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In Moldovan, we concluded that notice by publication did not provide reasonable notice of an appealable order, as required by Section 16, Article I of the Ohio Constitution.
Summary of this case from Rothman v. RothmanOpinion
No. 85-1619
Decided August 13, 1986.
Appellate procedure — Failure of trial court to serve notice of its final appealable order on appellant or attorney frustrates the purposes of law and justice, when — Publication in legal newspaper is not reasonable notice of judgment when party's name and address are known — Section 16, Article I, Ohio Constitution.
APPEAL from the Court of Appeals for Cuyahoga County.
Effective October 29, 1982, appellant, Suzanne Moldovan, was removed from her job with appellee, Cuyahoga County Welfare Department. Moldovan appealed her dismissal to the State Personnel Board of Review ("board"). In April 1983, the board issued an order modifying the welfare department's decision to terminate appellant's employment. The board ordered that appellant be reinstated to her job, but suspended from work for five days without pay. The welfare department's counsel, the Cuyahoga County Prosecutor, appealed the board's decision to the Court of Common Pleas of Cuyahoga County. Various proceedings took place in the trial court and appellant's counsel in that court, Sandra Mendel, Associate General Counsel of the American Federation of State, County Municipal Employees whose office was, and is, in Franklin County, Ohio, asserts that she received a letter from the trial judge on July 8, 1985 stating that the court would "* * * render a decision within the next several days." One day later, on July 9, 1985, the court entered final judgment reversing the board and reinstating the welfare department's decision to terminate appellant's employment. Appellee claims that a copy of the judgment was published in the July 10, 1985 edition of the Daily Legal News, the official newspaper of the General Division of the Court of Common Pleas of Cuyahoga County. Mendel said she did not learn of the July 9, 1985 judgment entry until August 12, 1985, when she had a phone conversation with an assistant Cuyahoga County prosecutor about a matter that is unrelated to this case. Mendel said that in the context of that discussion, "* * * I asked, did he know who in his office had the Moldovan case, as the former Assistant Prosecuting Attorney assigned to it was no longer with the Prosecutor's office. He stated that he thought it had been decided. This conversation occurred on 8-12-85. I spoke to him again on 8-13-85. He confirmed that an entry had been filed. I appealed the entry the next day, August 14, 1985."
Mendel's claims were made in an affidavit which she filed in the appellate court. Nothing appears in the record disputing Mendel's assertions.
Loc. R. 19(A) of the Court of Common Pleas of Cuyahoga County, General Division, states in part:
"The court shall approve a journal entry deemed by it to be proper, sign the same and cause it to be filed with the Clerk, and notice of the filing of each journal entry for journalization shall, on the day following such filing, be published in the Daily Legal News." See, also, Loc. R. 14(A).
Attorney Mendel did, in fact, file a notice of appeal on August 14, 1985 which was thirty-six days after the trial court had entered its judgment. The court of appeals dismissed the appeal "* * * sua sponte for failure to timely file [the] notice of appeal in accordance with Appellate Rule 4(A)." On September 13, 1985, the appellate court denied appellant's motion for reconsideration. The court noted it had no jurisdiction to consider an appeal that was not filed within the thirty-day time limit prescribed by App. R. 4(A).
The matter is now before this court pursuant to the allowance of a motion to certify the record.
Sandra Mendel, Ronald H. Janetzke and Robert Weinberger, for appellant.
John T. Corrigan, prosecuting attorney, Richard A. Hoenigman and Jeffrey I. Sherwin, for appellee.
The sole question before us is whether failure of the common pleas court to serve notice of its final appealable order on appellant or her attorney, whose names and addresses were known, frustrates the purposes of law and justice. We find that it does, and reverse the appellate court's judgment.
Every litigant in Ohio is entitled to "[a]n appeal as of right * * * by filing a notice of appeal * * * within the time allowed * * *." App. R. 3(A). The notice of appeal "* * * shall designate the judgment, order or part thereof appealed from * * *." App. R. 3(C). App. R. 4(A) requires that civil appeals be filed within thirty days from the entry of the judgment appealed. The timely filing of a notice of appeal is a prerequisite to a civil appeal as of right. Bosco v. Euclid (1974), 38 Ohio App.2d 40, 42-43 [67 O.O.2d 209].
In the case sub judice, appellant claims she had no meaningful notice of the trial court's final appealable order and that this lack of meaningful notice caused her appeal to be untimely. It is well-established that every injured party "shall have remedy by due course of law, and shall have justice administered without denial or delay." Section 16, Article I, Ohio Constitution. The opportunity to file a timely appeal pursuant to App. R. 4(A) is rendered meaningless when reasonable notice of an appealable order is not given. Although appellee asserts that the legal newspaper printed that judgment had been rendered, this does not constitute reasonable notice on a party whose name and address were known. See Mullane v. Central Hanover Bank Trust Co. (1950), 339 U.S. 306, 315, where the court wrote that: "Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed." See, also, New York v. New York, N.H. H. RR. Co. (1953), 344 U.S. 293, 296, where the court pointed out that "[n]otice by publication is a poor and sometimes a hopeless substitute for actual service of notice. * * *"
The federal government has recognized the harm to principles of justice and fairness that is caused by lack of notice of final appealable orders and has promulgated Fed.R.Civ.P. 77(d) to remedy this situation. It provides:
"Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure."
Ohio has no comparable rule, and trial courts occasionally fail to provide interested litigants with reasonable notice of the courts' appealable orders. That is what happened in the case at bar. It would be highly impractical, indeed injudicious, to pretend that the claimed publication of the trial court's judgment in a Cuyahoga County newspaper was reasonably calculated, under all the circumstances, to apprise appellant, or her Franklin County lawyer, that final judgment had been entered and that the time to file an appeal was running. Notice by publication is generally inappropriate except where the address of the party to be served is unknown, and even then the use of this method is carefully circumscribed. See Civ. R. 4.4.
We feel that, in the interests of justice and fairness, Ohio should have a rule similar to Fed.R.Civ.P. 77(d) to prevent the kind of situation illustrated by the case at bar. Until the time of the promulgation of a new rule, we find that failure to give reasonable notice of final appealable orders is a denial of the right to legal redress of injuries created by Section 16, Article I of the Ohio Constitution in all pending and future cases. Under the facts and circumstances of the case sub judice, reasonable notice was not given.
We find the case of Americare Corp. v. Misenko (1984), 10 Ohio St.3d 132, inapposite. There we merely rejected appellants' argument that due process entitled a party to receive actual notice of a trial court decision in order to perfect a timely appeal. We decide only that failure to give reasonable notice renders Section 16, Article I of the Ohio Constitution and App. R. 4 meaningless.
Accordingly, the judgment of the court of appeals denying jurisdiction is reversed. Appellant is hereby given thirty days from the date of this judgment to appeal the trial court's decision by filing a proper notice of appeal.
Judgment reversed.
CELEBREZZE, C.J., SWEENEY, HOLMES, C. BROWN and DOUGLAS, JJ., concur.
LOCHER and WRIGHT, JJ., concur in judgment only.