Amato v. Brady

2022 Ohio 1723

• Court: Ohio Court of Appeals
• Decided: May 23, 2022
• Docket: 2022-L-015
• Status: Published

Opinion

[Cite as Amato v. Brady, 2022-Ohio-1723.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

JAMES A. AMATO, CASE NO. 2022-L-015 TRUSTEE,

Plaintiff-Appellee, Civil Appeal from the Court of Common Pleas -v-

SPENCER BRADY, Trial Court No. 2021 JL 003335

Defendant-Appellant.

MEMORANDUM OPINION

Decided: May 23, 2022 Judgment: Appeal dismissed

David D. Briller, David D. Briller Co., L.P.A., 7379 Pearl Road, Suite 4, Middleburg Heights, OH 44130 (For Plaintiff-Appellee).

Spencer Brady, pro se, 802 East 305th Street, Willowick, OH 44095 (Defendant- Appellant).

THOMAS R. WRIGHT, P.J.

{¶1} On March 2, 2022, appellant, Spencer Brady, filed a pro se appeal from the

Lake County Court of Common Pleas July 20, 2021 entry. Appellee, James A. Amato

filed a motion to dismiss the appeal as untimely. Appellant filed no opposition to the

motion to dismiss.

{¶2} App.R. 3(A) expressly states that the only jurisdictional requirement for filing

a valid appeal is to file it within the time allowed by App.R. 4. The Supreme Court has

held that the failure to comply with the time requirements of App.R. 4(A) is a jurisdictional defect, which is fatal to an appeal. In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, ¶ 17,

citing State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60 (1988).

{¶3} “Subject to the provisions of App.R. 4(A)(3), a party who wishes to appeal

from an order that is final upon its entry shall file the notice of appeal required by App.R.

3 within 30 days of that entry.” See App.R. 4(A)(1). Civ.R. 58(B) directs the clerk of

courts to serve the parties with notice of the entry within three days of entering the

judgment upon the journal. If Civ.R. 58(B) service does not occur within three days, the

time to appeal does not begin to run until service is made and noted in the appearance

docket. Coles v. Lawyers Title Ins. Corp., 163 Ohio App.3d 659, 664, 2005-Ohio-5360.

{¶4} Here, the trial court issued its entry on July 20, 2021. The clerk of courts

noted on the appearance docket that notice of the entry under Civ.R. 58(B) was issued

to the parties on that same date. Therefore, pursuant Civ.R. 58(B), the time to appeal

began to run from July 20, 2021. The deadline for appellant to file his notice of appeal

was August 19, 2021, which was not a holiday or a weekend. Thus, appellant’s March 2,

2022 appeal was untimely filed by over six months.

{¶5} This court may not extend the time to appeal in civil cases. Pendell, supra

at 60; see also App.R. 14(B).

{¶6} Based upon the foregoing, appellee’s motion to dismiss is hereby granted.

This appeal is dismissed pursuant to App.R. 4(A)(1).

MATT LYNCH, J.,

JOHN J. EKLUND, J.,

concur.

Case No. 2022-L-015