Yu v. Ohio State Univ. Med. Ctr. v. Pacific Interpreters, Inc.

[Cite as Yu v. Ohio State Univ. Med. Ctr. v. Pacific Interpreters, Inc., 2018-Ohio-2958.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jianfeng Yu, :
Plaintiff-Appellant, :
v. :
The Ohio State University Medical : No. 17AP-850
Center, (Ct. of Cl. No. 2015-00001)
:
Defendant/Third-Party (REGULAR CALENDAR)
Plaintiff-Appellee, :
v. :
Pacific Interpreters, Inc., :
Third-Party Defendant- :
Appellee.
:
D E C I S I O N
Rendered on July 26, 2018
Robol Law Office, LLC, and Richard T. Robol, for appellant.
Michael DeWine, Attorney General, Jeffrey L. Maloon, and
Daniel R. Forsythe, for appellee The Ohio State University
Wexner Medical Center.
Gallagher Sharp LLP, Thomas J. Cabral, and Colleen A.
Mountcastle, for appellee Pacific Interpreters, Inc.
ON MOTION TO DISMISS
SADLER, J.
{¶ 1} Plaintiff-appellant, Jianfeng Yu, appeals from a judgment of the Court of
Claims of Ohio granting a motion for summary judgment filed by defendant/third-party
No. 17AP-850 2
plaintiff-appellee, The Ohio State University Wexner Medical Center ("OSUWMC").
OSUWMC and third-party defendant-appellee, Pacific Interpreters, Inc., have moved to
dismiss the appeal on the ground that appellant did not timely file his notice of appeal with
the clerk of the Court of Claims. The timeliness question turns on whether we must apply
a 5:00 p.m. cutoff time on the last permissible day for this filing or whether we may extend
the filing cutoff to midnight. The parties offer competing and irreconcilable rationales for
each position.
{¶ 2} App.R. 4(A) requires an appealing party in a civil case to file a notice of appeal
within 30 days of the entry of the judgment appealed from or within 30 days of service of
the notice of judgment if service of the notice of judgment is not made on the party within
the 3-day period provided in Civ.R. 58(B). Fougere v. Estate of Fougere, 10th Dist. No.
17AP-72, 2017-Ohio-7905, ¶ 11. App.R. 3(A) specifies that the notice of appeal shall be filed
"with the clerk of the trial court within the time allowed by Rule 4." Failure to comply with
the filing requirements of App.R. 3 and 4 is a jurisdictional defect that mandates dismissal
of the appeal. State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St. 3d 58, 60
(1988).
{¶ 3} The Court of Claims entered its judgment on October 27, 2017. Appellant
does not assert that the clerk failed to mail notice of the judgment to appellant within three
days. Pursuant to App.R. 4, appellant had 30 days from the date of the entry to file his
notice of appeal with the clerk of the trial court. Because the 30th day fell on a Sunday,
under the rules for computing time set forth in App.R. 14(A), the final day for timely filing
was Monday, November 27. On November 27, at 11:45 p.m., appellant attempted to file his
notice of appeal through the Court of Claims' electronic filing system. The Court of Claims'
electronic filing system logged this attempt to file but rejected it for failure to submit the
requisite filing fee. Appellant asserts this rejection was due to a technical malfunction in
the system and beyond his control. On the next day, appellant successfully filed his notice
of appeal, one day late, with the clerk of the Court of Claims.
{¶ 4} Appellees rely on the rules governing all filings by litigants in the Court of
Claims. They point out the Court of Claims, through an administrative rule promulgated
under Civ.R. 5(E), set a close-of-business cutoff time for filings submitted via the clerk's
electronic filing system:
No. 17AP-850 3
A document that passes Clerk Review will be deemed timely
filed when submitted prior to 4:59 p.m. Eastern Standard Time
on the due date, unless the Hearing Officer has ordered the
document filed by an earlier time on that date. All time is
calculated as Eastern Standard Time. Documents filed later
than 4:59 p.m. Eastern Standard Time shall be deemed to have
been filed the following business day.
L.C.C.R. eFiling Adm.R. VIII(B).
{¶ 5} Appellant responds that the local rules of the Franklin County Court of
Common Pleas control and that under those rules any filing before midnight on
November 27 was timely. To support this proposition, appellant argues that R.C. 2743.20,
governing appeals from the Court of Claims, states that such appeals shall be taken "under
the same circumstances, as appeals from the court of common pleas of Franklin county,
and the same rules of law govern."
