[Cite as Third Fed. S. & L. Assn. v. Haupt, 2014-Ohio-348.]


STATE OF OHIO                     )                           IN THE COURT OF APPEALS
                                  )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

THIRD FEDERAL SAVINGS & LOAN                                  C.A. No.   12CA010306
ASSN.

        Appellee
                                                              APPEAL FROM JUDGMENT
        v.                                                    ENTERED IN THE
                                                              COURT OF COMMON PLEAS
JOHN HAUPT, et al.                                            COUNTY OF LORAIN, OHIO
                                                              CASE No.   11CV173291
        Defendants

IRENE JARMOSZUK-HAUPT

        Appellant

                                 DECISION AND JOURNAL ENTRY

Dated: February 3, 2014



        {¶1}     Appellant Irene Jarmoszuk-Haupt appeals the judgment of the Lorain County

Court of Common Pleas. This Court reverses and remands.

                                                      I.

        {¶2}     Appellee Third Federal Savings & Loan Association of Cleveland filed a

complaint for money due and foreclosure against John Haupt and Irene Jarmoszuk-Haupt. The

Haupts were divorced at the time of the filing of the complaint. Ms. Haupt filed a separate

answer and counterclaim for breach of contract.1 Third Federal replied to the counterclaim.

Third Federal subsequently moved for partial judgment on the pleadings pursuant to Civ.R.



        1
         Despite repeated attempts at service on John Haupt, including service by publication,
Mr. Haupt failed to file an answer to the complaint. Third Federal moved for default judgment
against Mr. Haupt, and the trial court granted same. Mr. Haupt has not appealed and is not
otherwise a party to this appeal.
                                                 2


12(C) as to Ms. Haupt’s counterclaim. Ms. Haupt replied in opposition. The magistrate denied

Third Federal’s motion, and the trial court adopted that decision.

       {¶3}    Third Federal moved for summary judgment on its complaint and Ms. Haupt’s

counterclaim. Ms. Haupt responded in opposition, and Third Federal replied. The matter was

submitted and heard by the magistrate, who issued a decision on October 4, 2012. On the same

day, the trial court issued a judgment, adopting the magistrate’s decision “attached []to and

incorporated [t]herein.” The clerk of court issued a notice pursuant to Civ.R. 58(B) to all parties

or attorneys of record that judgment was rendered and entered upon the journal of the court on

October 4, 2012. The notice does not bear a time-stamp, although the clerk of court’s case

docket sheet indicates that the clerk’s office mailed the notice on October 9, 2012.

       {¶4}    Ms. Haupt did not file objections to the magistrate’s decision. Instead, she filed a

notice of appeal on November 8, 2012. She raises one assignment of error for review.

       {¶5}    As a preliminary matter, Third Federal has moved to dismiss Ms. Haupt’s appeal

as untimely. The institution argues that Ms. Haupt failed to timely file her notice of appeal

pursuant to App.R. 4(A) because the clerk of court served notice of the judgment within the

three-day period prescribed by Civ.R. 58(B) in compliance with the time computation directives

of Civ.R. 6(A).

       {¶6}    App.R. 4(A) addresses the time for appeal and provides:

       A party shall file the notice of appeal required by App.R. 3 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.

       {¶7}    Civ.R. 6(A) addresses the computation of time and states:

       In computing any period of time prescribed or allowed by these rules, by the local
       rules of any court, by order of court, or by any applicable statute, the day of the
       act, event, or default from which the designated period of time begins to run shall
                                                  3


       not be included. The last day of the period so computed shall be included, unless
       it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until
       the end of the next day which is not a Saturday, a Sunday, or a legal holiday.
       When the period of time prescribed or allowed is less than seven days,
       intermediate Saturdays, Sundays, and legal holidays shall be excluded in the
       computation. When a public office in which an act, required by law, rule, or
       order of court, is to be performed is closed to the public for the entire day which
       constitutes the last day for doing such an act, or before its usual closing time on
       such day, then such act may be performed on the next succeeding day which is
       not a Saturday, a Sunday, or a legal holiday.

       {¶8}    Civ.R. 58(B) directs the clerk of court to serve the parties with notice of the

judgment within three days of entering the judgment upon the journal.

