Smith v. Partlow

2023 Ohio 4598

• Court: Ohio Court of Appeals
• Decided: December 18, 2023
• Docket: 2023-P-0090
• Status: Published

Opinion

[Cite as Smith v. Partlow, 2023-Ohio-4598.]

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

ANTHONY J. SMITH, CASE NO. 2023-P-0090

Plaintiff-Appellant, Civil Appeal from the - vs - Court of Common Pleas

MICHAEL A. PARTLOW, ESQ., Trial Court No. 2021 CV 00751 Defendant-Appellee.

MEMORANDUM OPINION

Decided: December 18, 2023 Judgment: Appeal dismissed

Anthony J. Smith, pro se, PID# A484-639, Lake Erie Correctional Institution, 501 Thompson Road, P.O. Box 8000, Conneaut, OH 44030 (Plaintiff-Appellant).

Michael A. Partlow, pro se, 112 South Water Street, Suite C, Kent, Ohio 44240 (Defendant-Appellee).

JOHN J. EKLUND, P.J.

{¶1} On November 6, 2023, appellant, Anthony J. Smith, filed a pro se appeal

from an August 24, 2023 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 trial court issued its entry on August 24, 2023. 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 August 24, 2023. The deadline for appellant to file his notice of appeal

was September 25, 2023, which was not a holiday or a weekend. Thus, appellant’s

November 6, 2023 notice of appeal was untimely filed by 42 days.

{¶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 dismissed as untimely pursuant to

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

MARY JANE TRAPP, J.,

ROBERT J. PATTON, J.,

concur.

Case No. 2023-P-0090