Atkinson v. Grumman Ohio Corp.

• Decision Date: 01 June 1988
• Docket Number: No. 87-1023,87-1023
• Parties: ATKINSON et al., Appellants, v. GRUMMAN OHIO CORPORATION et al., Appellees.
• Court: Ohio Supreme Court

Page 80

37 Ohio St.3d 80

523 N.E.2d 851

ATKINSON et al., Appellants, v. GRUMMAN OHIO CORPORATION et al., Appellees.

No. 87-1023.

Supreme Court of Ohio.

Submitted March 16, 1988.

Decided June 1, 1988.

Syllabus by the Court

1. The right to file an appeal, as it is defined in the Appellate Rules, is a property interest and a litigant may not be deprived of that interest without due process of law.

2a. Within three days of the entry of any final appealable judgment or order, the clerk of courts shall serve a notice of the entry in any manner provided in Civ.R. 5, upon every party who is not in default for failure to appear.

b. The clerk shall make a notation in the case docket indicating that the required service has been made.

c. Once the clerk has served notice of the entry and entered the appropriate notation in the docket, the notice shall be deemed to have been served. The failure of any party to receive such notice shall not affect the validity of the judgment or the running of the time for appeal.

Appellants, Arthur J. Atkinson et al., filed this action in the Court of Common Pleas of Ashland County against appellees, Grumman Ohio Corporation, f.k.a. Grumman Flxible Corporation, General Automotive Corporation, and others. Appellants are former employees of appellees. The complaint, filed August 1, 1985, as amended, alleged wrongful termination of employment and age discrimination.

Appellees filed a motion for summary judgment on September 4, 1985. Following a stay of the proceedings, appellees renewed their motion for summary judgment on August 1, 1986. The motion was sustained in an oral opinion, announced in open court, on October 6, 1986.

Appellees' counsel drafted a proposed judgment entry and submitted it, on or about October 20, 1986, to appellants' counsel for approval. Appellants refused to sign the entry and, on October 30, 1986, filed a notice of objection to the appellees' proposed entry with the Ashland County Clerk of Courts. Attached to the notice of objection was appellants' proposed judgment entry. After appellants refused to sign appellees' entry, appellees, on or about October 28, 1986, forwarded the unapproved entry to the trial judge for his signature.

During the first week of November 1986, appellants' counsel was personally informed by the trial court's bailiff that the court had not yet decided which proposed judgment entry to approve.

On November 12, 1986, the court signed and filed the judgment entry proposed by appellees. Notice of the judgment entry was not given either to counsel for appellants or to appellees until mailed on January 7, 1987. This notice was sent after appellants' counsel again inquired of the court about the judgment entry. While making inquiry, counsel learned that appellees' proposed entry had been signed and filed on November 12, 1986, and that no notice of the filing had been given to the parties at that time.

Notice of the filing of the judgment entry was received by appellants' counsel on January 9, 1987, more than thirty days after the judgment entry was signed and filed. Appellants filed a notice of appeal on January 22, 1987. Appellees filed a motion to dismiss the appeal for lack of jurisdiction on the basis that the appeal was not timely filed pursuant to App.R. 4(A). The court of appeals sustained appellees' motion to dismiss.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Spangenberg, Shibley, Traci & Lancione, Timothy A. Shimko and Janet I. Stich, Cleveland, for appellants.

Porter, Wright, Morris & Arthur, Charles C. Warner and Bradd N. Siegel, Columbus, for appellees.

DOUGLAS, Justice.

The issue before this court is whether reasonable notice of a final order is required to be given to parties by the deciding court to protect the parties' right to appeal. We find that such notice must be given and reverse the judgment of the court of appeals.

This case presents an issue that has been previously decided by this court. We stated in Moldovan v. Cuyahoga Cty. Welfare Dept. (1986), 25 Ohio St.3d 293, 295, 25 OBR 343, 345, 496 N.E.2d 466, 467, that "[t]he opportunity to file a timely appeal pursuant to App.R. 4(A) is rendered meaningless when reasonable notice of an appealable order is not given." After recognizing the thrust of Fed.R.Civ.P. 77(d), ¹ which requires the mailing of a notice of the entry to the parties, this court held "that failure to give reasonable notice of final appealable orders is a denial of the right to legal redress of injuries created by Section 16, Article I of the Ohio Constitution in all pending and future cases." ² Moldovan, supra, at 296, 25 OBR at 345-346, 496 N.E.2d at 468.