       {¶9}    This Court acknowledges that the judgment was entered on Thursday, October 4,

2012. Monday, October 8, 2012, was Columbus Day, a legal holiday. The clerk’s office mailed

the notice of judgment on October 9, 2012. Accordingly, service of the trial court’s judgment

was technically made within three days of the entry of judgment. It would appear, therefore, that

the time for appeal began to run as of the date of the judgment, October 4, 2012, rendering Ms.

Haupt’s November 8, 2012 notice of appeal untimely. Nevertheless, this Court declines to apply

the time computation directives of Civ.R. 6(A) under these circumstances.

       {¶10} The purpose of the Ohio Civil Rules of Procedure is to guide the courts to effect

justice. Civ.R. 1(B) states: “These rules shall be construed and applied to effect just results by

eliminating delay, unnecessary expense and all other impediments to the expeditious

administration of justice.” The rules exist for the benefit of practitioners, not as a yoke that binds

the clerk of court’s office. Here, although Civ.R. 58(B) appears to mandate the clerk’s service of

the judgment within three days, App.R. 4(A) recognizes that the clerk will not always service

notice within those time constraints. Therefore, App.R. 4(A) recognizes the true purpose behind

the civil rules to give parties the benefit of the full scope of time to perfect an appeal by delaying
                                                 4


the running of the time for appeal until service of the notice of judgment rather than entry of the

judgment.

       {¶11} In this case, although the judgment was entered on October 4, 2012, the clerk did

not mail notice of the judgment until October 9, 2012. The parties would not have received the

mailed notice until after that date. Applying Civ.R. 6(A) in this case to conclude that the time

for appeal began to run as of October 4, 2012, would work an injustice in contravention of the

purpose behind the rules. Assuming three days for delivery by mail of the notice, Ms. Haupt’s

window of time in which to perfect her appeal was reduced from thirty days to twenty-two days.

We conclude, therefore, that Civ.R. 6(A) is not controlling as it was not promulgated with the

intent of promoting injustice or binding the clerk. To hold otherwise would allow the clerk,

albeit with no malevolent intent, to deprive a party of a substantial portion of the time allowed in

which to perfect her appeal. Accordingly, we conclude that, given the clerk’s delay (in part due

to an intervening weekend followed by a legal holiday) in mailing the notice of entry of

judgment, Civ.R. 6(A) is not implicated and cannot be used to deprive Ms. Haupt of the benefit

of the thirty-day time period accorded by App.R. 4 in which to perfect her appeal. Third

Federal’s motion to dismiss the appeal is denied.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS BY ADOPTING
       THE MAGISTRATE’S DECISION GRANTING SUMMARY JUDGMENT IN
       FAVOR OF APPELLEE.

       {¶12} Ms. Haupt argues that she was deprived of her right to due process when she was

not served with the magistrate’s decision granting summary judgment in favor of Third Federal,

thereby foreclosing her opportunity to file objections and preserve her right to raise such issues

on appeal. This Court agrees.
                                                 5


       {¶13} Civ.R. 53(D)(3)(a)(iii) provides:

       A magistrate’s decision shall be in writing, identified as a magistrate’s decision in
       the caption, signed by the magistrate, filed with the clerk, and served by the clerk
       on all parties or their attorneys no later than three days after the decision is filed.
       A magistrate’s decision shall indicate conspicuously that a party shall not assign
       as error on appeal the court’s adoption of any factual finding or legal conclusion,
       whether or not specifically designated as a finding of fact or conclusion of law
       under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to
       that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).

(Emphasis added.) This Court has repeatedly recognized that “[t]he clear import of [current

Civ.R. 53(D)] is to provide litigants with a meaningful opportunity to register objections to the

[magistrate’s] report and the failure to provide such an opportunity to object is prejudicial error.”

Ulrich v. Mercedes-Benz USA, L.L.C., 9th Dist. Summit No. 23550, 2007-Ohio-5034, ¶ 13,

quoting Ford v. Gooden, 9th Dist. Summit No. 22764, 2006-Ohio-1907, ¶ 13.

