Lashley v. Cafaro Co., Unpublished Decision (4-25-2005) , 2005 Ohio 1897 ( 2005 )

MEMORANDUM OPINION {¶ 1} On March 3, 2005, appellant, Marilyn Lashley, filed a notice of appeal from a January 28, 2005 judgment of the Trumbull County Court of Common Pleas. Thus, appellant's notice of appeal was filed thirty-four days after the judgment had been issued by the trial court. On March 18, 2005, appellee, The Cafaro Company, filed a motion to dismiss this appeal as untimely.

{¶ 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 the Noticeof 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, appellant has not complied with the thirty-day rule set forth in App.R. 4(A) nor has she alleged that there was 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, appellee's motion to dismiss is hereby granted and this appeal is dismissed pursuant to App.R. 4(A).

{¶ 8} Appeal dismissed.

O'Neill, J., Grendell, J., concur.