Opinion
No. 88-1105
Submitted September 20, 1988 —
Decided December 14, 1988.
Elections — Appellate procedure — Appeal from order of court not timely, when — Motion for reconsideration does not extend time for filing notice of appeal.
APPEAL from the Court of Appeals for Adams County, No. 475.
Relator-appellant, Ray A. Pendell, filed this mandamus action in the Court of Appeals for Adams County on April 1, 1988. His complaint sought an order directing respondent-appellee, the Adams County Board of Elections, to certify him as a candidate for Adams County Sheriff in the primary election to be held in May 1988. The complaint further requested that respondents-appellees, John L. Franklin, Robert D. Johnston, and William A. Justice, be disqualified as candidates because they had not been subjected to the fingerprint file checks required by R.C. 311.01 (qualifications for sheriff). Also named in the complaint were Secretary of State Sherrod Brown and Elmer Spencer, the Adams County Common Pleas court judge who was to oversee the candidates' fingerprinting under R.C. 311.01 (B)(6), and with whom the candidates' residence and employment histories were to be filed under R.C. 311.01 (B)(7).
To be eligible to run for sheriff in 1988, candidates must possess the qualifications set forth in R.C. 311.01(B)(1) through (7). Appellant alleges that he met all the applicable criteria except one: he had not resided in Adams County for the year prior to seeking the office as required by R.C. 311.01(B)(2). R.C. 311.01(C), however, essentially provides that if none of the candidates for sheriff satisfies all seven criteria, the residency requirement may be waived such that a candidates who otherwise qualifies may be considered to have met the statute's prerequisites. According to appellant, no other candidate satisfied R.C. 311.01(B)(1) through (7). As a result, appellant maintained that he was to be considered an eligible candidate for the nomination at issue.
Pursuant to R.C. 311.01(B)(6) and (7), Judge Spencer forwarded his fingerprint findings and "original information" relating to appellant's qualifications to the board of elections on February 18, 1988. Included with this material, however, was a letter in which the judge expressed his opinion that appellant had not met the residency requirement of R.C. 311.01(B)(2) and, therefore, that appellant did not qualify as a candidate for sheriff. Although R.C. 3501.11(K) requires the board to review, examine and certify the sufficiency and validity of petitions and nomination papers, appellant was advised by a February 23, 1988 letter from the board that his petition had been ruled invalid because he was not "certified" by Judge Spencer. Neither Judge Spencer's letter nor the board mentioned R.C. 311.01(C).
On April 6, 1988, the court of appeals dismissed both of appellant's claims for relief sua sponte. The court dispensed with appellant's request for disqualification of the other certified candidates by holding that appellant had another adequate legal remedy by virtue of R.C. 3513.05 (elector protest against declarations of candidacy). Relying on State, ex rel. Ford, v. Bd. of Elections (1958), 167 Ohio St. 449, 5 O.O. 2d 141, 150 N.E.2d 43, the court refused to order appellant certified because the board of elections' decision was final, unless it was alleged to be arbitrary or capricious' appellant's complaint had not specifically made this averment.
Appellant did not immediately appeal the April 6 order. Instead, he filed an application for reconsideration two days later. He also filed a motion for leave to amend his complaint on April 8, 1988, despite the court's having already dismissed the action. Both requests were denied on May 19, 1988, after the primary election had been held.
Appellant appeals this decision pursuant to notice filed in the court of appeals on May 31, 1988.
Chacksfield Cooper and Roger R. Chacksfield, for appellant.
Wilson, Wilson Wilson and David D. Wilson, for appellee John L. Franklin.
Michael P. Kelly, for appellee William A. Justice.
Anthony J. Celebrezze, Jr., attorney general, and Catherine M. Cola, for appellee Secretary of State.
In his first proposition of law, appellant argues that his complaint stated claims in mandamus and that the court of appeals erred in dismissing them sua sponte. In his second, he contends that the board disregarded applicable law and abused its discretion by relying on Judge Spencer's report to reject appellant's nomination papers. It may well be that appellant was wrongly denied a place on the May 1988 primary ballot and that the court of appeals erred by dismissing his action summarily. However, because his appeal was not properly perfected, this court has no jurisdiction to consider these issues.
