[Cite as State ex rel. Ford v. McClelland, 2013-Ohio-4379.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100014



                             STATE OF OHIO EX REL.,
                                 NATHAN FORD
                                                               RELATOR

                                                      vs.

                       JUDGE ROBERT McCLELLAND
                                                               RESPONDENT




                                      JUDGMENT:
                                  COMPLAINT DISMISSED


                                           Writ of Mandamus
                                           Motion No. 466634
                                           Order No. 468429

RELEASE DATE:               October 1, 2013
FOR RELATOR

Nathan Ford, Pro Se
Inmate No. 513816
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, OH 44430


ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: James E. Moss
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, A.J.:

       {¶1} Nathan Ford has filed a complaint for a writ of mandamus. Ford seeks an

order from this court that requires Judge Robert McClelland to discharge the duty

imposed by Civ.R. 58(B) when rendering a ruling with regard to a petition for

postconviction relief filed pursuant to R.C. 2953.21. Ford argues that upon rendering a

judgment with regard to a petition for postconviction relief, Civ.R. 58(B) creates a duty

on the part of Judge McClelland to endorse upon the judgment an instruction to the clerk

to serve upon all parties notice of the judgment and its date of entry upon the journal.

Judge McClelland has filed a motion to dismiss, that we grant for the following reasons.

       {¶2} To be entitled to a writ of mandamus, Ford must demonstrate a clear legal

right to the requested relief, a clear legal duty on the part of Judge McClelland to provide

it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel.

Eshleman v. Fornshell, 125 Ohio St.3d 1, 2010-Ohio-1175, 925 N.E.2d 609. Ford must

also prove that he is entitled to the writ by clear and convincing evidence. State ex rel.

Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452.

       {¶3} In this case, Ford filed petitions for postconviction relief in State v. Ford,

Cuyahoga C.P. Nos. CR-464709 and CR-469583 on March 20, 2013. On March 26,

2013, Judge McClelland denied the petitions. Ford alleges that the judgment entries that

were signed by Judge McClelland and denied his petitions for postconviction relief, did

not contain a direction to the clerk to serve upon all parties notice of the judgments as

required by Civ.R. 58(B).    On May 7, 2013, Ford filed a “motion for proper notice”
requesting that Judge McClelland comply with Civ.R. 58(B) with regard to the judgment

entries of March 26, 2013, that denied his petitions for postconviction relief.           The

“motion for proper notice” remains pending.

       {¶4} An action for postconviction relief is a civil proceeding. State v. Nichols, 11

Ohio St.3d 40, 463 N.E.2d 375 (1984). Because an action for postconviction relief

constitutes a civil proceeding, the notice requirement of Civ.R. 58 is applicable to any

judgment rendered with regard to a motion for postconviction relief.

       {¶5} This court, in State v. Tucker, 8th Dist. Cuyahoga No. 95556,

2011-Ohio-4092, ¶ 9, addressed the issue of Civ.R. 58 and the requirement that the trial

court direct the clerk to serve notice upon the parties of a judgment and held that:

       The state argues that the instant appeal was filed over 1500 days out of rule.
        Generally, a party has 30 days from the date of a final, appealable order to
       perfect an appeal. App.R. 4(A). However, the Ohio Supreme Court has
       recognized that the right to an appeal is a property interest that must be
       protected and afforded due process. Atkinson v. Grumman Ohio Corp.
       (1988), 37 Ohio St.3d 80, 523 N.E.2d 851. As such, Civ.R. 58 was
       enacted in Ohio to preserve the appellate rights of individuals. This is a
       bright-line rule establishing that if the clerk of courts properly perfects
       service within three days of the issuance of the judgment, then parties have
       30 days to file a notice of appeal no matter if service is actually received.
       However, if service is not perfected as outlined in Civ.R. 58, then the period
       for filing an appeal is tolled according to App.R. 4(A). This rule states,
       “[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.”

