Cook v. SmithCook v. Smith
Rendered on October 25, 2012
Jeffery K. Lucas, for appellants.
Isaac, Brant, Ledman & Teetor LLP, Mark Landes, and James M. Young, for appellees Scott Elliot Smith and Smith Phillips and Associates Co., LPA.
The Ohio State University, Elizabeth I Cooke, and Matthew S. Grimsley, Legal Intern, for appellee Leon Lively.
Ice Miller LLP, Susan Porter, and Angela Courtwright, for appellees Christina Corl, Esq. and Crabbe Brown & James LLP.
Reminger Co., LPA, Michael Romanello, and Melvin J. Davis, for appellees Todd Collis, Esq. and Collis, Smiles & Collis, LLC.
Organ Cole & Stock LLP, and Shawn J. Organ, for appellee Janet Phillips.
ON MOTION TO DISMISS
{¶ 1} Pursuant to
{¶ 2} Appellants filed this action against defendants-appellees, Scott Elliot Smith, Smith Phillips & Associates Co., LPA, Scott Elliot Smith, LPA, Jan[et] Phillips (“Phillips“), Leon Lively, Christina Corl, Crabbe Brown & James, LLP, Todd Collis, and Collis, Smiles & Collis, LLC (collectively, “defendants“), on December 14, 2010, and they filed a second amended complaint on August 3, 2011. On June 28 and 29, 2011, the trial court dismissed appellants’ claims against the following defendants: Christina Corl; Crabbe Brown & James, LLP; Todd Collis; Collis, Smiles & Collis, LLC; and Leon Lively. On January 11, 2012, the trial court dismissed appellants’ claims against defendants Scott Elliot Smith, Smith Phillips & Associates Co., L.P.A., and Scott Elliott Smith, LPA (collectively, the “Smith defendants“). As of that date, appellants’ claims remained pending only against Phillips, whose motion to dismiss was pending before the trial court.
{¶ 3} On February 3, 2012, appellants filed a notice of appeal from “the orders dismissing the Plaintiffs’ Complaint against the Defendants, as attached as Exhibit A * * *[,] and the final appealable order entered upon the record on January 11, 2012 and said order entered upon the record on January 30, 2012.” The notice of appeal did not mention any defendant by name. Attached to the notice of appeal were the trial court‘s decisions and entries dated June 28 and 29, 2011, and January 11, 2012. No January 30, 2012 order was attached to the notice of appeal, nor does it appear from the docket that
{¶ 4} On June 7, 2012, the trial court issued a final judgment entry, by which it granted Phillips’ motion to dismiss for the same reasons it dismissed appellants’ claims against the Smith defendants. The following day, the clerk of courts refiled appellants’ previous notice of appeal and served it on all counsel of record, including Phillips’ counsel. Because the clerk simply refiled the February 3, 2012 notice of appeal, as ordered by this court, the notice of appeal does not identify the trial court‘s June 7, 2012 judgment.
{¶ 5} Appellants claim that they attempted to e-file a second notice of appeal within 30 days of the trial court‘s final judgment entry. That notice of appeal, attached to appellants’ memorandum contra Phillips’ motion to dismiss this appeal, expressly claimed that appellants were appealing not only the rulings specified in the first notice of appeal, but also the trial court‘s June 7, 2012 ruling. For unknоwn reasons, however, the clerk of courts rejected that filing on July 9, 2012.
{¶ 6} The Ohio Rules of Appellate Procedure specify the means for perfecting an appeal from an adverse judgment. “An appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4.”
{¶ 7} The timely filing of a notice of appeal is the only jurisdictional requirement for perfecting a valid appeal. Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (1995), syllabus. “Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of apрeals deems appropriate, which may include dismissal of the appeal.”
{¶ 8}
{¶ 9} In Transamerica at 322, the Supreme Court of Ohio treated a failure to comply with
{¶ 10} Phillips relies on several cases from the Eighth District Court of Appeals, which has held that a failure to designate the judgment or order appealed in a notice of appeal is a jurisdictional defect, precluding appellate review. See, e.g., Sec. Fed. S. & L. Assn. v. Simon, 8th Dist. No. 55971 (Mar. 16, 1989), quoting Jordan v. Appelbaum, 8th Dist. No. 46675 (Nov. 23, 1983) (” ‘[W]here an appellant indicates that he is only appealing from the first order or аrgument, the failure to indicate that an appeal is also being taken from a later order or judgment, precludes this court from acquiring jurisdiction to consider the matter.’ “). The Eighth District, however, has not consistently applied that rule. For example, in In re: S.G. & M.G., 8th Dist. No. 84228, 2005-Ohio-1163, ¶ 17, the court rejected such prior authority and stated as follows:
[I]t is the timely filing of the notice of appeal that is a jurisdictional prerequisite to this court‘s authority, not the contents of that notice. Indeed, a reviewing court is free to take whatever action it believes is appropriate, including dismissal of the appeal when a notice of appeal is defective under
App.R. 3 . When it does so, however, it is not because of any jurisdictional impediment, but as an exercise of its discretion under this rule.