       {¶14} This Court agrees with Ms. Haupt that she was deprived of a meaningful

opportunity to object to the magistrate’s decision, and that the resulting prejudice mandates

reversal and remand.

       {¶15} The trial court’s judgment stated in pertinent part: “By separate and distinct

instrument, the Court adopts the Magistrate’s Decision – Findings of Facts and Conclusions of

Law attached hereto and incorporated herein.”        In this case, the magistrate’s decision was

journalized separately from the trial court’s judgment. The magistrate’s decision was not stapled

or otherwise affixed to the trial court’s judgment. In addition, there was only one copy of the

magistrate’s October 4, 2012 decision in the record. This is in stark contrast to the record

evidencing the magistrate’s and trial court’s disposition of Third Federal’s motion for judgment

on the pleadings. As to that matter, the magistrate’s decision was journalized on June 8, 2012,

and was present in the record. The trial court, “[b]y separate and distinct instrument,” adopted

the magistrate’s decision “attached hereto and incorporated herein.” A copy of the June 8, 2012
                                                6


magistrate’s decision was stapled to the trial court’s journal entry. Therefore, the June 8, 2012

magistrate’s decision physically existed twice in the record. That was not the case with the

October 4, 2012 magistrate’s decision relevant to this appeal.

       {¶16} The clerk of court’s Civ.R. 58(B) notice of entry of the trial court’s October 4,

2012 judgment did not mention the magistrate’s decision filed the same day. There was no

separate notice from the clerk regarding the rendering of the magistrate’s decision. Moreover,

the clerk’s notice of the judgment did not give the parties any notice of their opportunity to file

objections. Because the magistrate’s decision was not physically attached to the trial court’s

judgment, and there was nothing in the record to indicate that the magistrate’s decision was

separately sent to the parties, there was nothing to indicate that the parties were served with a

copy of the magistrate’s decision. Accordingly, there was nothing to indicate that Ms. Haupt

received notice of her opportunity to file objections to the magistrate’s decision. Under these

circumstances, we reverse the trial court’s judgment and remand the matter for proper

compliance with Civ.R. 53(D)(3)(a)(iii) to allow the parties the opportunity to file timely

objections for the trial court’s independent review and rendering of final judgment. See Ulrich at

¶ 15-16. Ms. Haupt’s assignment of error is sustained.

                                               III.

       {¶17} Ms. Haupt’s sole assignment of error is sustained. The judgment of the Lorain

County Court of Common Pleas is reversed and the cause remanded for further proceedings

consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.
                                                 7


       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT




MOORE, P. J.
CONCURS.

HENSAL, J.
DISSENTING.

       {¶18} I respectfully dissent. I do not believe that this Court has jurisdiction to address

Ms. Haupt’s arguments as her notice of appeal was untimely. Accordingly, I would grant Third

Federal’s motion to dismiss.

       {¶19} Appellate Rule 4(A) provides that the notice of appeal of a trial court decision

must be filed with this Court within 30 days from the date of the judgment entry “or, in a civil

case, service of the notice of judgment and its entry if service is not made on the party within the
                                                8


three day period in Rule 58(B) of the Ohio Rules of Civil Procedure.” The majority recognizes

that, taking into account the intervening weekend and holiday, the clerk of court served the

parties with notice within three days of entering the judgment as directed by Civil Rule 58(B).

Accordingly, Ms. Haupt’s deadline for appeal began to run on the date of the judgment, which

was October 4, 2012. Her appeal was not filed until November 8, 2012, and is, therefore,

untimely. “This Court has recognized that * * * ‘[w]here an untimely appeal has been filed, an

appellate court lacks jurisdiction to consider the merits, and the appeal must be dismissed.” State

v. Lovett, 9th Dist. Summit No. 26779, 2013-Ohio-3515, ¶ 6, quoting State v. Myers, 9th Dist.

Wayne No. 08CA0041, 2009-Ohio-2082, ¶ 7. Thus, I respectfully dissent.


APPEARANCES:

GARY COOK and MICHAEL ATEN, Attorneys at Law, for Appellant.

JASON K. WRIGHT, Attorney at Law, for Appellee.
