Defini v. Broadview Hts.

• Decision Date: 12 November 1991
• Docket Number: No. 59073,59073
• Citation: 76 Ohio App.3d 209,601 N.E.2d 199
• Parties: DEFINI, Exr., Appellant and Cross-Appellee, v. CITY OF BROADVIEW HEIGHTS, Appellee and Cross-Appellant.
• Court: Ohio Court of Appeals

Page 209

76 Ohio App.3d 209

601 N.E.2d 199

DEFINI, Exr., Appellant and Cross-Appellee, v. CITY OF BROADVIEW HEIGHTS, Appellee and Cross-Appellant.

No. 59073.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Nov. 12, 1991.

Thompson, Hine & Flory, Thomas A. Heffernan and Theodore E. Laszlo, Cleveland, for appellant.

Arter & Hadden, Wayne J. Belock and Chris L. Hurlbut, Cleveland, for appellee.

HARPER, Judge.

I

Appellant, Vincent J. DeFini, the Executor of the Estates of Frank and Josephine Bonaiuto, appeals from the judgment of the Cuyahoga County Court of Common Pleas which granted appellee, city of Broadview Heights' motion for summary judgment. Appellant filed a negligence action against Greg Kobasic ("Kobasic") on April 6, 1987 and later amended his complaint to include the city as a party. Appellant alleged that the city breached its statutory duty to keep the streets open, in good repair and free from nuisance.

The city filed a motion for summary judgment on June 26, 1989, which was granted by the trial court. Appellant filed a motion for relief from judgment on October 19, 1989, alleging that the clerk of courts did not send him a notice of the trial court's summary disposition of his case against the city as required by Civ.R. 58(B). Appellant, in his motion, argued that the clerk's failure to notify him of the judgment deprived him of his right to file a timely appeal.

On December 6, 1989, the trial court granted appellant's motion to vacate and reinstate its judgment to permit appellant to file a timely appeal. Appellant subsequently filed his appeal and for the reasons that follow, we affirm.

II

The Novaks, who are residents of Broadview Heights, erected a Christmas display on their East Royalton Road (Route 82) property in December 1987. The Novaks have put on the Christmas display for a number of years prior to the 1987 display. The display was visible from the road. The record shows that people travelling on Route 82 often slow down to admire the display as they continue to drive to their destination. Many others travelling would park across the road from the display and either view it from there or walk across Route 82 to view the display from the Novaks' driveway.

On December 27, 1987, at approximately 10:20 p.m., Kobasic, while driving eastbound on Route 82, struck and killed Mr. and Mrs. Bonaiuto as they crossed the street to view the display. The record shows that Kobasic was familiar with Route 82 and frequently used it to get to and from his job at Stancato's Restaurant from his home in North Royalton.

Kobasic, in his deposition testimony, stated that the weather on the night in question was dry and visibility was good. Kobasic was familiar with the Christmas display and was aware that people stopped by and often crossed Route 82 to view the display. Kobasic stated that he noticed a car pulled off to the right side of the road with its lights blinking on the night of the accident. He slowed down and focused on the road and was not distracted by the Christmas display. His headlights were on, and his vision was not blocked. Kobasic saw the Bonaiutos for a split second before they were struck. He stated that the accident occurred so suddenly that he did not have the opportunity to swerve or apply his brakes. Kobasic's car was mechanically fit for travel on the road on the evening in question. Kobasic stated that the street was not lighted and was dark.

III

The city of Broadview Heights cross-appealed, challenging the trial court's grant of appellant's motion to vacate and reinstate its judgment. Since the city's cross-appeal touches on the issue of this court's jurisdiction to hear this appeal, we shall first address its cross-appeal. The city, in its cross-appeal, states that "The Trial Court Erred in Vacating Its August 29, 1989 Journal Entry Where the Trial Court's Docket Indicates That Plaintiff-Appellant Received Proper Notice of The Entry."

The record shows that the court of common pleas granted appellee's motion for summary judgment on August 28, 1989. The court's judgment entry was journalized on August 29, 1989. The clerk of courts never entered the judgment into the court's computer journal until November 24, 1989.

The clerk of court's office sent out a post card notice to appellant after it entered the judgment in the court's computers. The record shows that appellant did not receive the post card until November 28, 1989. Appellant filed a motion pursuant to Civ.R. 60(B), which was granted.

Appellee argues that the trial court erred by granting appellant's motion to vacate and reinstate a prior judgment after appellant was given proper notice of the judgment in accordance with Civ.R. 58. We disagree. Civ.R. 58(B) states in pertinent part:

"Notice of filing. When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete. The failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided in App.R. 4(A)."

In Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80, 523 N.E.2d 851, at paragraph one of the syllabus, the Ohio Supreme Court held that:

"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."

The court continued at 81, 523 N.E.2d at 853:

"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.' "

The Atkinson court went further and promulgated the procedures that should be followed in order to comply with Civ.R. 58(B) when it held at 86, 523 N.E.2d at 856-857 that:

"For our purposes, we believe that the following rules will meet the due process requirements contemplated by Mullane v. Central Hanover Bank &amp Trust Co. (1950), 339 U.S. 306 [70 S.Ct. 652, 94 L.Ed. 865]. These rules are to be applied in all courts of this state in the exercise of civil jurisdiction at law, or in equity, except as stated in Civ.R. 1(C). The rules are:

"A. 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."

Therefore, the procedures as enunciated by the Atkinson court must be mandatorily complied with in order to satisfy the due-process requirements of what constitutes proper notice of a final appealable order. Appellee argues that appellant had notice pursuant to the Atkinson provisions because the court's execution docket is stamped "NOTICE ISSUED." This narrow reading of the Atkinson holding conveniently ignores the central element of the decision which is that there must be a service. "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." (Emphasis added.) Id. The controlling element in the decision is not the notation in the case docket. The case docket notation is evidence of service, though not conclusive evidence, since the appellant can aver that service was not made. The purpose of the requirement in Atkinson is to make a record for allegations of failure to serve. See, e.g., Kertes Ent., Inc. v. Orange Village Planning Zoning Comm. (1990), 71 Ohio App.3d 151, 152-153, 593 N.E.2d 306, 306-307 (absence of notation is evidence that service was not made). Where a notice is not first served on the parties, a thousand notations on the case docket is insufficient to satisfy the Atkinson requirement. Therefore, we hold as a matter of law that the requirements of Civ.R. 58(B) and the procedures in Atkinson are met only when the clerk of courts (1) serves a notice of the entry of a final appealable judgment or order within three days of the entry pursuant to Civ.R. 5 upon every party who is not in default for failure to appear, and (2) the clerk makes a notation in the case docket that such service has been made. The validity of the judgment or the running of the time for appeal is effective when the clerk satisfies the above requirements. Any party's failure to receive such notice after it is served shall not be used to challenge the validity of the judgment or as a defense for failure to file a timely appeal.

In the within case, appellee presented an affidavit sworn by Linda Graves, who is an employee of the court of common pleas in the Central Scheduling Department. She stated that she had recently left the department of the clerk's office from where mail notices are sent to parties. She further stated that:

"I escorted Mr. Heffernan [counsel for appellant] to the first floor Clerk's Office to determine whether or not a post card notice had been issued on that ruling.

" * * *

"4. After having checked the computer entries, the microfiche records pertaining to post card mailing notices, and the civil post card proof sheet, an official record of the...