State ex rel. Sautter v. GreyState ex rel. Sautter v. Grey
{¶ 1} This is an appeal from a judgment of the court of appeals that vacated its earlier judgment dismissing an original action in mandamus and prohibition. The court of appeals held that because the clerk of courts had not timely served notice of the original judgment on the parties, the time for filing a notice of appeal with this court began to run on the date that the clerk belatedly served the notice. Because the court of appeals’ holding in effect denied appellants their right to appeal the judgment in the writ case, we reverse.
{¶ 2} Appellants, Roland Sautter and Edward Sickmiller, are taxpayers and residents of Morrow County. Appellants filed an action in the Court of Appeals for Morrow County for writs of mandamus and prohibition (1) to compel appellee Judge Lawrence Grey of the Morrow County Court of Common Pleas, to vacate a declaratory judgment in favor of appellees C & DD Acquisitions, Ltd. and its subsidiaries, Harmony Environmental, Ltd. and Washington Environmental, Ltd., (2) to prohibit Judge Grey from modifying, reaffirming, or ratifying the declaratory judgment, and (3) to compel appellees Morrow County zoning officials to enforce the existing zoning laws as if the declaratory judgment were a nullity.
{¶ 3} On April 18, 2007, the court of appeals entered a judgment granting summary judgment in favor of appellees and dismissing appellants’ writ action. On that date, the Morrow County clerk of courts received the judgment entry and opinion in the case, but as a result of an oversight by the clerk’s office, the clerk did not deliver notice of the judgment to the parties and failed to note receipt of the judgment entry and opinion in the appearance docket.
{¶ 4} Appellants’ counsel was notified by opposing counsel on June 12 of the court of appeals’ judgment in the writ case. Appellants’ counsel then contacted the clerk’s office and was told that the office was unaware that the court of appeals had issued a judgment and opinion. The clerk delivered a copy of the April 18 judgment and opinion to the parties’ counsel on June 18 and noted the delivery on the appearance docket.
{¶ 5} Appellants’ counsel attempted to file a notice of appeal from the court of appeals’ judgment with this court on June 29, but the clerk of this court rejected the notice of appeal as untimely.
{¶ 6} Appellants filed a motion in the court of appeals to vacate and reissue the court’s April 18 judgment entry and opinion to enable appellants to perfect an appeal from that judgment to this court. Appellants attached an affidavit of one
{¶ 7} On August 13, the court of appeals granted appellants’ motion in part by vacating its April 18 opinion and judgment entry. Nevertheless, the court of appeals refused to reissue its opinion and judgment entry and instead ordered that “the service date of the opinion on June 18, 2007 began the time for filing a Notice of Appeal with the Supreme Court.”
{¶ 8} In their appeal as of right, appellants assert that the court of appeals erred in failing to reissue its April 18 judgment entry and opinion and instead ordering that the clerk’s June 18 service of the entry and opinion on the parties began the time for filing a notice of appeal to this court. We agree and reverse the judgment of the court of appeals.
{¶ 9} “[F]ailure to give reasonable notice of final appealable orders is a denial of the right to legal redress of injuries created by Section 16, Article I of the Ohio Constitution.” Moldovan v. Cuyahoga Cty. Welfare Dept. (1986),
{¶ 10} “Moldovan and Atkinson stand for the proposition that if a right of appeal from a trial court’s judgment is to have meaning, the parties to the judgment or their attorneys of record must be given notice of the judgment before the time for appeal begins to run.” Swander Ditch Landowners’ Assn. v. Joint Bd. of Huron & Seneca Cty. Commrs. (1990),
{¶ 11} The Rules of Civil Procedure are generally applicable in original actions for extraordinary writs. See, e.g., State ex rel. Ahmed v. Costine,
{¶ 13} “When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed byCiv.R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete. The failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided inApp.R. 1(A) .” (Emphasis added.)
{¶ 14}
{¶ 15} “A party shall file the notice of appeal required byApp.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 period in Rule 58(B) of the Ohio Rules of Civil Procedure.”
{¶ 16} In those cases in which both
{¶ 17} The evidence is uncontroverted here that the clerk of the court of appeals failed to serve notice of the April 18 judgment entry and opinion and the date of its journal entry upon the parties in accordance with
{¶ 19} Instead, the Supreme Court Rules of Practice govern appeals from courts of appeals to this court. S.CtPrac.R. II(2)(A)(1) provides the following with respect to perfecting an appeal from a court of appeals to the Supreme Court:
{¶ 20} “(a) To perfect an appeal from a court of appeals to the Supreme Court, * * * the appellant shall file a notice of appeal in the Supreme Court within 45 days from the entry of the judgment being appealed. The date the court of appeals filed its judgment entry for journalization with its clerk, in accordance withApp.R. 22(E) , shall be considered the date of entry of the judgment being appealed. * * *
{¶ 21} “(b) * * * [T]he time period designated in this rule for filing a notice of appeal and memorandum in support of jurisdiction is mandatory, and the appellant’s failure to file within this time period shall divest the Supreme Court of jurisdiction to hear the appeal. The Clerk of the Supreme Court shall refuse to file a notice of appeal or a memorandum in support of jurisdiction that is tendered for filing after this time period has passed.”
{¶ 22} This rule does not provide a tolling provision similar to that in
{¶ 23} Therefore, given the inapplicability of
{¶ 24} Based on the foregoing, we reverse the judgment of the court of appeals and remand the cause to that court to reissue its April 18 judgment with the appropriate service of notice.
Judgment reversed and cause remanded.