Douglas, J.
The issue before this court is whether reasonable notice of a final order is required to be given to parties by the deciding court to protect the parties’ right to appeal. We find that such notice must be given and reverse the judgment of the court of appeals.
This case presents an issue that has been previously decided by this court. 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.” After recognizing the thrust of Fed. R. Civ. P. 77(d),1 which requires the mailing of a notice of the entry to the parties, this court held “that failure to give reasonable notice of final appeal-able orders is a denial of the right to [82]*82legal redress of injuries created by Section 16, Article I of the Ohio Constitution in all pending and future cases.”2 Moldovan, supra, at 296, 25 OBR at 345-346, 496 N.E. 2d at 468.
With Moldovan clearly requiring reasonable notice of a final order to be given to the parties, appellees attempt to distinguish the case at bar to avoid Moldovan’s holding. Appellees fail in this attempt.
Appellees’ first argument is that appellants did not raise the issue of a denial of a constitutional right at the trial level or on appeal and, therefore, this court is precluded from deciding the issue. Appellees’ contention is faulty on three counts. First, the issue could not possibly have been raised before the trial court because the issue arose only after the decision of the court had been made. The issue concerns the procedure for notifying the parties of a judgment entry after the trial court decision, and not any matter heard in the trial court.
Second, appellants did raise in the court of appeals the issue of the lack of notice of the judgment entry. After appellants filed their notice of appeal, appellees responded by filing a motion to dismiss for lack of jurisdiction on the basis that the notice of appeal was not timely filed pursuant to App. R. 4(A). In appellants’ brief in opposition to the motion to dismiss, appellants argued that the notice of appeal was not filed until January 22, 1987, because they did not know, until January 9, 1987, that a judgment entry had been filed. Appellants’ unrefuted affidavits to this effect clearly raise the issue of the right to reasonable notice of a final order, the very issue decided by Moldovan, supra.
Third, appellees attempt to avoid the application of Moldovan by relying on State v. Awan (1986), 22 Ohio St. 3d 120, 22 OBR 199, 489 N.E. 2d 277. Appellees contend that the holding of Awan, supra, is that this court will not review constitutional arguments which were not raised at the trial level or in the court of appeals. This contention ignores the exact language of Awan. In determining whether a constitutional issue not previously raised by the parties is to be decided by this court, the Awan syllabus does not use preclusive language such as “will not” or “may not”; instead, it uses the discretionary language that the court “need not” hear the argument for the first time on appeal. The holding, while rejecting the claim that.constitutionality is never waived, does not state that a constitutional issue first raised on appeal may never be considered. Id. at 124, 22 OBR at 203, 489 N.E. 2d at 280 (Celebrezze, C.J., concurring).
Appellees further attempt to distinguish the case at bar from Moldovan by urging that, unlike the situation in Moldovan, appellants knew of the decision of the trial judge because it was announced in open court. The only thing lacking here, appellees maintain, was the signed judgment entry. Therefore, appellees argue, appellants had notice of the judgment from the date the granting of summary judgment was announced. This reasoning, however, ignores the language of Civ. R. 58, which states that “* * * [a] judgment is effective only when filed with the clerk for journalization. * * *” This [83]*83court has held that “[a] court of record speaks only through its journal and not by oral pronouncement * * Schenley v. Krauth (1953), 160 Ohio St. 109, 51 O.O. 30, 113 N.E. 2d 625, paragraph one of the syllabus. It is not inconceivable that the judge in this or any other case might change his mind between the time of announcing a decision and the filing of a judgment entry. This underscores the purpose of Civ. R. 58 and case law sustaining the rule. “A judgment is final, effective and imbued with a permanent character when filed with the clerk pursuant to Civ. R. 58.” Cale Products, Inc. v. Orrville (1982), 8 Ohio App. 3d 375, 8 OBR 489, 457 N.E. 2d 854, paragraph two of the syllabus.
