2017 Ohio 464
Ohio Ct. App.2017Background
- In June 2014 a magistrate issued an ex parte temporary civil protection order (CPO) against Mitchell Leventhal in favor of Sherri Besman; after trial in June 2015 the magistrate found Leventhal in contempt and issued a full CPO.
- Leventhal filed objections to the magistrate’s contempt finding but did not file objections to the CPO; instead he requested findings of fact and conclusions of law.
- The trial court denied his request as inapplicable to Civ.R. 65.1 protection-order proceedings; Leventhal then moved for a new trial and/or relief from judgment, which the court denied.
- Besman moved to dismiss Leventhal’s appeal from the CPO as untimely under App.R. 4(A); the court analyzed whether post-judgment motions tolled the appeal period in Civ.R. 65.1 cases.
- The court concluded Civ.R. 65.1 supersedes inconsistent post-judgment procedures (including requests for findings and certain motions) and held Leventhal’s post-judgment motions were superfluous or inapplicable and therefore did not toll the time to appeal.
- The court dismissed the appeal from the CPO as untimely and reiterated that a prior dismissal of Leventhal’s contempt-appeal is res judicata.
Issues
| Issue | Besman’s Argument | Leventhal’s Argument | Held |
|---|---|---|---|
| Whether a post-judgment request for findings of fact and conclusions of law is permitted in Civ.R. 65.1 CPO proceedings | Civ.R. 65.1 is summary and supersedes such requests; allowing them would delay protection orders | Civ.R. 65.1 does not expressly prohibit post-judgment requests for findings; such a request would not delay enforceability | Denied: Civ.R. 65.1 supersedes inconsistent civil rules; requests for findings are inconsistent and not permitted; court already used Form 10.01-G to state findings |
| Whether a motion for new trial (Civ.R. 59) or relief from judgment (Civ.R. 60(B)) tolls the 30-day appeal period in a Civ.R. 65.1 proceeding | Such post-judgment motions are inappropriate or superfluous in Civ.R. 65.1 and do not toll appeal time | Tolling applies because App.R. 4(B)(2)(b) lists Civ.R. 59 motions among those that can toll appeal time | Denied: Civ.R. 60(B) does not toll appeal time; Civ.R. 59 motions are inappropriate/superfluous in Civ.R. 65.1 proceedings and did not toll the appeal period |
| Whether the court’s use of Form 10.01-G satisfied the need for findings enabling appellate review | Form 10.01-G contains express findings of fact and was properly used | Requested separate detailed findings were still necessary | Held: Form 10.01-G provided sufficient findings of fact; additional request was superfluous |
| Whether the prior dismissal of Leventhal’s appeal from the contempt order precludes relitigation of timeliness | The prior dismissal was proper and final | Argued tolling from motion for new trial should affect timeliness | Held: Prior dismissal of contempt appeal was untimely and that dismissal is res judicata; Leventhal failed to seek reconsideration or further review |
Key Cases Cited
- In re H.F., 120 Ohio St.3d 499, 900 N.E.2d 607 (Ohio 2008) (untimely appeal deprives appellate court of jurisdiction)
- State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 531 N.E.2d 713 (Ohio 1988) (timeliness under appellate rules is jurisdictional)
- Schneider v. Razek, 28 N.E.3d 59 (8th Dist. 2015) (Civ.R. 65.1 intended to expedite protection-order proceedings)
- J. & F. Harig Co. v. Cincinnati, 61 Ohio App. 314, 22 N.E.2d 540 (1st Dist. 1938) (superfluous post-judgment motions do not toll appeal time)
- Colley v. Bazell, 64 Ohio St.2d 243, 416 N.E.2d 605 (Ohio 1980) (Civ.R. 60(B) motions do not toll time for filing an appeal)