With Moldovan clearly requiring reasonable notice of a final order to be given to the parties, appellees attempt to distinguish the case at bar to avoid Moldovan's holding. Appellees fail in this attempt.

Appellees' first argument is that appellants did not raise the issue of a denial of a constitutional right at the trial level or on appeal and, therefore, this court is precluded from deciding the issue. Appellees' contention is faulty on three counts. First, the issue could not possibly have been raised before the trial court because the issue arose only after the decision of the court had been made. The issue concerns the procedure for notifying the parties of a judgment entry after the trial court decision, and not any matter heard in the trial court.

Second, appellants did raise in the court of appeals the issue of the lack of notice of the judgment entry. After appellants filed their notice of appeal, appellees responded by filing a motion to dismiss for lack of jurisdiction on the basis that the notice of appeal was not timely filed pursuant to App.R. 4(A). In appellants' brief in opposition to the motion to dismiss, appellants argued that the notice of appeal was not filed until January 22, 1987, because they did not know, until January 9, 1987, that a judgment entry had been filed. Appellants' unrefuted affidavits to this effect clearly raise the issue of the right to reasonable notice of a final order, the very issue decided by Moldovan, supra.

Third, appellees attempt to avoid the application of Moldovan by relying on State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277. Appellees contend that the holding of Awan, supra, is that this court will not review constitutional arguments which were not raised at the trial level or in the court of appeals. This contention ignores the exact language of Awan. In determining whether a constitutional issue not previously raised by the parties is to be decided by this court, the Awan syllabus does not use preclusive language such as "will not" or "may not"; instead, it uses the discretionary language that the court "need not" hear the argument for the first time on appeal. The holding, while rejecting the claim that constitutionality is never waived, does not state that a constitutional issue first raised on appeal may never be considered. Id. at 124, 22 OBR at 203, 489 N.E.2d at 280 (Celebrezze, C.J., concurring).

Appellees further attempt to distinguish the case at bar from Moldovan by urging that, unlike the situation in Moldovan, appellants knew of the decision of the trial judge because it was announced in open court. The only thing lacking here, appellees maintain, was the signed judgment entry. Therefore, appellees argue, appellants had notice of the judgment from the date the granting of summary judgment was announced. This reasoning, however, ignores the language of Civ.R. 58, which states that " * * * [a] judgment is effective only when filed with the clerk for journalization. * * * " This court has held that "[a] court of record speaks only through its journal and not by oral pronouncement * * *." Schenley v. Krauth (1953), 160 Ohio St. 109, 51 O.O. 30, 113 N.E.2d 625, paragraph one of the syllabus. It is not inconceivable that the judge in this or any other case might change his mind between the time of announcing a decision and the filing of a judgment entry. This underscores the purpose of Civ.R. 58 and case law sustaining the rule. "A judgment is final, effective and imbued with a permanent character when filed with the clerk pursuant to Civ.R. 58." Cale Products, Inc. v. Orrville (1982), 8 Ohio App.3d 375, 8 OBR 489, 457 N.E.2d 854, paragraph two of the syllabus.

Appellees also claim that appellants failed to exercise due diligence and, therefore, should not receive the protection of the Moldovan holding. Appellees argue that appellants should either have filed a notice of appeal immediately or have been more diligent in checking the case status with the trial judge. To follow appellees' argument, an appellant, to be diligent, would have to file a notice of appeal immediately after a trial court announces its decision. Without an entry, however, there would be no way to fully or accurately comply with App.R. 3(C), which states that the notice of appeal "shall designate the judgment * * * appealed from * * *." ³ The other way for appellants to demonstrate diligence would be to call the trial court each day to see if and when the judge signed the entry. This is not only impractical and unnecessarily burdensome, but it should also be apparent that such a course of action might also be against an appellant's best interests.

Perhaps most damaging to appellees' argument that appellants were not diligent is the fact that appellees themselves exercised less than due diligence in this case. Local Rule 12.01 of the Court of Common Pleas of Ashland County states that "[c]ounsel for the party in whose favor * * * [a] judgment is rendered, shall within five (5) days thereafter prepare a judgment entry, and submit it to Counsel for the adverse party * * *." ⁴ While the trial judge announced his decision on October 6, 1986, appellees did not send appellants a proposed judgment entry for approval until on...