Appellees also claim that appellants failed to exercise due diligence and, therefore, should not receive the protection of the Moldovan holding. Appellees argue that appellants should either have filed a notice of appeal immediately or have been more diligent in checking the case status with the trial judge. To follow appellees’ argument, an appellant, to be diligent, would have to file a notice of appeal immediately after a trial court announces its decision. Without an entry, however, there would be no way to fully or accurately comply -with App. R. 3(C), which states that the notice of appeal “shall designate the judgment * * * appealed from * * *.”3 The other way for appellants to demonstrate diligence would be to call the trial court each day to see if and when the judge signed the entry. This is not only impractical and unnecessarily burdensome, but it should also be apparent that such a course of action might also be against an appellant’s best interests.
Perhaps most damaging to appellees’ argument that appellants were not diligent is the fact that appellees themselves exercised less than due diligence in this case. Local Rule 12.01 of the Court of Common Pleas of Ashland County states that “[c]ounsel for the party in whose favor * * * [a] judgment is rendered, shall within five (5) days thereafter prepare a judgment entry, and submit it to Counsel for the adverse party * * *.”4 While the trial judge announced his decision on Octo[84]*84her 6, 1986, appellees did not send appellants a proposed judgment entry for approval until on or about October 20, 1986, well outside the five-day limit set by the rule.
In addition, Loe. R. 12.025 of the Court of Common Pleas of Ashland County requires that within fifteen days of the judge’s decision, the judgment entry must be presented to the court for filing. If the entry is not presented within such time span, counsel, upon notification from the court, shall appear before the court and state on the record the reasons for the delay. The record again indicates that this rule was not followed. Not only did appellees fail to present the court with an entry within fifteen days, but the court also failed to notify the parties and to demand the reasons for the delay. In light of these failures, it is difficult to understand appellees’ claims of appellants’ lack of diligence.
Appellees have failed to distinguish the case at bar from Moldovan.
Free access — add to your briefcase to read the full text and ask questions with AI
Douglas, J.
The issue before this court is whether reasonable notice of a final order is required to be given to parties by the deciding court to protect the parties’ right to appeal. We find that such notice must be given and reverse the judgment of the court of appeals.
This case presents an issue that has been previously decided by this court. 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.” After recognizing the thrust of Fed. R. Civ. P. 77(d),1 which requires the mailing of a notice of the entry to the parties, this court held “that failure to give reasonable notice of final appeal-able orders is a denial of the right to [82]*82legal redress of injuries created by Section 16, Article I of the Ohio Constitution in all pending and future cases.”2 Moldovan, supra, at 296, 25 OBR at 345-346, 496 N.E. 2d at 468.
With Moldovan clearly requiring reasonable notice of a final order to be given to the parties, appellees attempt to distinguish the case at bar to avoid Moldovan’s holding. Appellees fail in this attempt.
Appellees’ first argument is that appellants did not raise the issue of a denial of a constitutional right at the trial level or on appeal and, therefore, this court is precluded from deciding the issue. Appellees’ contention is faulty on three counts. First, the issue could not possibly have been raised before the trial court because the issue arose only after the decision of the court had been made. The issue concerns the procedure for notifying the parties of a judgment entry after the trial court decision, and not any matter heard in the trial court.
Second, appellants did raise in the court of appeals the issue of the lack of notice of the judgment entry. After appellants filed their notice of appeal, appellees responded by filing a motion to dismiss for lack of jurisdiction on the basis that the notice of appeal was not timely filed pursuant to App. R. 4(A). In appellants’ brief in opposition to the motion to dismiss, appellants argued that the notice of appeal was not filed until January 22, 1987, because they did not know, until January 9, 1987, that a judgment entry had been filed. Appellants’ unrefuted affidavits to this effect clearly raise the issue of the right to reasonable notice of a final order, the very issue decided by Moldovan, supra.
