Piper v. Trumbull Twp. Bd. of Zoning Appeals

2013 Ohio 4554

• Court: Ohio Court of Appeals
• Decided: October 15, 2013
• Docket: 2013-A-0056
• Status: Published

Opinion

[Cite as Piper v. Trumbull Twp. Bd. of Zoning Appeals, 2013-Ohio-4554.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

GARY TEPLEY, : MEMORANDUM OPINION

Plaintiff, : CASE NO. 2013-A-0056 KENNETH L. PIPER, :

Appellant, :

- vs - :

TRUMBULL TOWNSHIP : BOARD OF ZONING APPEALS, et al., : Appellee.

Civil Appeal from the Court of Common Pleas, Case No. 2012 CV 16.

Judgment: Appeal dismissed.

Kenneth L. Piper, pro se, 185 Water Street, Geneva, OH 44041 (Appellant).

Catherine R. Colgan, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Appellee).

CYNTHIA WESTCOTT RICE, J.

{¶1} On August 19, 2013, appellant, Kenneth L. Piper, filed a notice of appeal

from a July 16, 2013 entry of the Ashtabula County Court of Common Pleas. The notice

of appeal was due on August 15, 2013, which was not a holiday or a weekend.

{¶2} App.R. 4(A) states that:

{¶3} “A party shall file the notice of appeal required by App.R. 3 within thirty

days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three

day rule period in Rule 58(B) of the Ohio Rules of Civil Procedure.”

{¶4} Loc.R. 3(D)(2) of the Eleventh District Court of Appeals provides:

{¶5} In the filing of a Notice of Appeal in civil cases in which the trial

court clerk has not complied with Ohio Civ.R. 58(B), and the Notice

of Appeal is deemed to be filed out of rule, appellant shall attach an

affidavit from the trial court clerk stating that service was not

perfected pursuant to Ohio App.R. 4(A). The clerk shall then

perfect service and furnish this court with a copy of the appearance

docket in which date of service has been noted. Lack of

compliance shall result in the sua sponte dismissal of the appeal

under Ohio App.R. 4(A). (Emphasis sic.)

{¶6} Here, appellant has not complied with the 30-day rule set forth in App.R.

4(A) nor alleged that there was a failure by the trial court clerk to comply with Civ.R.

58(B). Appellant has not submitted an affidavit from the trial court clerk pursuant to

Loc.R. 3(D)(2). The time requirement is jurisdictional in nature and may not be enlarged

by an appellate court. State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio

St.3d 58, 60 (1988); see also App.R. 14(B).

{¶7} Accordingly, this appeal is dismissed, sua sponte, pursuant to App.R.

4(A).

DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.