In re 2009 Harley Davidson

[Cite as I re 2009 Harley Davidson, 2012-Ohio-2018.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
:
IN RE: FORFEITURE OF A :
: Case No: 11CA4
2009 Harley Davidson; 1993 Ford F-150; :
1998 Chevy Cavalier :
: DECISION AND
: JUDGMENT ENTRY
:
: Filed: May 2, 2012
APPEARANCES:
Colleen S. Williams, Meigs County Prosecutor, and Amanda Franzmann, Meigs County
Assistant Prosecutor, Pomeroy, Ohio, for Appellant, State of Ohio.
William W. Henderson, Logan, Ohio, for Appellee, Robert Russell.
Kline, J.:
{¶1} The State of Ohio appeals the judgment of the Meigs County Court of
Common Pleas, which dismissed the state’s complaint for forfeiture. Here, we find that
the state’s appeal is untimely. As a result, we must dismiss this appeal for lack of
jurisdiction.
I.
{¶2} In its complaint for forfeiture, the state alleged that Victoria Sisco and
Raymond Sisco used a 2009 Harley Davidson, a 1993 Ford F-150, and a 1998 Chevy
Cavalier in the commission of various felonies. Robert Russell (hereinafter “Russell”)
claimed, however, that he owned the Harley Davidson. The state disputed Russell’s
Meigs App. No. 11CA4 2
claim, and the trial court held a hearing to determine the Harley Davidson’s rightful
owner.
{¶3} In a January 10, 2011 entry, the trial court dismissed the state’s entire
complaint and ordered the release of the Harley Davidson to Russell. Then, in a
January 19, 2011 nunc pro tunc entry, the trial court added language related to the
costs of the proceeding. The state filed its notice of appeal on February 15, 2011.
{¶4} On appeal, the state asserts the following two assignments of error: I. “The
trial court improperly ordered the release of the 2009 Harley Davidson to Robert K.
Russell when he is not the legally titled owner of the motorcycle.” And, II. “The trial
court errored [sic] when it dismissed the complaint for forfeiture of the 2009 Harley
Davidson, the 1993 Ford F-150 and the 1998 Chevy Cavalier because it heard evidence
only in regards to the 2009 Harley Davidson.”
II.
{¶5} Initially, we must determine whether we have jurisdiction to consider the
state’s appeal. More specifically, we must determine whether the state’s appeal is
timely.
App.R. 4(A) requires a party to file a notice of appeal “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.” If a party fails to file a notice of appeal within
thirty days as required by App.R. 4(A), we do not have
Meigs App. No. 11CA4 3
jurisdiction to entertain the appeal. The timely filing of a
notice of appeal under this rule is a jurisdictional prerequisite
to our review. Hughes v. A & A Auto Sales, Inc., 4th Dist.
No. 08CA35, 2009-Ohio-2278, ¶ 7, quoting App.R. 4(A).
{¶6} Here, we will start by examining the trial court’s January 10, 2011 judgment
entry, which states the following: “This Court finds the Complaint for Forfeiture not well
taken and therefore dismisses the same, the Court hereby orders the release of the
2009 Harley Davidson to Robert Russell.” Because it dismisses the state’s entire
complaint, we find that the January 10, 2011 judgment entry is a final appealable order.
See Mullins v. Grosz, 10th Dist. No. 10AP-23, 2010-Ohio-3844, ¶ 37, fn. 1 (“The trial
court’s * * * decision and judgment entry unquestionably constitutes a final appealable
order, as it dismisses appellant’s complaint in its entirety.”).
{¶7} “As a general rule, a trial court has no authority to vacate or modify its final
orders sua sponte.” N. Shore Auto Financing, Inc. v. Valentine, 8th Dist. No. 90686,
2008-Ohio-4611, ¶ 12. See also Burriss v. Burriss, 4th Dist. Nos. 09CA21 & 10CA11,
2010-Ohio-6116, ¶ 15. Nevertheless, on January 19, 2011, the trial court sua sponte
entered a “Nunc Pro Tunc Entry Dismissing the Complaint for Forfeiture.” The January
19, 2011 nunc pro tunc contains the same language as the January 10, 2011 entry, but
the nunc pro tunc entry adds the following language related to storage costs: “and
orders the Meigs County Major Crimes Task Force to pay the costs of this proceeding,
including, but not limited to, the costs of storage.”
{¶8} Because it modifies a final appealable order, we find that the January 19,
2011 nunc pro tunc entry is a nullity. Other courts have reached the same conclusion in
Meigs App. No. 11CA4 4
similar circumstances. For example, the trial court tried to modify a final appealable
order in West v. Geffken, 9th Dist. No. 24243, 2008-Ohio-6624. But the Ninth Appellate
District held that, “[b]ecause the [earlier] order was final and appealable, this [was] not a
situation in which the trial court could amend that order nunc pro tunc.” Id. at ¶ 6. See
also Allstate Ins. Co. v. Witta, 9th Dist. No. 25738, 2011-Ohio-6068, ¶ 9-11 (discussing
how various districts have addressed this issue). Here, the January 10, 2011 entry was
final and appealable. Therefore, the trial court did not have the authority to modify it,
and the January 19, 2011 nunc pro tunc entry is a nullity. (“The forfeiture statutes are
silent on th[e] issue [of storage costs].” Dayton Police Dept. v. Pitts, 2d Dist. No. 23213,
2010-Ohio-1505, ¶ 8. Therefore, a trial court is not required to address storage costs
while resolving a claim under the forfeiture statutes. And as a result, the January 10,
2011 entry was final and appealable even though it did not address storage costs.)
{¶9} Based on the foregoing, we find that the state’s appeal is untimely. The
state filed its notice of appeal on February 15, 2011, which would have been timely if
the state was appealing from the January 19, 2011 order. But the state may not appeal
from the January 19, 2011 order because that order is a nullity. See Burriss at ¶ 17;
West at ¶ 4-7. Here, the state should have filed an appeal within thirty days of the
January 10, 2011 order. Because the state failed to do so, its appeal is untimely.
{¶10} Finally, even if we had found the January 19, 2011 entry to be a valid nunc
pro tunc entry, we would still find this appeal to be untimely. “A nunc pro tunc order
speaks as of the date of the original judgment[] and does not extend the 30-day filing
period for an appeal.” State v. $1885.00 in U.S. Currency, 5th Dist. No. 2011-CA-
00036, 2011-Ohio-3038, ¶ 4, citing Gold Touch, Inc. v. TJS Lab, Inc., 130 Ohio App.3d
Meigs App. No. 11CA4 5
106, 109, 719 N.E.2d 629 (8th Dist.1998). See also Hughes, 2009-Ohio-2278, at ¶ 8.
Therefore, even if the January 19, 2011 entry were a valid nunc pro tunc entry, the state
would have had to file its appeal within thirty days of the January 10, 2011 entry. Again,
the state failed to do so.
{¶11} Accordingly, because the state did not file a timely notice of appeal, we
lack jurisdiction to consider this appeal and must dismiss it.
APPEAL DISMISSED.
Meigs App. No. 11CA4 6
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED. Appellant shall pay the costs
herein taxed.
The Court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Meigs County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.