Kertes Enterprises, Inc. v. Planning Zoning Commission

Ohio Court of Appeals

Kertes Enterprises, Inc. v. Planning Zoning Commission

587 N.E.2d 409, 68 Ohio App. 3d 48, 1990 Ohio App. LEXIS 1935

CourtOhio Court of Appeals

DecidedJune 14, 1990

DocketNo. 58092.

StatusPublished

Cited by8 cases

This text of 587 N.E.2d 409 (Kertes Enterprises, Inc. v. Planning Zoning Commission) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kertes Enterprises, Inc. v. Planning Zoning Commission, 587 N.E.2d 409, 68 Ohio App. 3d 48, 1990 Ohio App. LEXIS 1935 (Ohio Ct. App. 1990).

Pincite

Opinions

Per Curiam.

In an entry dated December 12, 1988, the trial court dismissed a developer’s zoning appeal. Six months later, the court sua sponte ordered the clerk’s office to send notice of the December 12 order to the parties, stating that the “appeal rights from said order begin to run on the date of this entry” (June 19, 1989). The developer appealed on July 14, 1989 raising three assignments of error. 1

“Civ.R. 60(B) provides the exclusive grounds which must be present and the procedure which must be followed in order for a court to vacate its own judgment.” McCue v. Buckeye Union Ins. Co. (1979), 61 Ohio App.2d 101, 15 O.O.3d 103, 399 N.E.2d 127. See, also, Hellmuth, Obata & Kassabaum v. Ratner (1984), 21 Ohio App.3d 104, 21 OBR 112, 487 N.E.2d 329; Sperry v. Hlutke (1984), 19 Ohio App.3d 156, 19 OBR 246, 483 N.E.2d 870. Relief under Civ.R. 60 may not be granted solely to allow an appeal not otherwise timely. McCue, supra. The record is devoid of evidence that the clerk initially failed to send the proper notice to the parties. Althpugh the parties were free to file a Civ.R. 60(B) motion for relief from the December 12 judgment, the court was without authority to vacate its order without affording the commission an opportunity to be heard. Rice v. Bethel (1987), 35 Ohio App.3d 133, 520 N.E.2d 26. See Hellmuth, supra.

The December 12 order triggered the App.R. 4(A) appeal period and the developer’s July 14 notice was therefore untimely. The court may not reenter judgment to circumvent the App.R. 4(A) limitation period. Mack v. Traveler’s Ins. Co. (June 29, 1989), Cuyahoga App. No. 57052, unreported, 1989 WL 73034. As we lack jurisdiction, the developer’s appeal is dismissed.

Appeal dismissed.

Ann McManamon and Walker, JJ., concur. Nahra, P.J., dissents. Robert D. Walker, J., retired, of the Hancock County Court of Common Pleas, sitting by assignment.

1

. See Appendix.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

In an entry dated December 12, 1988, the trial court dismissed a developer’s zoning appeal. Six months later, the court sua sponte ordered the clerk’s office to send notice of the December 12 order to the parties, stating that the “appeal rights from said order begin to run on the date of this entry” (June 19, 1989). The developer appealed on July 14, 1989 raising three assignments of error. 1

“Civ.R. 60(B) provides the exclusive grounds which must be present and the procedure which must be followed in order for a court to vacate its own judgment.” McCue v. Buckeye Union Ins. Co. (1979), 61 Ohio App.2d 101, 15 O.O.3d 103, 399 N.E.2d 127. See, also, Hellmuth, Obata & Kassabaum v. Ratner (1984), 21 Ohio App.3d 104, 21 OBR 112, 487 N.E.2d 329; Sperry v. Hlutke (1984), 19 Ohio App.3d 156, 19 OBR 246, 483 N.E.2d 870. Relief under Civ.R. 60 may not be granted solely to allow an appeal not otherwise timely. McCue, supra. The record is devoid of evidence that the clerk initially failed to send the proper notice to the parties. Althpugh the parties were free to file a Civ.R. 60(B) motion for relief from the December 12 judgment, the court was without authority to vacate its order without affording the commission an opportunity to be heard. Rice v. Bethel (1987), 35 Ohio App.3d 133, 520 N.E.2d 26. See Hellmuth, supra.

The December 12 order triggered the App.R. 4(A) appeal period and the developer’s July 14 notice was therefore untimely. The court may not reenter judgment to circumvent the App.R. 4(A) limitation period. Mack v. Traveler’s Ins. Co. (June 29, 1989), Cuyahoga App. No. 57052, unreported, 1989 WL 73034. As we lack jurisdiction, the developer’s appeal is dismissed.

Appeal dismissed.

Ann McManamon and Walker, JJ., concur. Nahra, P.J., dissents. Robert D. Walker, J., retired, of the Hancock County Court of Common Pleas, sitting by assignment.

1

. See Appendix.

Cite This Page — Counsel Stack

Bluebook (online)

587 N.E.2d 409, 68 Ohio App. 3d 48, 1990 Ohio App. LEXIS 1935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kertes-enterprises-inc-v-planning-zoning-commission-ohioctapp-1990.

Opinions

Related

Cite This Page — Counsel Stack