Rutushin v. Arditi , 2013 Ohio 1427 ( 2013 )


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  • [Cite as Rutushin v. Arditi, 
    2013-Ohio-1427
    .]
    STATE OF OHIO, MAHONING COUNTY
    IN THE COURT OF APPEALS
    SEVENTH DISTRICT
    PATRICIA RUTUSHIN,                              )
    )   CASE NO. 12 MA 114
    PLAINTIFF-APPELLEE,                     )
    )
    - VS -                                  )         OPINION
    )
    LINDA ARDITI,                                   )
    )
    DEFENDANT-APPELLANT.                    )
    CHARACTER OF PROCEEDINGS:                           Civil Appeal from County Court
    Area No. 2, Case No. 11 CVG 1087.
    JUDGMENT:                                           Dismissed.
    APPEARANCES:
    For Plaintiff-Appellee:                             Attorney Matthew Giannini
    1040 South Commons Place
    Suite 200
    Youngstown, OH 44514
    For Defendant-Appellant:                            Linda Arditi, Pro-se
    1997 Wolosyn Circle, Apt. 5
    Youngstown, OH 44514
    JUDGES:
    Hon. Mary DeGenaro
    Hon. Gene Donofrio
    Hon. Joseph J. Vukovich
    Dated: March 26, 2013
    [Cite as Rutushin v. Arditi, 
    2013-Ohio-1427
    .]
    DeGenaro, P.J.
    {¶1}     Pro-se Defendant-Appellant Linda Arditi appeals a judgment by the
    Mahoning County Court Area No. 2 in favor of Plaintiff-Appellee Patricia Rutushin, in an
    action for forcible entry and detainer and money damages. However, this appeal was
    untimely filed and we are without jurisdiction to address the merits. Accordingly, this
    appeal is dismissed.
    Facts and Procedural History
    {¶2}     On November 21, 2011, Rutushin filed a complaint against Arditi for forcible
    entry and detainer with a second cause of action for unpaid rent, late fees and property
    damages. The complaint alleged that Arditi had entered into a written agreement to lease
    a Boardman Township apartment from Rutushin and that Arditi had breached the lease
    by failing to pay rent as agreed. Rutushin served Arditi with a 3-day written notice to
    vacate the premises on November 5, 2011, a copy of which was attached to the
    complaint. Arditi was served with the complaint via residence service when a Boardman
    Police Officer posted the summons on the front door of Arditi's apartment residence.
    {¶3}     On November 30, 2011, Arditi filed a motion to continue the hearing on the
    forcible entry and detainer claim, which was sustained and reset for December 19, 2011.
    Rutushin appeared with counsel and Arditi failed to appear. Apparently there was some
    confusion over a motion for continuance that had been filed on December 16, 2011 by
    someone purporting to be Rutushin or acting on Rutushin's behalf. As a result, the
    hearing on the eviction claim did not go forward and the trial court issued a judgment
    entry on January 20, 2011 stating in relevant part:
    An unsigned motion for continuance was filed 12/16/11. Though the clerk
    may have thought the same was filed on behalf of the Plaintiff, Plaintiff
    denied same and was present with counsel and prepared to proceed.
    However, to the extent that the public access website appeared to reflect
    such motion for continuance as being granted, which was not done, a
    continuance is needed.
    {¶4}     Thus, the trial court continued the hearing until January 9, 2012 at 11:00
    -2-
    a.m. On January 5, 2012, Arditi filed a motion to continue the hearing. On January 9,
    2012, Rutushin appeared for the hearing along with counsel, but Arditi failed to appear.
    The magistrate denied Arditi's January 5 motion to continue as untimely and proceeded to
    take testimony from witnesses. As a result of the hearing, Rutushin was granted a writ of
    possession of the premises. Hearing on damages was continued until March 26, 2012.
    {¶5}   On January 23, 2012, Arditi filed objections to the magistrate's January 10,
    2012 decision granting the writ of possession, which were overruled by the trial court on
    January 31, 2012.
    {¶6}   On March 20, 2012, Arditi filed a motion which requested dismissal of the
    damages claim and/or continuance of the hearing. In a March 21, 2012 decision, which
    included findings of fact and conclusions of law, the magistrate denied Arditi's motion to
    dismiss and motion for continuance. The magistrate further noted that though Arditi had
    made a practice of facsimile filing, the same would not be permitted in the future as there
    was no provision allowing it in the local rules. The trial court issued a judgment entry on
    April 17, 2012 finding that no written objections had been timely filed and no error or other
    defect appeared on the face of the decision and therefore adopted the March 21, 2012
    magistrate's decision as its own.
    {¶7}   In the meantime, the case proceeded to a hearing on the damages claim as
    scheduled on March 26, 2012. Rutushin appeared with counsel and presented evidence
    of damages. Arditi failed to appear. In the resulting decision, the magistrate stated:
    The Plaintiff presented evidence and exhibits through Adam
    Rutushin, Plaintiff's spouse and property manager.            Unpaid rent is
    $2500.00. See Plaintiff's Exhibit 1. Late charges are permitted at $75.00
    per month. Charges for personal property removal and cleaning (Plaintiff's
    Exhibit 2) total $438.00. An advertising bill (Plaintiff's Exhibit 3) was
    submitted in the amount of $268.11. Total loss of rent, late charges and
    damages, after credit for a security deposit, are $2,909.16.
    The court grants judgment for the Plaintiff and against the Defendant
    -3-
    in the amount of $2,909.16 plus court costs and interest at the statutory
    rate for the date of judgment on the second cause of action.
    {¶8}     The Magistrate's April 3, 2012 decision on the damages claim was adopted
    by the trial court on April 24, 2012. The docket reveals that on April 25, 2012, Arditi
    attempted to file by facsimile transmission, objections to the magistrate's April 3, 2012
