KMV V, Ltd. v. Debolt

Mar 5, 2010
2009-P-0079
Versions:2010-Ohio-827

Stephen D. Dodd, Meyers, Roman, Friedberg & Lewis, 28601 Chagrin Boulevard, #500, Cleveland, OH 44122 (For Plaintiff-Appellee).

George W. Cochran, Smith, Greenberg & Leightty, P.L.L.C., 2321 Lime Kiln Lane, Ste. C, Louisville, KY 40222 (For Defendant-Appellant).

MEMORANDUM OPINION

DIANE V. GRENDELL, J.

{¶1} On December 2, 2009, appellant, Jason A. Debolt, filed a notice of appeal from an October 30, 2009 entry of the Portage County Court of Common Pleas.

{¶2} The notice of appeal was due on Monday, November 30, 2009, which was not a holiday or a weekend. App.R. 4(A) states that:

{¶3} “A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day rule period in Rule 58(B) of the Ohio Rules of Civil Procedure.”

{¶4} Loc.R. 3(D)(2) of the Eleventh District Court of Appeals provides:

{¶5} “In the filing of a Notice of Appeal in civil cases in which the trial court clerk has not complied with Ohio Civ.R. 58(B), and the Notice of Appeal is deemed to be filed out of rule, appellant shall attach an affidavit from the trial court clerk stating that service was not perfected pursuant to Ohio App.R. 4(A). The clerk shall then perfect service and furnish this Court with a copy of the appearance docket in which date of service has been noted. Lack of compliance shall result in the sua sponte dismissal of the appeal under Ohio App.R. 4(A).” (Emphasis sic.)

{¶6} Here, appellant has neither complied with the thirty-day rule set forth in App.R. 4(A) nor alleged that there was a failure by the trial court clerk to comply with Civ.R. 58(B). The time requirement is jurisdictional in nature and may not be enlarged by an appellate court. State ex rel. Pendell v. Adams Cty. Bd. of Elections (1988), 40 Ohio St.3d 58, 60; App.R. 14(B).

{¶7} Accordingly, this appeal is dismissed, sua sponte, pursuant to App. R. 4(A).

{¶8} Appeal dismissed.

MARY JANE TRAPP, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.