(Emphasis sic.) See also In re A.D., 8th Dist. No. 87510, 2006-Ohio-6036, ¶ 18-22, following In re: S.G. & M.G.; In re A.C., 160 Ohio App.3d 457, 2005-Ohio-1742, ¶ 20 (8th Dist.) (“It is within the discretion of the appellate court to allow or disallow an appeal that lacks one of the prerequisites contained in
{¶ 12} In Am. Chem. Soc. v. Leadscope, 10th Dist. No. 08AP-1026, 2010-Ohio-2725, reversed in part on other grounds, __ Ohio St.3d __, 2012-Ohio-4193, this court was faced with a scenario in which the appellant filed a premаture notice of appeal because a pending motion for attorney fees in the trial court precluded the trial court‘s ruling from being a final, appealable order. Pursuant to
Initially, [appellees] argue a premature notice of appeal under
App.R. 4(C) does not grant appellate jurisdiction over the trial court‘s eventual final order but only over the issues resolved in the interlocutory order, or prior orders subsumed in it, from which the appeal was prematurely taken. Secondly, defendants assert that in order to invoke appellate jurisdiction over the eventual final order, ACS was required to amend the premature notice of appeal underApp.R. 3(F) to specifically designate, asApp.R. 4(D) requires, the final judgment as the order being appealed. Thirdly, defendants contend ACS‘s amendment must be made within 30 days of the final order or the jurisdictional requirement ofApp.R. 4(A) is not met. Lastly, defendants maintain not only that ACS needed to seek аnd obtain leave from this court to amend ACS‘s notice of appeal, but that we lack the discretion to allow such amendment unless leave first is sought.
This court described the appellees’ first three propositions as “debatable under Ohio law,” but concluded that the fourth proposition, which this court rejected, was dispositive. Id. Because the appellant filed an amended notice of appeal that designated the trial court‘s final judgment within 30 days of that judgment, and becausе this court had discretion to allow the amendment, we stated that “[w]e need not consider whether we would have jurisdiction over the final order in the absence of any amendment to the premature notice of appeal or whether we could have allowed the amendment after 30 days had passed.” Id. at ¶ 21. Here, appellant attempted to file a second notice of appeal within 30 days of the trial court‘s final judgment, but the clerk of courts did not accept the filing. Accordingly, we must consider some of the questions that remained unanswered in Am. Chem. Soc.
{¶ 14} Based on Transamerica and Interstate Gas Supply, we conclude that we have jurisdiction to consider appellants’ appeal, including their appeal of the judgment in favor of Phillips, because appellants filed a timely notice of appeal from the trial court‘s final judgment, the only jurisdictional prerequisite for perfecting an appeal. This court has jurisdiction only to consider appeals from final, appealable orders. George v. State, 10th Dist. No. 10AP-4, 2010-Ohio-5262, ¶ 11;
{¶ 15} Cases in which this court has dismissed appeals based upon the notice of appeal are distinguishable. For example, in Marcum v. Colonial Ins. Co. of Wisconsin, 10th Dist. No. 02AP-917, 2003-Ohio-4369, this court dismissed an appeal from one of two consolidated cases where the appellant filed a single notice of appeal that listed only one of the two cоnsolidated case captions and case numbers. The appellant admitted that she failed to file a notice of appeal in one of the cases, but argued that it was evident, based upon her assignments of error, that she intended to appeal the judgments in both cases. Because an appeal is perfected when a written notice of appeal is filed and because the time requirement for filing a notice of appeal under
{¶ 16} In reaching its conclusion, this court distinguished Natl. Mut. Ins. Co. v. Papenhagen, 30 Ohio St.3d 14 (1987), in which the Supreme Court of Ohio reversed the dismissal of an appeal where the appellant filed a single notice of appeal from the trial court‘s joint judgment entry in consolidated cases, in violation of the local appellate court rule, but where the notice of appeal listed both case captions and both case
{¶ 17} Here, we have a single case and a single, final appealable order. The notice of appeal was timely refiled within 30 days of the trial court‘s final order. Thus, we conclude that appellants’ timely notice of appeal cloaks this court with jurisdiction over this appeal, including appellants’ appeal of the trial court‘s dismissal of the claims against Phillips.
