Roose v. Maynard

SUPREME COURT CASES

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Roose v. Maynard

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-2998

Case Date: 06/17/2011

Plaintiff: Roose

Defendant: Maynard

Preview:[Cite as Roose v. Maynard, 2011-Ohio-2998.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
DAVID D. ROOSE,                                                                                :                                                                             MEMORANDUM OPINION
Plaintiff-Appellee,                                                                            :
                                                                                                                                                                             CASE NO. 2011-T-0046
- vs -                                                                                         :
JASON MAYNARD, et al.,                                                                         :
Defendants-Appellants.                                                                         :
Civil Appeal from the Trumbull County Eastern District Court, Case No.  2011 CVG
00008E.
Judgment: Appeal dismissed.
David  D.  Roose,  pro  se,  6996  Tamarack  Drive,  Hubbard,  OH                              44425  (Plaintiff-
Appellee).
Jason  Maynard  and  Melissa  Miller-Cole,  pro  se,  20  Church  Street,  Hubbard,  OH
44425 (Defendants-Appellants).
THOMAS R. WRIGHT, J.
{¶1}   On April 21, 2011, appellants, Jason Maynard and Melissa Miller-Cole, pro
se, filed a notice of appeal from a March 21, 2011 entry of the Trumbull County Eastern
District Court.
{¶2}   The notice of appeal was due on Wednesday, April 20, 2011, 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}   In the instant matter, appellants have 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; See, also, App.R. 14(B).
                                                                                                   {¶7}   Accordingly,  this  appeal is  dismissed,  sua sponte,  pursuant to App.R.
4(A).
{¶8}   Appeal dismissed.
DIANE V. GRENDELL, J.,
MARY JANE TRAPP, J.,
concur.
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