Carter-Jones Co. v. MCM Home Builders, L.L.C.

2020 Ohio 1078

• Court: Ohio Court of Appeals
• Decided: March 23, 2020
• Docket: 2020-P-0013
• Status: Published

Opinion

[Cite as Carter-Jones Co. v. MCM Home Builders, L.L.C., 2020-Ohio-1078.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

THE CARTER-JONES LUMBER CO., : MEMORANDUM OPINION

Plaintiff-Appellee, : CASE NO. 2020-P-0013 - vs - :

MCM HOME BUILDERS, LLC, et al., :

Defendant-Appellant. :

Civil Appeal from the Court of Common Pleas, Case No. 2017 CV 00232.

Judgment: Appeal dismissed.

Todd Allan Harpst and Nicholas J. Horrigan, Harpst Becker LLC, 1559 Corporate Woods Parkway, Suite 250, Uniontown, OH 44685 (For Plaintiff-Appellee).

Richard Todd Ricketts and Andrew Casey Clark, Ricketts & Clark Co., LPA, 50 Hill Road South, Pickerington, OH 43147 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Appellant, MCM Home Builders, LLC, through counsel, filed an appeal on

February 21, 2020, from a Portage County Court of Common Pleas entry.

{¶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 record shows the trial court issued its entry on January 21, 2020.

The clerk of courts noted on the appearance docket that copies were issued to the parties

on January 22, 2020. Since appellant was served within the three-day period required in

Civ.R. 58(B), the thirty-day period began to run on the date of entry of judgment, i.e.

January 21, 2020. The deadline for appellant to file its notice of appeal was February 20,

2020, which was not a holiday or a weekend. Thus, appellant’s February 21, 2020 appeal

was untimely filed.

{¶5} This court is not empowered to extend the time deadline in civil cases.

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

{¶6} Based upon the foregoing, this appeal is hereby sua sponte dismissed

pursuant to App.R. 4(A)(1).

TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.