Cleveland v. Trzebuckowski

• Decision Date: 02 June 1999
• Docket Number: No. 96-2190,96-2190
• Citation: 85 Ohio St.3d 524,709 N.E.2d 1148
• Parties: CITY OF CLEVELAND, Appellee, v. TRZEBUCKOWSKI, Appellant.
• Court: Ohio Supreme Court

Page 524

85 Ohio St.3d 524

709 N.E.2d 1148

CITY OF CLEVELAND, Appellee, v. TRZEBUCKOWSKI, Appellant.

No. 96-2190.

Supreme Court of Ohio.

Submitted Jan. 12, 1999.

Decided June 2, 1999.

On March 12, 1995, a Cleveland police officer issued five complaints against defendant-appellant, Stanley Trzebuckowski, for allowing a juvenile in a billiard room, a violation of Cleveland Codified Ordinance 688.13. According to the printout of the docket that this court received from the Cuyahoga County Court of Appeals, these complaints were received and filed with the Cleveland Municipal Court Clerk's Office on March 14, 1995. On June 7, 1995, defendant filed a motion to dismiss the charges on the grounds that the ordinance was unconstitutional. On June 22, 1995, the court completed a judgment entry form, stating that it was granting defendant's motion to dismiss. This judgment entry form was stamped "Judgment Entry Received for Journalization Sep 12 1995."

On July 26, 1995, the municipal court submitted its finding of fact and conclusion of law, supporting its decision to grant the motion to dismiss on the grounds that the ordinance was unconstitutional (the date below the judge's signature, in a handwriting different from that of the judge's signature, is June 23, 1995). The finding of fact and conclusion of law also is stamped "Judgment Entry Received for Journalization Sep 12 1995."

On August 28, 1995, appellee, city of Cleveland, filed a notice of appeal in the Cuyahoga County Court of Appeals. On November 3, 1995, defendant filed a motion to dismiss the appeal, asserting that the city did not timely file its notice of appeal and therefore that the court of appeals had no subject-matter jurisdiction. The court of appeals' decision, released on August 15, 1996 and journalized on September 9, 1996, ¹ apparently denied, without so stating, defendant's motion to dismiss. The court of appeals held the ordinance constitutional on the merits of the city's arguments, thus apparently assuming its own jurisdiction. The court of appeals accordingly reversed the decision of the trial court and entered judgment for the city.

On September 9, 1996, the court of appeals directly addressed defendant's jurisdictional arguments in a journal entry denying his August 26, 1996 application for reconsideration. The court of appeals held that the date of journalization of the trial court's judgment entry started the "appeal clock" running, and thus the city's notice of appeal was prematurely, but timely, filed pursuant to App.R. 4(C).

This cause is now before this court upon the allowance of a discretionary appeal.

George A. Pace, Jr., Cleveland Chief Prosecutor, and Jay A. Cole, Assistant City Prosecutor, for appellee.

Kenneth A. Bossin and Robert J. Willis, Cleveland, for appellant.

ALICE ROBIE RESNICK, Justice.

Before we reach the merits of this case, we must address the issue of whether a judgment entry is a final appealable order when the clerk of court does not journalize the entry until after the thirty-day period has run as set forth in Sup.R. 7.

I

The Rules of Superintendence for the Courts of Ohio apply to "all courts of appeal, courts of common pleas, municipal courts, and county courts" in Ohio. Sup.R. 1(A). Sup.R. 7(A) states:

"The judgment entry specified in Civil Rule 58 and in Criminal Rule 32 shall be filed and journalized within thirty days of the verdict, decree, or decision. If the entry is not prepared and presented by counsel, it shall be prepared and filed by the court."

In the case sub judice, the municipal court's judgment entry, which granted defendant's motion to dismiss and purported to terminate the case at the trial level, was prepared on June 22, 1995. The entry was not journalized by the clerk until September 12, 1995, a full eighty-two days later. The city filed its notice of appeal on August 28, 1995, sixty-seven days after the entry was prepared, and fifteen days before the entry was journalized.

App.R. 4(A) requires that a party file the notice of appeal "within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure." (Emphasis added.) In State ex rel. Hughes v. Celeste (1993), 67 Ohio St.3d 429, 430, 619 N.E.2d 412, 414, we set forth the test for a final appealable order:

"Under R.C. 2505.02, an order is final and appealable if it satisfies each of these three criteria: (1) it affects a substantial right; (2) it in effect determines the action; and (3) it prevents a judgment. Bellaire City Schools Bd. of Edn. v. Paxton (1979), 59 Ohio St.2d 65, 13 O.O.3d 58, 391 N.E.2d 1021.