Pursuant to App. R. 3(A) and 4(A), notice of an appeal as of right must be filed with the clerk of the trial court within thirty days of the judgment or final order from which the appeal is taken. Exercising the original jurisdiction granted in Section 3, Article IV of the Ohio Constitution, the court of appeals dismissed appellant's mandamus claims on April 6, 1988. However, appellant did not file his notice of appeal below until May 31, 1988. Where a notice of appeal is not filed within the time prescribed by law, the reviewing court is without jurisdiction to consider issues that should have been raised in the appeal. See State, ex rel. Curran, v. Brookes (1943), 142 Ohio St. 107, 26 O.O. 287, 50 N.E.2d 995, paragraph seven of the syllabus; Adkins v. Eitel (1966), 8 Ohio St.2d 10, 37 O.O. 2d 300, 221 N.E.2d 713. Inasmuch as appellant failed to file his appeal by May 6, 1988, this court is without authority to resolve whether the lower court erred in summarily dismissing his action.
The parties make no mention of this jurisdictional flaw, perhaps because the notice of appeal was filed within thirty days of the May 19, 1988 entry denying reconsideration and leave to amend. However, this court has said that a request for reconsideration in the trial court is "a nullity" and "a legal fiction" which does not suspend the time for filing a notice of appeal. Pitts v. Dept. of Transportation (1981), 67 Ohio St.2d 378, 379-381, 21 O.O. 3d 238, 239-240, 423 N.E.2d 1105, 1106-1107. Indeed, any judgment or final order that results from such a motion is a nullity itself. Id. at 381, 21 O.O. 3d at 240, 423 N.E.2d at 1107.
App. R. 26 does permit the filing of an application for reconsideration either before an order in an appellate matter is journalized or within ten days of the decision's announcement. However, that rule is not applicable to these proceedings. In State, ex rel. Pajestka, v. Faulhaber (1977), 50 Ohio St.2d 41, 42, 4 O.O. 3d 113, 113-114, 362 N.E.2d 263, 263-264, this court explained:
"In the instant cause, appellants brought a mandamus action in the Court of Appeals, invoking that court's original jurisdiction granted in Section 3, Artcile [ sic, Article] IV of the Ohio Constitution. Thus the appellants mistakenly attempted to file a motion not prescribed for a court having original jurisdiction.
"The proper remedy for appellants in this situation is to file a motion for relief from judgment under Civ. R. 60(B)(5). This rule provides that a party may obtain relief from the final judgment, order or proceeding of a court for any reason justifying relief from the judgment, provided that such motion is made `within a reasonable time period.'
"Since the appellants improperly requested relief from the order of the Court of Appeals, this court affirms the action of that court in overruling the appellants' motion for reconsideration."
The preceding authority makes it plain that this court cannot consider appellant's first and second propositions of law because no timely appeal was taken from the order of dismissal he challenges. Moreover, it is clear that the appellate court did not err on May 19, 1988, by refusing to reconsider its earlier decision (the entry from which this appeal is taken) because the request was improper. Similarly, the court of appeals did not err in denying appellant leave to amend his complaint since Civ. R. 15 makes no provision for granting such a request after an action's dismissal.
Even if we were able to review the court of appeals' sua sponte dismissal and we were convinced that the trial court erred in denying appellant's subsequent motions, we still would not reverse and remand this matter per appellant's request. Rather, in that instance, we would be forced to dismiss the action as moot because the May 1988 primary is over. State, ex rel. Santora, v. Bd. of Elections (1962), 174 Ohio St. 11, 21 O.O. 2d 35, 185 N.E.2d 438. In Santora, the relator filed a mandamus action that sought to compel the placement of his name on the ballot in an upcoming primary election. The court of appeals denied the writ prior to the election. On appeal, this court held that the case was moot because the election had been completed. Accord Maranze v. Bd. of Elections (1958), 167 Ohio St. 323, 4 O.O. 2d 401, 148 N.E.2d 229; State, ex rel. Patrick, v. Bd. of Elections (1962), 174 Ohio St. 12, 21 O.O. 2d 36, 185 N.E.2d 433; State, ex rel. Keller, v. Loney (1959), 169 Ohio St. 394, 8 O.O. 2d 420, 159 N.E.2d 896.
Accordingly, the court of appeals' decision is hereby affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, WRIGHT and H. BROWN, JJ., concur.
DOUGLAS, J., concurs in judgment only.