Vizzini v. Nichols, 2003 Ohio 6225

MEMORANDUM OPINION {¶ 1} On July 25, 2003, appellants, Diane Nichols and Keith Reed, filed a notice of appeal from an April 10, 2003 judgment of the Portage County Municipal Court Ravenna Division. Thus, appellant's notice of appeal was filed over three months after the judgment had been issued by the trial court.

{¶ 2} App.R. 4(A) states:

{¶ 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 period in Rule 58(B) of the Ohio Rules of Civil Procedure."

{¶ 4} Loc.R. 5(C) 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 theNotice 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} In the present case, appellants have not complied with the thirty-day rule set forth in App.R. 4(A) nor have appellants 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} As an aside, we note that on the notice of appeal, appellant, Diane Nichols, acting pro se, indicated that she was representing herself as well as appellant, Keith Reed. For future reference, it is well established that a layperson can only represent themself on appeal, and not another party. However, this deficiency is moot in light of the untimeliness of the appeal

{¶ 9} The appeal is dismissed.

Appeal dismissed.

DONALD R. FORD. P.J., and WILLIAM M. O'NEILL, J., concur.

Case Details

Case Name: Vizzini v. Nichols

Court Name: Ohio Court of Appeals

Date Published: Nov 21, 2003

Citations: 2003 Ohio 6225; Case No. 2003-P-0085.

Docket Number: Case No. 2003-P-0085.

Court Abbreviation: Ohio Ct. App.