Elmer Winters v. John Doe
| Decision Date | 10 September 1998 |
| Docket Number | 98-LW-4972,74384 |
| Parties | ELMER WINTERS, Plaintiff-appellant v. JOHN DOE, et al, Defendants-appellees CASE |
| Court | Ohio Court of Appeals |
Civil Appeal from Court of Common Pleas, Case No. CV-215743.
For plaintiff-appellant: PAUL MANCINI, JR., Attorney at Law, 75 Public Square, Suite 1016, Cleveland, Ohio 44113-2098.
For defendant-appellees: KATHLEEN A. MARTIN, Chief Assistant Director of Law, Room 106 City Hall, 601 Lakeside Avenue Cleveland, OH 44114.
This case is before the court on appeal from a February 20, 1998 order by the Court of Common Pleas of Cuyahoga County denying the motion for relief from judgment filed on February 4, 1998 by plaintiff-appellant Elmer Winters. This court lacks jurisdiction over this appeal. Accordingly, the appeal must be dismissed.
This case has a tortuous procedural history, much of which is irrelevant for purposes of this appeal. The history relevant to this appeal is as follows. Plaintiff-appellant filed this action in the Cuyahoga County Court of Common Pleas on August 7, 1991. Defendants-appellees filed a motion to dismiss or for summary judgment on March 2, 1994. Appellant did not respond to the motion, and on October 3, 1994, the common pleas court entered judgment in favor of appellees.
Appellant filed a motion for relief from judgment on October
21 1994. Several months later, on March 14, 1995, the common
pleas court entered an order nunc pro tunc as of and for October 21, 1994, which stated that appellees' "Motion to Dismiss or for Summary Judgment is Granted." Appellant filed a notice of appeal on April 12, 1995. This court dismissed the appeal sua sponte for lack of jurisdiction because appellant's notice of appeal was not timely filed. This court held:
The notice of appeal was filed April 12, 1995, timely from the March 12 entry, but untimely from the October 3, 1994 entry, from which the appeal for this case needed to be filed. See Gaeta v. City of Cleveland (1998), 39 Ohio St.3d 338, 339, 530 N.E.2d 1317 - "Civ.R. 60(b) may not be used as a substitute for a timely appeal or to accommodate a party by extending the normal period for appeal." Morton v. Morton (1984), 19 Ohio App.3d 212, 483 N.E.2d 1192; Kertes Enterprises, Inc. v. Planning Zoning Commission of Orange Village (1990), 68 Ohio App.3d 48, 587 N.E.2d 409.
More than two years later, on February 4, 1998, appellant filed a pro se motion for relief from judgment. This motion was denied by an order entered February 20, 1998. Appellant filed a notice of appeal through counsel on April 24, 1998. In his notice of appeal, appellant averred that the appeal was timely because notice of the entry of judgment was not mailed to counsel until March 30, 1998. The sole assignment of error in appellant's brief asserts:
PLAINTIFF WAS DENIED DUE PROCESS OF LAW WHEN THE COURT GRANTED A MOTION TO DISMISS OR FOR SUMMARY JUDGMENT WHICH MOTION HAD NOT BEEN SERVED UPON OPPOSING COUNSEL.
App.R 4(A) provides:
A party shall file the notice of appeal required by App.R. 3 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.
Civ.R. 58(B) requires notice of judgments to be provided as follows:
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).
Appellant asserts that the notice of appeal filed April 24, 1998 was timely because his counsel was not served with notice of the court's order denying the motion for relief from judgment until March 30, 1998. However, the docket of the common pleas court indicates that notice of the judgment was issued February 20, 1998.[1] There is no record of where this notice was sent, but it was presumably issued to appellant, himself. Since appellant filed his motion for relief from judgment pro se, the clerk could properly assume that appellant was no longer represented by counsel. Therefore, service of the judgment was properly made on appellant pursuant to Civ.R. 5(B) and not on the attorney who represented him in the litigation that ended more than two years earlier. See Card v. Ameritrust Corp. (Mar. 2, 1984), Cuyahoga App. No. 47082, unreported.
Although the docket notation is not conclusive evidence that
notice was sent, appellant has not presented evidence to contradict
the docket, and we therefore must accept it as true. Cf. Defini v.
Broadview Heights (1991), 76 Ohio App.3d 209, 213-14 ().
Furthermore, appellant's sole assignment of error relates to
the October 3, 1994 order of the common pleas court granting
appellees' ...
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