Stewart v. Gillie , 2017 Ohio 4088 ( 2017 )

[Cite as Stewart v. Gillie, 2017-Ohio-4088.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Darin T. Stewart, :
Plaintiff-Appellant, :
No. 16AP-859
v. : (C.P.C. No. 15CV-10183)
Judge William T. Gillie et al., : (ACCELERATED CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on June 1, 2017
On brief: Darin T. Stewart, pro se.
On brief: Ron O'Brien, Prosecuting Attorney, and
Benjamin D. Humphrey, for appellees.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Plaintiff-appellant, Darin T. Stewart, appeals from a judgment of the
Franklin County Court of Common Pleas that granted summary judgment in this matter
in favor of defendants-appellees, Judge William T. Gillie (now deceased) and Michael
Miller. Because Stewart did not file a timely notice of appeal, we dismiss his appeal for
lack of jurisdiction.
I. Factual and Procedural Background
{¶ 2} In 1988, a three-judge panel found Stewart guilty of murder and attempted
murder and sentenced him accordingly. This court affirmed those convictions. State v.
Stewart, 10th Dist. No. 88AP-132 (Dec. 6, 1988). This court also affirmed the denial of
No. 16AP-859 2
Stewart's petition for postconviction relief. State v. Stewart, 10th Dist. No. 91AP-1021
(Aug. 6, 1992).
{¶ 3} In 2015, Stewart filed this action for declaratory relief, seeking a declaration
that his convictions and sentences were void, presumably because he was convicted of
lesser-included offenses of the charges that he had been indicted for by the grand jury.
Appellees1 filed a motion for summary judgment, arguing that his claims were barred by
res judicata and would also fail on the merits. The trial court, in an entry filed
November 7, 2016, granted summary judgment in favor of appellees. Stewart filed a
notice of appeal from that entry on December 15, 2016.
II. The Appeal
{¶ 4} Stewart appeals the trial court's entry granting summary judgment in
appellees' favor. The state first argues that this appeal must be dismissed because Stewart
did not timely file his notice of appeal of that entry. We agree.
{¶ 5} App.R. 4(A)(1) provides that, subject to App.R. 4(A)(3), "a party who
wishes to appeal from an order that is final upon its entry shall file the notice of appeal
required by App.R. 3 within 30 days of that entry." App.R. 4(A)(3) provides that in a civil
case, "if the clerk has not completed service of the order within the three-day period
prescribed in Civ.R. 58(B), the 30-day periods referenced in App.R. 4(A)(1) and (A)(2)
begin to run on the date when the clerk actually completes services." Thus, in a civil case
such as the present one, if service of the notice of judgment and its entry occurs within
three days, then the appeal period begins on the date of the judgment. State ex rel.
Sautter v. Grey, 117 Ohio St.3d 465, 2008-Ohio-1444, ¶ 16, citing In re Anderson, 92 Ohio
St.3d 63, 67; Huntington Natl. Bank v. Zeune, 10th Dist. No. 08AP-1020, 2009-Ohio-
3482, ¶ 11. Failure to comply with App.R. 4(A) is a jurisdictional defect and is fatal to any
appeal. In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, ¶ 17; Bond v. Canal Winchester,
10th Dist. No. 07AP-556, 2008-Ohio-945, ¶ 11.
{¶ 6} Here, the trial court filed its entry on November 7, 2016 and instructed the
clerk of courts to serve the parties with the entry. Pursuant to Civ.R. 58(B), the clerk must
then serve the parties and note service on the docket within three days of entering the
1According to his complaint, Judge Gillie was the lead and sentencing judge of the three-judge panel and
Miller was the Franklin County prosecutor at that time.
No. 16AP-859 3
judgment upon the journal. The docket reflects that the clerk timely satisfied its
obligations. Therefore, Stewart's notice of appeal had to be filed within 30 days of the
final judgment entry. App.R. 4(A)(1). Stewart did not file his notice of appeal until
December 15, 2016–38 days after the November 7, 2016 entry. Thus, Stewart's notice of
appeal was untimely, and we must dismiss his appeal due to his noncompliance with
App.R. 4(A)(1). State v. Clayborn, 10th Dist. No. 08AP-593, 2009-Ohio-1751, ¶ 5.
III. Conclusion
{¶ 7} Because Stewart did not timely file his notice of appeal, we lack jurisdiction
to hear his appeal. Accordingly, we dismiss this appeal.
Appeal dismissed.
LUPER SCHUSTER and BRUNNER, JJ., concur.