       Here, the trial court did not direct the clerk to serve notice upon the parties.
        The clerk also failed to note the date of any notice sent. Accordingly,
       because service was not perfected in accordance with Civ.R. 58, the time
       for filing an appeal never began to run, and the instant appeal is timely.
See also Whitehall ex rel. Fennessy v. Bambi Motel, 131 Ohio App.3d 734, 723 N.E.2d

633 (10th Dist.1998); State v. Stanley, 2d Dist. Greene No. 2012-CA-17, 2013-Ohio-306;

State v. Smith, 7th Dist. Jefferson No. 05-JE-49, Ohio App. LEXIS 4572 (Sept. 1, 2006);

State v. Stevens, 2d Dist. Montgomery No. 16562, 1998 Ohio App. LEXIS 2622 (June 12,

1998); Lamberson v. State Farm Mut. Auto. Ins. Co., 10th Dist. Franklin No.

94APE02-274, 1994 Ohio App. LEXIS 3818 (Aug. 25, 1994).

         {¶6} Clearly, pursuant to Civ.R. 58(B), Ford possesses the right to notice and

Judge McClelland possesses a duty to endorse upon any judgment, when dealing with a

civil proceeding,    a direction to the clerk of the trial court “to serve upon all parties not

in default for failure to appear notice of the judgment and its date of entry upon the

journal.” The right and duty provided by Civ.R. 58(B) is applicable to the disposition of

a petition for postconviction relief, which is considered civil in nature.   State v. Nichols,

supra.

         {¶7} It must also be noted that Ford’s knowledge of the denial of the petitions for

postconviction relief, journalized on March 26, 2013, was insufficient to begin the

running of the time for appeal absent the formal notice           required by Civ.R. 58(B).

Welsh v. Tarentelli, 76 Ohio App.3d 831, 603 N.E.2d 399 (10th Dist.1992); Britford v.

Duncan, 10th Dist. Franklin No. 93AP-385, 1993 Ohio App. LEXIS 5417 (Nov. 12,

1993). The 30-day time limit, contained in App.R. 4(A), does not begin to run until the

later of:   (1) entry of the judgment or order appealed if the notice mandated by Civ.R.

58(B) is served within three days of the entry of the judgment; or (2) service of the notice
of judgment and its date of entry if service is not made on the party within the three-day

period in Civ.R. 58(B). Because the trial court never endorsed upon the judgments of

March 26, 2013, the required “direction to the clerk to serve upon all parties * * * notice

of the judgment and its date of entry upon the journal,” the time for appeal of the

judgments of March 26, 2013, never began to run.     Lamberson, supra; Whitehall, supra.

      {¶8} However, the existence of an adequate remedy at law prevents this court from

issuing a writ of mandamus on behalf of Ford.         Here, Ford possesses an adequate

remedy in the ordinary course of the law. State ex rel. Jones v. Ansted, 131 Ohio St.3d

125, 2012-Ohio-109, 961 N.E.2d 192; State ex rel. Cunnigham v. Lindeman, 126 Ohio

St.3d 481, 2010-Ohio-4388, 935 N.E.2d 393.         Ford has filed a “motion for proper

notice,” which remains pending before Judge McClelland.      If the motion is granted, and

proper notice is accomplished through Judge McClelland’s compliance with Civ.R.

58(B), Ford is permitted to file an appeal from the original denial of his petition for

postconviction relief within the 30-days provided by App.R. 4(A). If the motion is

denied, Ford possesses the ability to file an appeal from the denial of his “motion for

proper notice.”

      {¶9} Accordingly, we grant Judge McClelland’s motion to dismiss. Costs to

Judge McClelland.     Costs waived.    The court directs the clerk of court to serve all

parties with notice of this judgment and the date of entry upon the journal required by

Civ.R. 58(B).

      {¶10} Complaint dismissed.
MELODY J. STEWART, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
PATRICIA ANN BLACKMON, J., CONCUR