{¶ 18} Appellants filed a motion to amend their notice of appeal on August 24, 2012 to specify their intention of appealing the trial court‘s June 7, 2012 order, as well as the trial court‘s earlier June 29, 2011 and January 11, 2012 orders, which merged into the final judgment. On August 29, 2012, appellants filed an amended motion to amend their notice of appeal to reinstate a mistakenly omitted designation of one defendant as an “LPA.” Phillips opposed appellants’ motion to amend and argues that this court lacks discretion to grant the requested relief because more than 30 days had elapsed between the trial court‘s final order and appellants’ motion to amend.
{¶ 19} Pursuant to
“[T]his court has consistently been of the opinion that where the notice of appeal is filed in time in the lower court, the appeal is perfected, and all subsequent requirements, not being jurisdictional, can be amended to comply with the accurate facts in the interest of an expeditious and orderly trial of the merits of the particular case.”
{¶ 20} In a recent case, this court denied a father‘s motion to amend his notice of appeal to include a second judgment. See J.V.C.-N. v. M.P.D., 10th Dist. No. 11AP-581, 2012-Ohio-1418. There, the appellant moved to amend his notice of appeal, which referred only to a June 1, 2011 judgment that dismissed the appellant‘s pending motions for failure to prosecute. Appellant argued, in his motion to аmend, that he also intended to appeal the trial court‘s June 30, 2011 judgment, by which the trial court ordered the appellant to pay child support, medical expenses, and attorney fees. This court stated, at ¶ 20, that “our jurisdiction over the June 30, 2011 judgment depends on whether there exists ‘a timely filed notice of appeal’ from that judgment.” After noting that the appellant‘s notice of appeal and docketing statement, both filed after the June 30, 2011 judgment, unambiguously referred only to the June 1, 2011 judgmеnt, this court stated that it would not construe the notice of appeal as a timely notice of appeal from the June 30, 2011 judgment. We stated that “the notice of appeal in this case was expressly sought to appeal from one judgment to the exclusion of another.” Id. at ¶ 22. We held that, because the appellant did not file a timely notice of appeal from the June 30, 2011 judgment, there was no notice of appeal to amend.
{¶ 21} In the case before us now, this cоurt granted appellants’ amended motion to amend their notice of appeal on September 19, 2012, and we stand by that ruling. Numerous Ohio courts have permitted amendments to notices of appeal, or considered assignments of error stemming from rulings not specifically identified in the notices of appeal, in analogous situations. See, e.g., S. Christian Leadership Conference v. Combined Health Dist., 191 Ohio App.3d 405, 2010-Ohio-6550 (2d Dist.) (allowing appeal of entire judgment of dismissal even though notice of appeal specified only one of two motions tо dismiss); Smith v. Inland Paperboard & Packaging, Inc., 11th Dist. No. 2007-P-0088, 2008-Ohio-6984 (considering assignment of error from trial court‘s
{¶ 22} When presented with non-jurisdictional defects in a notice of appeal, as here, this court has discretion to determine whether sanctions, including dismissal, are warranted. “When presented with a notice of appeal that fails tо comply with [the requirement that the notice designate the judgment or order being appealed], an appellate court must determine whether the notice served its intended purpose despite its defect.” Paasewe v. Wendy Thomas 5 Ltd., 10th Dist. No. 09AP-510, 2009-Ohio-6852, ¶ 10, citing Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 257, 259-60 (1982). The purpose of a notice of appeal is to apprise the opposing party of the taking of an appeal. Maritime Mfrs. at 259. In determining whether dismissal is warranted, we may also consider other factors. For example, in Transamerica, the Supreme Court considered whethеr an appellant‘s mistake was made in good faith, whether prejudice arose as a result of the mistake, whether dismissal would constitute a disproportionate sanction, whether the client would be punished for counsel‘s action, and whether dismissal frustrated the overriding objective of deciding cases on their merits.
{¶ 23} Our dismissal of appellants’ previous appeal made clear that appellants could only appeal from the trial court‘s final judgment, which would issue when the triаl court resolved Phillips’ motion to dismiss. Further, appellants’ claims against Phillips were identical to their claims against the Smith defendants, and the trial court based its dismissal of the claims against Phillips on the same rationale it used to dismiss the claims against the Smith defendants. Phillips’ counsel was served with appellants’ notice of appeal, both when appellants originally filed it and again when the clerk of courts refiled it, after the trial court‘s final judgment. In addition to her knowledge that appellants were challenging the trial court‘s rationale for dismissing appellants’ claims against her and the Smith defendants, Phillips admits that appellants’ assignments of error put her on notice that appellants were challenging the trial court‘s dismissal of the claims against her. Given this court‘s dismissal of appellants’ previous appeal for lack of
{¶ 24} In conclusion, and for all these reasons, we overrule Phillips’ motion to dismiss.
Motion to dismiss denied.
BRYANT and TYACK, JJ., concur.