Americare Corp. v. Misenko, 83-1145

• Decision Date: 18 April 1984
• Docket Number: No. 83-1145,83-1145
• Parties: , 10 O.B.R. 454 AMERICARE CORP. et al., Appellants, v. MISENKO, Appellee.
• Court: Ohio Supreme Court

Page 132

10 Ohio St.3d 132

461 N.E.2d 1304, 10 O.B.R. 454

AMERICARE CORP. et al., Appellants, v. MISENKO, Appellee.

No. 83-1145.

Supreme Court of Ohio.

April 18, 1984.

Fry & Waller Co., L.P.A., Carl B. Fry, Barry A. Waller and Rick L. Brunner, Columbus, for appellants.

Jack N. Alpern Co., L.P.A., Jack N. Alpern, Warren, and Anthony M. Cornicelli, Niles, for appellee.

PER CURIAM.

The primary issue presented, which is procedural in nature, is whether the dismissal of the notice of appeal on the grounds that it was not timely filed was proper. For the reasons that follow, this court holds that the court of appeals correctly dismissed the notice of appeal as being untimely.

The resolution of this controversy necessarily involves the interpretation and application of Local Rule 18 of the Court of Common Pleas of Trumbull County that provides as follows:

"18.01(A) Counsel for the party in whose favor * * * judgment * * * is entered in a cause in Civil or Domestic Relations Divisions shall * * * prepare a proper judgment entry and submit the same to counsel for the opposite party who shall approve or reject the same * * * and may, in case of rejection, file objections thereto in writing with the court.

"(B) The Court shall approve a judgment entry deemed by it to be proper, sign the same and cause it to be filed with the Clerk, and notice of the filing of each judgment entry for journalization shall, on the day following such filing, be given to all parties by the party presenting such judgment entry to the court for approval, and the time for the doing of any other act resulting, caused or required by the filing of such judgment entry shall not commence until such notice has been given."

Appellants contend that this rule mandates that actual notice of a judgment entry be given to the losing party. Appellants then argue that because they never received such actual notice, they were denied the opportunity to timely appeal and the dismissal of the notice of appeal was hence unconstitutional as being violative of due process and equal protection. Thus, while appellants concede that the notice of appeal was not timely filed, they assert that the untimeliness was a direct result of the failure to follow local court rule notice requirements and, as such, their filing should be deemed timely.

This court has carefully reviewed Local Rule 18 in light of its purpose and spirit and cannot concur in appellants' analysis of the rule. Such a narrow construction is neither consistent with the purpose and spirit of the local rule itself, nor with the Rules of Civil Procedure. (See Civ.R. 83 which defines "rule of court" as one concerning local practice not inconsistent with rules promulgated by the Supreme Court.)

An examination of Local Rule 18 in light of its purpose reveals that the trial court did not violate this established local rule providing for the preparation and notification of journalizing the judgment entry by failing to provide appellants with actual notice of the entering of the judgment.

The obvious purpose of this rule is to avoid mistakes in reciting the court's decision. Accordingly, when a judgment entry is prepared by counsel, Local Rule 18 requires that the judgment entry be submitted to the opposite party for approval or rejection in order to ensure that the judgment adequately reflects the court's ruling. When the judgment entry is prepared by the trial court itself as was the case herein, however, prior submission of the entry to the parties is not absolutely necessary, for under such circumstances there is no doubt but that the entry reflects the decision of the court.

Correspondingly, there is no language in Local Rule 18 that suggests that the only manner in which a judgment entry may be prepared is for the victorious party to draft the entry and submit it to the court, as appellants' construction, by necessary implication, would so mandate. Indeed, if it did so suggest, the rule would be subject to serious question, for it would impinge on the power and discretion of a trial court to prepare and enter its own judgments. This court is indeed reluctant to adopt a construction of a local rule that would so severely hinder a trial court's power to enter its judgment and hence control its own docket. It would also improperly conflict with Civ.R. 58, ¹ which does not restrict the manner by which a court may have a judgment prepared.

Furthermore, it is most noteworthy that no provision in Ohio law or rule of civil or appellate procedure requires that a party be given actual notice of the filing of a judgment entry. The procedure for appeal is clearly set forth in the Rules of Appellate Procedure. App.R. 3(A) requires that an appealing party must file a notice of appeal. The time period for the filing of the notice of appeal is set forth in App.R. 4:

"(A) In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days of the date of the entry of the judgment or order appealed from. * * * "

App.R. 4(A) also provides that " * * * [a] judgment or order is entered within the meaning of this subdivision when it is filed with the clerk of the trial court for journalization." App.R. 4(A) complements Civ.R. 58, which provides in part that "[a] judgment is effective only when filed with the clerk for journalization." As evidenced by these rules, there are no provisions in the Rules of Appellate Procedure that actual notice of a judgment entry be given. See, also, Steadley v. Montanya (1981), 67 Ohio St.2d 297, 423 N.E.2d 851 .

Appellants, by urging this court to find their notice of appeal timely, have in essence requested this court to toll the time period for the filing of a notice of appeal. Throughout this appeal, this court has remained mindful that the Rules of Appellate...