Smith v. Partlow

2025 Ohio 607

• Court: Ohio Court of Appeals
• Decided: February 24, 2025
• Docket: 2024-P-0058
• Status: Published

Opinion

[Cite as Smith v. Partlow, 2025-Ohio-607.]

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

ANTHONY J. SMITH, CASE NO. 2024-P-0058

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

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

OPINION

Decided: February 24, 2025 Judgment: Affirmed

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, P.O. Box 1562, Stow, OH 44224 (Defendant-Appellee).

MATT LYNCH, J.

{¶1} This case is a direct appeal filed by plaintiff-appellant, Anthony J. Smith,

from the judgment of the Portage County Court of Common Pleas denying his Civ.R.

60(B) motion for relief from judgment. For the following reasons, we affirm.

{¶2} In December 2021, Smith filed in the trial court a complaint against

defendant-appellee, Attorney Michael A. Partlow, alleging legal malpractice in relation to

Smith’s criminal conviction in Trumbull County case no. 04CR574. Attorney Partlow

answered the complaint, and the matter came before the trial court on cross-motions for

summary judgment. {¶3} On August 24, 2023, the trial court denied Smith’s motion for summary

judgment, granted Attorney Partlow’s motion for summary judgment, and dismissed the

case with prejudice. The clerk, under Civ.R. 58(B), served notice of the judgment on the

parties by regular mail that same day.

{¶4} On November 6, 2023, Smith filed in this court a notice of appeal from the

trial court’s August 24 judgment entry. The appeal was untimely. See App.R. 4(A)(1)

(requiring an appellant to file the notice of appeal required by App.R. 3 within 30 days of

an order that is final upon its entry). Smith included a memorandum explaining why he

was unable to perfect a timely appeal. According to Smith, (1) Civ.R. 58(B) requires the

clerk to serve parties with a copy of the judgment entry, not merely notice of the judgment;

(2) App.R. 4(A) tolls the time for filing a notice of appeal if service of the judgment is not

made in accordance with Civ.R. 58(B); and (3) Eleventh Dist.Loc.R. 3(C)(2) requires that

an appellant attach to a notice of appeal a copy of the judgment entry being appealed.

Smith avers that he received the clerk’s notice of judgment on August 28 but did not

receive a copy of the judgment entry until October 12. Smith therefore contends that the

triggering date for the filing of his notice of appeal was October 12, i.e., the day he

received a copy of the trial court’s final judgment entry, and not August 24, i.e., the day

that the clerk served him with notice of the judgment.

{¶5} We dismissed Smith’s appeal as untimely, explaining that “[t]his court is not

empowered to extend the time deadline in civil cases.” Smith v. Partlow, 2023-Ohio-

4598, ¶ 5 (11th Dist.), citing State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio

St.3d 58, 60 (1988) and App.R. 14(B).

Case No. 2024-P-0058 {¶6} On June 17, 2024, Smith filed in the trial court a Civ.R. 60(B) motion for

relief from judgment. He requested the trial court to vacate the August 24, 2023 judgment

and reissue the judgment to allow Smith to file a timely notice of appeal.

{¶7} The trial court denied Smith’s Civ.R. 60(B) motion, stating that Smith had

conflated the clerk’s duties under Civ.R. 58(B) to serve notice of the judgment within three

days with this court’s requirement under Eleventh Dist.Loc.R. 3(C)(2) that a copy of the

judgment entry be included with the notice of appeal.

{¶8} Smith has filed a timely notice of appeal from the trial court’s denial of his

Civ.R. 60(B) motion. For ease of discussion, we consider Smith’s two assignments of

error in reverse order.

{¶9} In his second assignment of error, Smith contends that the trial court erred

by failing to conclude that Civ.R. 58(B) requires the clerk to serve the parties with notice

of the judgment and a copy of the trial court’s judgment entry.

{¶10} The interpretation of a civil rule presents a question of law, which we review

de novo. See, e.g., Archer v. Vallette, 2022-Ohio-3560, ¶ 17 (10th Dist.).

{¶11} The plain language of Civ.R. 58(B) (“Notice of Filing”) requires only that the

clerk serve “notice of the judgment and its date of entry upon the journal”:

When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete. The failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided in App.R. 4(A).

Case No. 2024-P-0058 (Emphasis added.) See also Clermont Cty. Transp. Improvement Dist. v. Gator Milford,

L.L.C., 2015-Ohio-241, syllabus (“The 30-day time period to file a notice of appeal begins

upon service of notice of the judgment and notation of service on the docket by the clerk

of courts regardless of actual knowledge of the judgment by the parties.”).

{¶12} Nevertheless, Smith argues that the clerk must be required to serve parties

with a copy of the judgment because this court’s local rule requires a copy of the judgment

being appealed to be attached to the notice of appeal. Eleventh Dist.Loc.R. 3(C)(2)

provides: “The appellant shall attach to the Notice of Appeal, a copy of the judgment entry

or entries being appealed. Appellant’s failure to attach a copy of the judgment entry or

entries may result in the dismissal of the appeal sua sponte and without notice.”