"A 'substantial right' is a legal right enforced and protected by law. Noble v. Colwell (1989), 44 Ohio St.3d 92, 94, 540 N.E.2d 1381, 1383. * * * " In the case sub judice, the trial court's order granting the motion to dismiss in a criminal case affects a legal right enforced and protected by law: it granted defendant his freedom from multiple criminal charges. And an entry granting a motion to dismiss also determines the action, thus fulfilling the second criterion.

Thus, this case presents the issue of whether the third criterion, that of preventing a judgment, was met. We begin our analysis by noting that a conclusion or statement of judgment must be journalized formally to become a final appealable order. Civ.R. 58(A) and Crim.R. 32(C); State ex rel. Hansen v. Reed (1992), 63 Ohio St.3d 597, 600, 589 N.E.2d 1324, 1327. See, also, State ex rel Hanley v. Roberts (1985), 17 Ohio St.3d 1, 17 OBR 1, 476 N.E.2d 1019; State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 686 N.E.2d 267.

In Hansen and White, cited above, this court held that because the entries determining the convictions and the sentences of the criminal defendants were not journalized, they were not final appealable orders, and thus the trial courts properly vacated their own orders and set the cases for trial. Likewise, in the case sub judice, until the trial court's entry determining the final verdict on a criminal complaint is officially journalized, the entry cannot prevent further judgment, since the trial court can always vacate its own judgment and set the case for trial. Thus, it is not a final appealable order.

However, in State ex rel. Grove v. Nadel (1998), 81 Ohio St.3d 325, 327, 691 N.E.2d 275, 277, we held that either party to an action may file a writ of mandamus or a writ of procedendo in an appellate court to compel the trial court to journalize its judgment if the court fails to do so within the thirty-day period mandated by Sup.R. 7. The judgment would then become a final appealable order on the date of journalization, no matter how delayed. In the case sub judice, the judgment likewise became final on September 12, 1995, the date of eventual journalization.

Because the city's notice of appeal was filed prior to the journalization of the court's judgment, the notice was premature. When a notice of appeal is filed after a judgment is announced, but before the judgment is entered, that notice is treated as filed immediately after the judgment is entered. App.R. 4(C). Thus, in the case sub judice, the city's notice of appeal is considered filed and effective on September 12, 1995, the date the court's judgment was filed and became final. Accordingly, the appellate court had jurisdiction to hear the case. App.R. 4(A).

From the record in the case sub judice, it is difficult to ascertain exactly who is at fault for the violation of Sup.R. 7. Because all documents entered in the trial court's file of the case were stamped with the same date for journalization and that date follows shortly after the date on which the city filed its notice of appeal, we can assume that everything was officially journalized on that late date in the case only after being triggered by the filing of a notice of appeal. This is a blatant violation of Sup.R. 7, extremely poor court practice, and inexcusable on the part of the trial court.

As we state above, the Appellate Rules and the procedures of mandamus and procedendo work to alleviate the detrimental results upon the parties of an untimely filed judgment, but it is incumbent upon the part of the judiciary to comply with the mandate of Sup.R. 7. Without official journalization within thirty days, nothing that the trial court did in the case was final and all orders could potentially be reversed at any time. See, e.g., White, 80 Ohio St.3d 335, 686 N.E.2d 267; Hansen, 63 Ohio St.3d 597, 589 N.E.2d 1324. Parties to the action cannot depend on the court's statements and are prohibited from appealing. The Cleveland Municipal Court must see to it that all entries of the court are journalized in an expeditious manner.

Accordingly, the judgment of the court of appeals on the jurisdictional issue is affirmed.

II

Having decided that the judgment of the trial court, despite the delay in journalization, is final and appealable, we now address the merits of this case, which raise the issue of whether the Cleveland codified ordinance prohibiting minors from remaining in "billiard rooms" violates the Constitution because it (1) is overbroad, and (2) violates defendant's right to equal protection.

A Overbreadth

Defendant first asserts that the ordinance is unconstitutionally overbroad and therefore violates the rights of minors to assemble freely as protected by the First Amendment to the United States Constitution.

Cleveland Codified Ordinance 688.13 states:

"No owner, operator, agent or keeper of a billiard room shall permit any person who has not reached the age specified in Section 688.12 [fourteen years of age] to remain in a billiard room for any purpose. However, a minor under the age specified in Section 688.12, when accompanied by either parent or his legal guardian, may be permitted to play both...