Darin T. Stewart, Plaintiff-Appellant,
Judge William T. Gillie et al., Defendants-Appellees.
from the Franklin County Court of Common Pleas (C.P.C. No.
T. Stewart, pro se.
O'Brien, Prosecuting Attorney, and Benjamin D. Humphrey,
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
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 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.
Appellees 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.
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 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 ...