Third, appellees attempt to avoid the application of Moldovan by relying on State v. Awan (1986), 22 Ohio St. 3d 120, 22 OBR 199, 489 N.E. 2d 277. Appellees contend that the holding of Awan, supra, is that this court will not review constitutional arguments which were not raised at the trial level or in the court of appeals. This contention ignores the exact language of Awan. In determining whether a constitutional issue not previously raised by the parties is to be decided by this court, the Awan syllabus does not use preclusive language such as “will not” or “may not”; instead, it uses the discretionary language that the court “need not” hear the argument for the first time on appeal. The holding, while rejecting the claim that.constitutionality is never waived, does not state that a constitutional issue first raised on appeal may never be considered. Id. at 124, 22 OBR at 203, 489 N.E. 2d at 280 (Celebrezze, C.J., concurring).
Appellees further attempt to distinguish the case at bar from Moldovan by urging that, unlike the situation in Moldovan, appellants knew of the decision of the trial judge because it was announced in open court. The only thing lacking here, appellees maintain, was the signed judgment entry. Therefore, appellees argue, appellants had notice of the judgment from the date the granting of summary judgment was announced. This reasoning, however, ignores the language of Civ. R. 58, which states that “* * * [a] judgment is effective only when filed with the clerk for journalization. * * *” This [83]*83court has held that “[a] court of record speaks only through its journal and not by oral pronouncement * * Schenley v. Krauth (1953), 160 Ohio St. 109, 51 O.O. 30, 113 N.E. 2d 625, paragraph one of the syllabus. It is not inconceivable that the judge in this or any other case might change his mind between the time of announcing a decision and the filing of a judgment entry. This underscores the purpose of Civ. R. 58 and case law sustaining the rule. “A judgment is final, effective and imbued with a permanent character when filed with the clerk pursuant to Civ. R. 58.” Cale Products, Inc. v. Orrville (1982), 8 Ohio App. 3d 375, 8 OBR 489, 457 N.E. 2d 854, paragraph two of the syllabus.
Appellees also claim that appellants failed to exercise due diligence and, therefore, should not receive the protection of the Moldovan holding. Appellees argue that appellants should either have filed a notice of appeal immediately or have been more diligent in checking the case status with the trial judge. To follow appellees’ argument, an appellant, to be diligent, would have to file a notice of appeal immediately after a trial court announces its decision. Without an entry, however, there would be no way to fully or accurately comply -with App. R. 3(C), which states that the notice of appeal “shall designate the judgment * * * appealed from * * *.”3 The other way for appellants to demonstrate diligence would be to call the trial court each day to see if and when the judge signed the entry. This is not only impractical and unnecessarily burdensome, but it should also be apparent that such a course of action might also be against an appellant’s best interests.
Perhaps most damaging to appellees’ argument that appellants were not diligent is the fact that appellees themselves exercised less than due diligence in this case. Local Rule 12.01 of the Court of Common Pleas of Ashland County states that “[c]ounsel for the party in whose favor * * * [a] judgment is rendered, shall within five (5) days thereafter prepare a judgment entry, and submit it to Counsel for the adverse party * * *.”4 While the trial judge announced his decision on Octo[84]*84her 6, 1986, appellees did not send appellants a proposed judgment entry for approval until on or about October 20, 1986, well outside the five-day limit set by the rule.
In addition, Loe. R. 12.025 of the Court of Common Pleas of Ashland County requires that within fifteen days of the judge’s decision, the judgment entry must be presented to the court for filing. If the entry is not presented within such time span, counsel, upon notification from the court, shall appear before the court and state on the record the reasons for the delay. The record again indicates that this rule was not followed. Not only did appellees fail to present the court with an entry within fifteen days, but the court also failed to notify the parties and to demand the reasons for the delay. In light of these failures, it is difficult to understand appellees’ claims of appellants’ lack of diligence.
Appellees have failed to distinguish the case at bar from Moldovan. Accordingly, it might suffice for this court to again simply repeat Moldovan’s holding. This approach, however, would not and has not solved the problem for this state’s attorneys and courts. Therefore, it is now incumbent upon us to address the key issue underlying our decision in Moldovan and give the trial courts of Ohio some guidelines to make certain the reasonable notice requirements of Moldovan are met.
