THIRD FEDERAL SAVINGS & LOAN ASSN., Aрpellee v. JOHN HAUPT, et al., Defendants, IRENE JARMOSZUK-HAUPT, Appellant
C.A. No. 12CA010306
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF LORAIN
Dated: February 3, 2014
2014-Ohio-348
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 11CV173291
{¶1} Appellant Irene Jarmoszuk-Haupt appeals the judgment of the Lorain County Court of Common Pleas. This Court reverses and remands.
I.
{¶2} Appellee Third Federal Savings & Loan Association of Cleveland filed a complaint for money due and foreclosure against John Haupt and Irene Jarmoszuk-Haupt. The Haupts were divorced at the time of the filing of the complaint. Ms. Haupt filed a separate answer and counterclaim for breach of cоntract.1 Third Federal replied to the counterclaim. Third Federal subsequently moved for partial judgment on the pleadings pursuant to
{¶3} Third Federal moved for summary judgment on its complaint and Ms. Haupt‘s counterclaim. Ms. Haupt responded in opposition, and Third Federal replied. The matter was submitted and heard by the magistrate, whо issued a decision on October 4, 2012. On the same day, the trial court issued a judgment, adopting the magistrate‘s decision “attached []to and incorporated [t]herein.” The clerk of court issued a notice pursuant to
{¶4} Ms. Haupt did not file objections to the magistrate‘s decision. Instead, she filed a notice of appeal on November 8, 2012. She raises one assignment of error for review.
{¶5} As a preliminary matter, Third Federal has moved to dismiss Ms. Haupt‘s appeal as untimely. The institution argues that Ms. Haupt failed to timely file her notice of appeal pursuant to
{¶6}
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 period in Rule 58(B) of the Ohio Rules of Civil Procedure.
{¶7}
In computing any period of time prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designаted period of time begins to run shall
not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a lеgal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. When a public office in which an act, required by law, rule, or order of court, is to be performed is closed to the public for the entire day which constitutes the last day for doing such an act, or before its usual closing time on such day, then such act may be performed on the next succeeding day which is not а Saturday, a Sunday, or a legal holiday.
{¶8}
{¶9} This Court acknowledges that the judgment was entered on Thursday, October 4, 2012. Monday, Oсtober 8, 2012, was Columbus Day, a legal holiday. The clerk‘s office mailed the notice of judgment on October 9, 2012. Accordingly, service of the trial court‘s judgment was technically made within three days of the entry of judgment. It would appear, thereforе, that the time for appeal began to run as of the date of the judgment, October 4, 2012, rendering Ms. Haupt‘s November 8, 2012 notice of appeal untimely. Nevertheless, this Court declines to apply the time computation directives of
{¶10} The purpose of the Ohio Civil Rules of Procedure is to guide the courts to effect justice.
{¶11} In this case, although the judgment was entered on October 4, 2012, the clerk did not mail notice of the judgment until October 9, 2012. The parties would not have received the mailed notice until after that date. Applying
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN VIOLATION OF APPELLANT‘S DUE PROCESS RIGHTS BY ADOPTING THE MAGISTRATE‘S DECISION GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE.
{¶12} Ms. Haupt argues that she was deprived of her right to due process when she was not served with the magistrate‘s decision granting summary judgment in favor of Third Fedеral, thereby foreclosing her opportunity to file objections and preserve her right to raise such issues on appeal. This Court agrees.
{¶13}
A magistrate‘s decision shall be in writing, identified as a magistrate‘s decision in the caption, signed by the magistrate, filed with the clerk, and served by the clerk on all parties or their attorneys no later than three days after the decision is filed. A magistrate‘s decision shall indicate conspicuously that a party shall not assign as error on appeal the court‘s adoption of any factual finding or lеgal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii) , unless the party timely and specifically objects to that factual finding or legal conclusion as required byCiv.R. 53(D)(3)(b) .
(Emphasis added.) This Court has repeatedly recognized that “[t]he clear import of [current
{¶14} This Court agrees with Ms. Haupt that she was deprived of a meaningful opportunity to object to the magistrate‘s decision, and that the resulting prejudice mandates reversal and remand.
{¶15} The trial court‘s judgment stated in pertinent рart: “By separate and distinct instrument, the Court adopts the Magistrate‘s Decision – Findings of Facts and Conclusions of Law attached hereto and incorporated herein.” In this case, the magistrate‘s decision was journalized separately from the trial court‘s judgment. The magistrate‘s decision was not stapled or otherwise affixed to the trial court‘s judgment. In addition, there was only one copy of the magistrate‘s October 4, 2012 decision in the record. This is in stark contrast to the recоrd evidencing the magistrate‘s and trial court‘s disposition of Third Federal‘s motion for judgment on the pleadings. As to that matter, the magistrate‘s decision was journalized on June 8, 2012, and was present in the record. The trial court, “[b]y separate and distinct instrumеnt,” adopted the magistrate‘s decision “attached hereto and incorporated herein.” A copy of the June 8, 2012
{¶16} The clerk of court‘s
III.
{¶17} Ms. Haupt‘s sole assignment of error is sustained. The judgment of the Lorain County Court of Common Pleas is reversed and the cause remanded for further proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
We order that a special mandate issuе out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
MOORE, P. J. CONCURS.
HENSAL, J. DISSENTING.
{¶18} I respectfully dissent. I do not believe that this Court has jurisdiction to address Ms. Haupt‘s arguments as her notice of appeal was untimely. Accordingly, I would grant Third Federal‘s motion to dismiss.
{¶19} Apрellate Rule 4(A) provides that the notice of appeal of a trial court decision must be filed with this Court within 30 days from the date of the judgment entry “or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the
APPEARANCES:
GARY COOK and MICHAEL ATEN, Attorneys at Law, for Appellant.
JASON K. WRIGHT, Attorney at Law, for Appellee.