2023 Ohio 4097
Ohio Ct. App.2023Background
- Case: Appeal from Chardon Municipal Court judgment entered September 8, 2023.
- Appellant (A. Caserta Construction, LLC) filed a notice of appeal on October 11, 2023 and a motion for leave to file a delayed appeal on October 12, 2023.
- Appellee (Heather Greenwood) moved to dismiss the appeal as untimely.
- Trial-court clerk noted copies mailed on September 11, 2023; Civ.R. 58(B) three-day mailing rule was therefore satisfied, so the 30-day appeal clock began on September 8, 2023.
- The 30-day deadline expired October 10, 2023; appellant’s October 11 filing was untimely.
- Court held a motion for delayed appeal is not available in civil cases and dismissed the appeal under App.R. 4(A)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the notice of appeal was timely under App.R. 4(A)(1) and Civ.R. 58(B) | Greenwood argued the appeal was untimely because the 30‑day clock ran from entry on Sept. 8 and expired Oct. 10 | Caserta argued its appeal was timely or that mailing date altered the deadline | Held: Clerk mailed within three days, so appeal deadline was Oct. 10; notice filed Oct. 11 was untimely |
| Whether a motion for delayed appeal may cure an untimely civil appeal | Greenwood argued delayed-appeal relief is inapplicable to civil cases | Caserta sought leave to file a delayed appeal under App.R. 5(A) | Held: Motion for delayed appeal is unavailable in civil proceedings; court lacks power to extend the civil appeal deadline; dismissal affirmed |
Key Cases Cited
- In re H.F., 120 Ohio St.3d 499 (Ohio 2008) (failure to comply with App.R. 4(A) is a jurisdictional defect)
- State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58 (Ohio 1988) (appellate time limits in civil cases cannot be extended by the court)
- Coles v. Lawyers Title Ins. Corp., 163 Ohio App.3d 659 (Ohio Ct. App. 2005) (if Civ.R. 58(B) service occurs within three days, the appeal period begins on the journal entry date)