The hypothesis underlying any requirement of reasonable notice is that the right to appeal is a property interest that cannot be denied without due process of law. While the United States Supreme Court has long held that a “right” to appeal is not found in the Constitution, McKane v. Durston (1894), 153 U.S. 684, the court has also held that where a state provides a process of appellate review, the procedures used must comply with constitutional dictates of due process and equal protection. Griffin v. Illinois (1956), 351 U.S. 12, 18.
The Ohio Constitution does not specifically provide for a “right” to appeal. Section 3(B)(1)(f), Article IV of the Constitution provides, however, for the establishment of an appellate court system with jurisdiction “[i]n any cause on review as may be necessary to its complete determination.”6 Further, R.C. 2505:03, at the time relevant herein, provided that “[e]very final order, judgment, or decree of a court * * * may be reviewed * * * unless otherwise provided by law * * In addition, Ohio has adopted Appellate Rules that make every litigant entitled [85]*85to “[a]n appeal as of right * * * by filing a notice of appeal * * * within the time allowed * * App. R. 3(A).
By developing a process of appellate review, states provide litigants with a property interest in the right to appeal. Clearly litigants cannot be deprived of this right without being granted due process of law.
Due process has been held to protect “* * * those fundamental principles of liberty and justice which lie at the base of our civil and political institutions * * *,” Hurtado v. California (1884), 110 U.S. 516, 535, and to guarantee those procedures which are required for the “* * * protection of ultimate decency in a civilized society,” Adamson v. California (1947), 332 U.S. 46, 61 (Frankfurter, J., concurring). On a more practical level, procedural due process places upon the government the duty to give reasonable notice, and an opportunity to be heard, to those whose interests in life, liberty or property are adversely affected by governmental action. Tribe, American Constitutional Law (2 Ed. 1988) 683, Section 10-8.
Having held that for due process purposes litigants are entitled to reasonable notice of the trial court’s appealable orders, it is necessary for this court to state exactly what kind of notice constitutes reasonable notice. This question could best be answered by the Supreme Court Rules Advisory Committee after consultation with Ohio’s bench, bar and court clerks’ association. When more than a handful of parties are affected, creation of a new law through statutory enactment or formal administrative rulemaking is much more desirable than creation of new law through judicial decision. Unlike the courts, the legislature and administrative agencies are better able to develop, through appropriate testimony, an understanding of the need for rules and regulations. The legislature and administrative agencies can notify all interested parties and receive their opinions. Such bodies can freely consult experts and community leaders and they can publish tentative rules that are subject to public debate. Generally speaking, the courts cannot act in this fashion. Still, we would leave our judicial system in a morass of confusion if we failed to promulgate appropriate rules defining the limits of today’s decision. We will, therefore, for the time being, adopt the rules set forth below and invite the Supreme Court Rules Advisory Committee, and Ohio’s bench, bar and court clerks’ association, to study these rules and recommend any changes they deem appropriate.
We have already seen that the federal system promulgated Fed. R. Civ. P. 77(d) when confronted with the questions facing us. Other jurisdictions have adopted similar rules.7
[86]*86For our purposes, we believe that the following rules will meet the due process requirements contemplated by Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306. 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.
The rules we have promulgated today8 will impose relatively little burden on Ohio’s courts, but will remove a tremendous burden from Ohio’s attorneys and litigants who are presently required to constantly review the trial court’s journal to see if a final judgment has been entered. In fact, our decision should aid the courts as it will no longer be necessary for them to respond to countless telephone, mail and personal inquiries regarding docket entries.9 It also insures that the judicial process, which depends upon the active participation of adversarial lawyers and litigants, will have their full participation in most cases.
In summation, Moldovan requires that parties to a judgment be given reasonable notice of a final appealable order.10 What constitutes such notice is fully expressed by the rules herein, which rules shall have only prospective application. Appellants received no such notice. Accordingly, for all the foregoing reasons, the judgment of the court of appeals is reversed and the cause is remanded to the court of appeals for consideration of appellants’ appeal on the merits.
Judgment reversed and cause remanded.
Moyer, C.J., Sweeney, Holmes and H. Brown, JJ., concur.
Locher and Wright, JJ., concur in judgment only.