    decision on the second cause of action. However, the court did not consider them since
    they were untimely and because the court had previously warned Arditi that facsimile
    filings would not be permitted.
    {¶9}     On May 7, 2012, there is a docket entry stating: "Received faxed copy of
    notice of appeal with poverty affidavit from Defendant Linda Arditi." On June 7, 2012,
    there is a docket entry stating: "Received faxed copy of notice of appeal that Linda Arditi
    presented to court of appeals.      (Still no original has been presented to court for
    processing.)"
    {¶10} On June 7, 2012, the trial court issued a judgment stating as follows:
    Matter before the court to procedurally review the Defendant's
    attempted filing of a notice of appeal. The Defendant forwarded for filing a
    faxed copy of a notice of appeal which the clerk accepted and docketed on
    5/7/12.    No original notice of appeal bearing the Defendant's original
    signature was submitted to the clerk. The Defendant apparently then
    attempted to file a notice of appeal directly with the 7th District Court of
    Appeals which documents were in turn forwarded to this Court. Again, the
    documents forwarded do not bear the original signature of the Defendant.
    The Defendant was previously advised by the Magistrate's Decision dated
    3/21/12, and adopted as a judgment entry of Court dated 4/17/12 that faxed
    copies of pleadings would not be accepted.
    The Defendant is advised that she is to file an original notice of
    appeal bearing an original signature. The Court will then consider whether
    the original filing should be deemed to relate back to the facsimile filing
    -4-
    date so as to preserve the applicable time requirements for filing an appeal.
    {¶11} On June 18, 2012, Arditi filed a paper copy of her notice of appeal, with
    original signatures. The notice of appeal and docketing statement states that Arditi is
    appealing an April 17, 2012 "final order" of the trial court.
    Timeliness/Final Appealable Order Issues
    {¶12} This court is jurisdictionally barred from addressing the merits of Arditi's
    arguments because the April 17, 2012 order listed on her notice of appeal was not a final
    order; and even if it were liberally construed to be pertaining to the later final order of April
    24, 2012, Arditi's appeal was untimely filed.
    {¶13} With regard to the first issue, Arditi identifies an April 17, 2012 judgment in
    her notice of appeal. In that judgment, the trial court adopted a magistrate's decision
    denying Arditi's motion to dismiss and/or to continue the hearing on the damages claim.
    As noted in the magistrate’s decision and adopted by the trial court, although Arditi cited
    to Civ.R. 60(A) and (B) in her motion, those provisions do not apply; Ardidi's motion was a
    Civ.R. 12(B)(6) motion.
    {¶14} " 'It is well-established that an order must be final before it can be reviewed
    by an appellate court. If an order is not final, then an appellate court has no jurisdiction.' "
    Hubbell v. City of Xenia, 
    115 Ohio St.3d 77
    , 
    2007-Ohio-4839
    , 
    873 N.E.2d 878
    , ¶9,
    quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 
    44 Ohio St.3d 17
    , 20, 
    540 N.E.2d 266
    (1989). Generally, denial of a motion to dismiss is not a final appealable order. Polikoff
    v. Adam, 
    67 Ohio St.3d 100
    , 103, 
    616 N.E.2d 213
     (1993); R.C. 2505.02.
    {¶15} The trial court did issue a final appealable order on April 24, 2012 granting
    Rutushin judgment and awarded money damages. But even if Arditi's notice of appeal
    was liberally construed as premature and relating to the April 24, 2012 judgment, her
    appeal is untimely.
    {¶16} App.R. 3(A), provides "[a]n appeal as of right shall be taken by filing a notice
    of appeal with the clerk of the trial court within the time allowed by Rule 4." App.R. 4(A)
    provides: "[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
    -5-
    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."
    {¶17} As indicated on the trial court's docket, notice of the April 24 final judgment
    was sent out to the parties within the three-day period. Arditi first attempted to file a
    notice of appeal on May 7, 2012 but the trial court clerk did not accept it since it was filed
    by fax and did not contain Arditi's original signature. Arditi then properly filed a paper
    notice of appeal on June 18, 2012, well over 30 days after both the April 17, 2012 and the
    April 24, 2012 judgments.
    {¶18} The trial court clerk properly rejected Arditi's earlier attempts to perfect the
    appeal by facsimile filing. In Louden v. A.O. Smith Corp., 
    121 Ohio St.3d 95
    , 2009-Ohio-
    319, 
    902 N.E.2d 458
    , the Supreme Court of Ohio held that "filing an appeal requires an
    appellant to present a paper copy of the notice of appeal to the clerk of the trial court,
    unless a [local] rule of appellate procedure expressly permits the notice of appeal to be
    filed electronically." Id. at ¶1; see, also, App.R. 3(A). Otherwise, the electronically filed
    notice of appeal is "invalid." Louden at ¶33. There is no local rule of the Seventh District
    Court of Appeals authorizing electronic or facsimile filing. Thus, Arditi's appeal was not
    perfected until she filed a paper copy with the clerk's office on June 18, 2012, well after
    the 30-day time limit for filing a notice of appeal from the April 24, 2012 judgment.
    {¶19} In conclusion, this appeal is untimely, having been filed more than 30 days
    after the April 24, 2012 final appealable order. Further, Arditi identified a non-final April
    17, 2012 judgment on her notice of appeal, which warrants dismissal as well.
    Accordingly, this appeal is dismissed.
    Donofrio, J., concurs.
    Vukovich, J., concurs.
    

Document Info

Docket Number: 12 MA 114

Citation Numbers: 2013 Ohio 1427

Judges: DeGenaro

Filed Date: 3/26/2013

Precedential Status: Precedential

Modified Date: 3/3/2016