the merits of M&R's 

assignment of error. Further, M & R has failed to make any argument challenging the 

trial court's post-judgment ruling, which was timely appealed. Accordingly, the 

judgment of the trial court is affirmed. 

Donofrio, P. J., concurs. 

Robb, J., concurs.