2012 Ohio 2018
Ohio Ct. App.2012Background
- Meigs County Court of Common Pleas dismissed the forfeiture complaint and ordered release of the Harley Davidson to Robert Russell (Jan. 10, 2011).
- State alleged the vehicles, including the Harley, were used in felonies; Russell claimed ownership of the Harley.
- Trial court docketed a nunc pro tunc entry (Jan. 19, 2011) adding storage-cost language to the dismissal.
- State filed a notice of appeal on Feb. 15, 2011.
- Appellate court held the Jan. 10 order was final and appealable; the Jan. 19 nunc pro tunc entry was a nullity and did not extend the appeal period.
- Even if the Jan. 19 entry were valid, the appeal would still be untimely as it must be within 30 days of the Jan. 10 order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the state's appeal was timely and within jurisdiction. | State contends timely appeal from Jan. 10 order. | Russell (defendant) argues Jan. 19 nunc pro tunc entry is a nullity and cannot extend the period. | Untimely; lack of jurisdiction to review. |
Key Cases Cited
- Mullins v. Grosz, 10th Dist. No. 10AP-23, 2010-Ohio-3844 (Ohio 2010) (final order dismissal is a final appealable order)
- N. Shore Auto Financing, Inc. v. Valentine, 8th Dist. No. 90686, 2008-Ohio-4611 (Ohio 2008) (trial court cannot modify final orders sua sponte)
- Burriss v. Burriss, 4th Dist. Nos. 09CA21 & 10CA11, 2010-Ohio-6116 (Ohio 2010) (nunc pro tunc modifications to final orders generally improper)
- West v. Geffken, 9th Dist. No. 24243, 2008-Ohio-6624 (Ohio 2008) (order nunc pro tunc to amend final order is improper)
- Allstate Ins. Co. v. Witta, 9th Dist. No. 25738, 2011-Ohio-6068 (Ohio 2011) (discusses nunc pro tunc implications)
- Hughes v. A&A Auto Sales, Inc., 4th Dist. No. 08CA35, 2009-Ohio-2278 (Ohio 2009) (jurisdictional deadline for filing an appeal)
- Dayton Police Dept. v. Pitts, 2d Dist. No. 23213, 2010-Ohio-1505 (Ohio 2010) (storage-cost issue not addressed in forfeiture context)
- State v. $1885.00 in U.S. Currency, 5th Dist. No. 2011-CA-00036, 2011-Ohio-3038 (Ohio 2011) (nunc pro tunc timing does not extend appeal period)
- Gold Touch, Inc. v. TJS Lab, Inc., 130 Ohio App.3d 106, 719 N.E.2d 629 (8th Dist.1998) (Ohio 1998) (nunc pro tunc concepts discussed)