{¶13} Smith’s argument is not persuasive. Smith submitted a memorandum with

his notice of appeal explaining why he failed to comply with the timeliness requirement of

App.R. 4(A). However, failure to file a notice of appeal within the time prescribed by law

is a jurisdictional defect for which we could provide no relief. See Smith, 2023-Ohio-4598,

at ¶ 2 (11th Dist.), citing In re H.F., 2008-Ohio-6810, ¶ 17, citing Pendell, 40 Ohio St.3d

at 60.

{¶14} On the other hand, failure to attach the judgment entry being appealed to

the notice of appeal is not a jurisdictional defect. This is apparent from the use of the

word “may” in Eleventh Dist.Loc.R. 3(C)(2): “failure to attach a copy of the judgment entry

. . . may result in the dismissal of the appeal . . . .” (Emphasis added.) See, e.g., State

ex rel. Ames v. Portage Cty. Bd. of Commrs., 2024-Ohio-146, ¶ 8, fn. 2 (11th Dist.) (where

we chose to address the appellant’s arguments despite his failure to attach the correct

judgment entry). We have invoked Eleventh Dist.Loc.R. 3(C)(2) in criminal appeals when

Case No. 2024-P-0058 it is unclear which order is being appealed and, assuming that the appeal was taken from

the last judgment on the docket, the appeal was untimely. See, e.g., State v. Molson,

2021-Ohio-1065, ¶ 12 (11th Dist.); State v. Foster, 2021-Ohio-907, ¶ 12 (11th Dist.).

Here, Smith could have filed a timely notice of appeal on which he “designated the

judgment . . . appealed from,” see App.R. 3(D), and submitted a memorandum explaining

why he was unable to attach a copy of the judgment entry being appealed. See also

App.R. 41(A) (“The courts of appeals may adopt rules concerning local practice in their

respective courts that are not inconsistent with the rules promulgated by the Supreme

Court.”).

{¶15} Smith asserts no other argument as to why we should interpret Civ.R. 58(B)

to mean that the clerk must serve the parties in a civil action with notice of the judgment

and a copy of the court’s judgment. Accordingly, we conclude that Smith’s second

assignment of error is not well taken.

{¶16} In his first assignment of error, Smith contends that the trial court erred and

abused its discretion by denying his Civ.R. 60(B) motion for relief from judgment.

{¶17} “An appellate court reviews a decision on a Civ.R. 60(B) motion for abuse

of discretion.” State ex rel. Jackson v. Ohio Adult Parole Auth., 2014-Ohio-2353, ¶ 21.

{¶18} “On motion and upon such terms as are just, the court may relieve a party

or his legal representative from a final judgment . . . .” Civ.R. 60(B). “To prevail on a

motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has

a meritorious defense or claim to present if relief is granted; (2) the party is entitled to

relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion

is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1),

Case No. 2024-P-0058 (2) or (3), not more than one year after the judgment, order or proceeding was entered or

taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976),

paragraph two of the syllabus. “Should any prong of the standard for granting motions

brought under Civ.R. 60(B) be unsatisfied, relief shall be denied.” Argo Plastics Prods.

Co. v. Cleveland, 15 Ohio St.3d 389, 391 (1984), citing GTE Automatic at 151 (“these

requirements are independent and in the conjunctive, not the disjunctive”).

{¶19} Smith argues that the trial court should have granted his motion under

Civ.R. 60(B)(1) (“mistake, inadvertence, surprise or excusable neglect) and (B)(5) (“any

other reason justifying relief from the judgment”) because he was not served with a copy

of the trial court’s August 24, 2023 judgment entry, which prevented him from filing a

timely notice of appeal.

{¶20} “A trial court’s failure to give reasonable notice of the entry of a final

judgment may, in an appropriate case, provide a basis for granting relief under Civ.R.

60(B)(5) when the party seeking relief has lost its right of appeal due to the failure of

notice.” Baek v. Cincinnati, 43 Ohio App.3d 158, 158 (1st Dist. 1988); see also Ostanek

v. Ostanek, 2022-Ohio-2197, ¶ 20 (11th Dist.). Having concluded, however, that the clerk

was not required to serve Smith with a copy of the judgment entry and that he was not

precluded from filing a timely notice of appeal, Smith has not met his burden to establish

any reason justifying relief from the judgment.

{¶21} Moreover, Civ.R. 60(B) generally does not permit a trial court to vacate and

then reenter a judgment for the sole purpose of allowing an otherwise untimely appeal.

See Rose v. Rose, 23 Ohio App.2d 201, 202 (1st Dist. 1970); accord Steadley v.

Montanya, 67 Ohio St.2d 297, 299 (1981) (“Civ.R. 60(B) may not be used as a substitute

Case No. 2024-P-0058 for a timely appeal or to accommodate a party by extending the normal period for

appeal.”).

{¶22} Smith has not demonstrated that it was an abuse of discretion for the trial

court to deny his Civ.R. 60(B) motion. We therefore conclude that his first assignment of

error has no merit.

{¶23} For the reasons provided in this opinion, the judgment of the Portage

County Court of Common Pleas is affirmed.

JOHN J. EKLUND, J.,

EUGENE A. LUCCI, J.,

concur.

Case No. 2024-P-0058