Cl. No. 2015-00001
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.
MOTION TO DISMISS
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
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:
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 ...