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In re Estate of Olivito5/31/2002
icia of trial substantially predominate in the proceeding." First Bank of Marietta at paragraph two of the syllabus. In order to determine whether a particular hearing contains the indicia of trial, courts must consider the nature of the individual proceeding. Id. at 507, 684 N.E.2d at 41.
"A list of relevant indicia may include (1) whether the proceeding was initiated by pleadings, (2) whether it took place in court, (3) whether it was held in the presence of a judge or magistrate, (4) whether the parties or their counsel were present, (5) whether evidence was introduced, (6) whether arguments were presented in court by counsel, (7) whether issues of fact were decided by the judge or magistrate, (8) whether the issues decided were central or ancillary to the primary dispute between the parties, (9) whether a judgment was rendered on the evidence. The list of factors is not intended to be exhaustive. Other indicia may be considered. The focus of the inquiry, however, is whether there is a substantial predominance of indicia of trial such that the proceeding is properly characterized as a trial for Civ.R. 59 purposes." Id.
. In this case, the motion was filed ten days after the trial court entered judgment. Thus, the motion was timely. Likewise, the hearing the trial court held in this case contained substantial indicia of trial. The proceedings were initiated by pleadings, took place in a courtroom before a judge, the parties were represented by counsel, arguments were presented by counsel, the issue decided was central to the case before the court, and the trial court entered judgment. Therefore, it appears the hearing was a trial for the purposes of Civ.R. 59.
. Flora's estate timely filed a proper Civ.R. 59 motion for a new trial. Hence, the time for filing a notice of appeal would begin to run only after the trial court disposes of that motion for a new trial. Because it has not done so, we do not have jurisdiction to hear this appeal. See Gillespie v. Iler (May 6, 1996), 3rd Dist. No. 15-95-8. Only after the trial court has disposed of the motion for a new trial will this court have jurisdiction over any possible subsequent appeal. Accordingly, we dismiss this appeal and remand the matter to the trial court so it may dispose of the motion for a new trial currently pending before it.
Vukovich, P.J., concurs. Waite, J., concurs.
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