St. Vincent Charity Hosp. v. Mintz

• Decision Date: 02 December 1987
• Docket Number: No. 86-1863,86-1863
• Citation: St. Vincent Charity Hosp. v. Mintz, 33 Ohio St.3d 121, 515 N.E.2d 917 (Ohio 1987)
• Parties: ST. VINCENT CHARITY HOSPITAL, Appellee, v. MINTZ, Appellant.
• Court: Ohio Supreme Court

Page 121

33 Ohio St.3d 121

515 N.E.2d 917

ST. VINCENT CHARITY HOSPITAL, Appellee, v. MINTZ, Appellant.

No. 86-1863.

Supreme Court of Ohio.

Dec. 2, 1987.

On April 16, 1984, appellee, St. Vincent Charity Hospital, filed a complaint in the Probate Court of Cuyahoga County seeking declaratory relief and damages concerning certain joint and survivorship and payable-on-death bank accounts of decedent Cyrus Mintz. Appellee seeks to have these accounts declared assets of the decedent's estate. On July 25, 1984, the case was heard by a probate court referee. On October 11, 1984, the referee issued his report, which found that two joint and survivorship accounts and a payable-on-death account were not assets of the estate.

On October 24, 1984, appellee filed objections to the referee's report. On December 20, 1984, the probate court conducted a hearing on the objections, and on March 1, 1985, filed a judgment entry, which overruled the objections concerning the joint and survivorship accounts, but sustained the objections concerning the payable-on-death account. This judgment entry concluded with the following one-sentence paragraph:

"A Judgment Entry for the Complaint for Declaratory Judgment shall be filed in accordance with this Judgment Entry."

On April 8, 1985, appellant filed a motion for relief from judgment and motion to correct a clerical mistake. By "Judgment Entry" of May 17, 1985, the court found the motion to be well-taken and vacated the March 1, 1985 judgment entry. Another hearing was held on July 29, 1985, and, on that date, the court filed yet another judgment entry in which it again set forth the opinion it rendered on March 1, 1985, and corrected the clerical mistake. The concluding paragraph of this entry states:

"A Judgment Entry for the Complaint for Declaratory Judgment shall be filed by attorney Howard P. Kasdan [attorney for appellee] within thirty days, in accordance with this Judgment Entry."

On September 10, 1985, another judgment entry was filed in the case. This document does not contain the earlier opinion language, but contains a much shorter statement of the court's finding, ending in the following order:

"It is, therefore, ordered that Defendant, Robert Mintz, to whom the payable-on-death account was paid, be hereby ordered to remit the sum of $15,369.69, together with interest at ten percent per annum from September 10, 1985, to the Administrator of the Estate of Cyrus Mintz."

On October 9, 1985, appellant filed a notice of appeal concerning the payable-on-death account, and on October 16, 1985, appellee also filed a notice of appeal concerning the joint and survivorship accounts. The court of appeals consolidated the appeals and, on September 29, 1986, dismissed them for lack of jurisdiction, asserting that the appeals were not timely filed.

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

Howard P. Kasdan, Cleveland, for appellee.

Black, McCuskey, Souers & Arbaugh, Jay C. Blackstone and Matthew L. Epling, Canton, for appellant.

PER CURIAM.

The court of appeals considered the judgment entry of July 29, 1985 the final judgment of the trial court and, therefore, found untimely the notices of appeal filed on October 9, 1985 and October 16, 1985, respectively. The court found the September 10, 1985 judgment entry "substantially the same" as the July 29, 1985 entry and applied McCue v. Buckeye Union Ins. Co. (1979), 61 Ohio App.2d 101, 15 O.O.3d 103, 399 N.E.2d 127. We reverse.

McCue involved the unexplained vacating of a judgment entry and the simultaneous filing of an identical entry. McCue holds that in such a case " * * * it will be presumed * * * that the action by the trial court was taken solely as an accommodation to the appellant to take an appeal where the time...