{¶ 6} Appellant then points out the e-filing standing order of the Franklin County
Court of Common Pleas, General Division, provides that documents submitted to the clerk
via e-filing are considered filed on the day they are submitted electronically to the system,
so that documents filed at or before 11:59 p.m. are deemed filed on the day in question. E-
filing order of the Court of Common Pleas of Franklin County, General Division, Section
VIII(E) (effective Mar. 28, 2013).
{¶ 7} If, as appellant asserts, the local filing rules of the Franklin County Court of
Common Pleas govern his filing in the Court of Claims, his notice of appeal would be timely
if it was properly filed at 11:45 p.m. on the last day for filing.
{¶ 8} This court has already considered and rejected in another case the
interpretation proposed by appellant here. Tod v. Cincinnati State Technical &
Community College, 10th Dist. No. 10AP-656, 2011-Ohio-2743. Tod, which predated
widespread adoption of e-filing procedures, was also an appeal from the Court of Claims
and involved the comparable issue of facsimile filing. We held the Court of Claims, having
declined to adopt a rule permitting facsimile filings, was not required to docket an after-
hours notice of appeal filed by this means. Addressing the same reasoning that appellant
presents here, we noted R.C. 2743.20 does not provide that the actual notice of appeal will
be filed with the clerk of the court of common pleas. An inevitable corollary of this is that
No. 17AP-850 4
the rules and procedures of the clerk of the originating trial court must govern most aspects
of filing: "We do not construe R.C. 2743.20 to mean that the local rules promulgated by the
Franklin County Court of Common Pleas govern filing procedures in the Court of Claims of
Ohio." Id. at ¶ 91.
{¶ 9} Tod thus recognizes that it is impractical for this court to impose hours and
conditions for the filing of documents in a separately administered trial court. Even if the
advent of electronic filing systems may someday erase many of the functional constraints
particular to the different courts, procedural details must remain largely the domain of
clerks and administrators tasked with the day-to-day burdens of trial court operations. The
Tenth District currently accepts appeals from the three divisions of the Franklin County
Court of Common Pleas (each operating its own clerk's office), from the Franklin County
Municipal Court, from the Court of Claims, and from numerous administrative agencies.
Each of these is subject to different budgetary, technological, and staffing environments.
This court cannot reasonably impose uniformity by fiat.
{¶ 10} We acknowledge that our holding in this case must be reconciled with the
Supreme Court of Ohio's decision in Louden v. A.O. Smith Corp., 121 Ohio St. 3d 95, 2009-
Ohio-319. In that case, the Supreme Court ruled that the trial court could not accept a
notice of appeal that was submitted electronically, a means not approved by the appellate
court: "Although a notice of appeal is filed with the clerk of the trial court, it is the Rules of
Appellate Procedure that 'govern procedure in appeals to courts of appeals.' " (Emphasis
omitted.) Id. at ¶ 10, quoting App.R. 1(A). When considering Louden, one must note that
this court's own local rules provide for an 11:59 p.m. cutoff for electronic filing with the
appellate clerk. Loc.R. 1(G) of the Tenth Appellate District Court of Appeals. This rule is
inapplicable, however, since it necessarily governs only pleadings filed after
commencement of the appeal. It does not apply to notices of appeal, which are by rule filed
with the clerk of the court from which the appeal is taken, not the clerk of the court of
appeals. Because Louden involved filing a notice of appeal electronically with the clerk of
the trial court before the appellate court in question had promulgated its own e-filing rule,
it concerned the means of filing, not the timing. Moreover, the rationale invoked in Louden
is difficult to apply in a case where the court of appeals is asked to enlarge, rather than
No. 17AP-850 5
restrict, the filing conditions in a trial court. We do not consider Louden inconsistent with
our present ruling.
{¶ 11} Even under the most favorable interpretation of the facts of this case,
appellant's initial attempt to file his notice of appeal with the clerk of the Court of Claims
after 4:59 p.m. on the last permissible day for timely filing was not timely. Accordingly, we
need not reach appellant's assertion that the Court of Claims' electronic filing system
improperly rejected his payment of the requisite filing fee.
{¶ 12} Because the appeal does not comply with App.R. 4(A), it must be dismissed
for lack of jurisdiction. Accordingly, we grant the motion to dismiss.
Motion to dismiss granted.
BROWN, P.J., and LUPER SCHUSTER, J., concur.