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IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
DALLAS WING, : APPEAL NO. C-160257
TRIAL NO. A-1402100
Plaintiff-Appellant, :
O P I N I O N.
vs. :
ERIC HAAFF, M.D., :
and :
TRI-STATE UROLOGICAL :
SERVICES, P.S.C., INC., d.b.a. THE
UROLOGY GROUP, :
Defendants-Appellees, :
and :
BETHESDA HOSPITAL, INC., d.b.a. :
BETHESDA NORTH HOSPITAL,
:
and
:
TRI-HEALTH INC.,
Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 21, 2016
F. Harrison Green Co., LPA, and F. Harrison Green, for Plaintiff-Appellant.
Calderhead, Lockemeyer & Peschke Law, Stephanie P. Franckewitz and David S.
Lockemeyer, for Defendants-Appellees.
O HIO F IRST D ISTRICT C OURT OF A PPEALS
M OCK , Judge.
{¶1} On July 15, 2015, the jury in this medical-malpractice action returned
a verdict in favor of plaintiff-appellant Dallas Wing for $30,000. The judgment
entry was signed by the parties and entered by the court the same day. It does not
appear from the record that the judgment was served on the parties by the clerk. On
August 12—28 days after the judgment was entered—defendants-appellees Eric
Haaff, M.D., and Tri-State Urological Services, P.S.C., Inc., d.b.a. The Urology Group
(hereinafter “appellees”) filed a combined motion for judgment notwithstanding the
verdict and a new trial pursuant to Civ.R. 50 and 59. Two days later, Wing filed his
own motions for judgment notwithstanding the verdict and a new trial. Appellees
subsequently withdrew their motion. The trial court denied Wing’s motions as
untimely.
{¶2} In two assignments of error, Wing now appeals. Wing first argues
that the trial court improperly concluded that his post-trial motions were untimely.
He then argues that the motions substantively had merit and should have been
granted. We conclude that the trial court properly determined that the motions were
untimely.
{¶3} In his first assignment of error, Wing claims that the trial court
incorrectly found that his motions were untimely. In support of that argument, he
cites Civ.R. 58(B), which states that “[w]ithin three days of entering the judgment
upon the journal, the clerk shall serve the parties in a manner prescribed by Civ.R.
5(B) and note the service in the appearance docket. Upon serving the notice and
notation of the service in the appearance docket, the service is complete.” He argues
that “[s]ince the entry of judgment was not notified [sic], service was never
completed for the time for filing the Motion for new trial and JNOV to run out.”
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O HIO F IRST D ISTRICT C OURT OF A PPEALS
{¶4} As it relates to motions for judgment notwithstanding the verdict,
Civ.R. 50(B) states that “not later than twenty-eight days after entry of judgment, a
party may serve a motion to have the verdict and any judgment entered thereon set
aside and to have judgment entered in accordance with the party’s motion ….”
Likewise, Civ.R. 59(B) states that a motion for a new trial “shall be served not later
than twenty-eight days after the entry of the judgment.”
{¶5} The problem with Wing’s argument is that neither Civ.R. 50 nor
Civ.R. 59 make reference to Civ.R. 58(B) with regard to the deadline for filing the
motions. While Wing attempts to draw parallels from cases involving the filing of a
notice of appeal, App.R. 4(A)(3) specifically states that a clerk’s failure to mail a
judgment pursuant to Civ.R. 58(B) will toll the time for filing an appeal. See App.R.
4(A)(3). So, unlike the cases involving the filing of an appeal, there is no authority in
the rules for tolling the deadline for filing motions pursuant to Civ.R. 50(B) or 59(B).
{¶6} In fact, both rules expressly state that the time is to commence upon
the entry of judgment. While Wing argues that “service was never completed for the
time for filing the Motion for new trial and JNOV to run out,” he ignores the fact that
the 28-day period doesn’t commence with the completion of service, it commences
with entry of the judgment.
{¶7} There is no provision for extending the deadline for filing a motion for
judgment notwithstanding the verdict or for a new trial. While Civ.R. 6 contains a
provision that provides ways for the trial court to extend certain deadlines, it
expressly excludes extending the time for taking action under Civ.R. 50(B) or Civ.R.
59(B) “except to the extent and under the conditions stated in them.” Civ.R. 6(B).
Neither Civ.R. 50(B) nor Civ.R. 59(B) contains a provision for allowing motions to be
filed beyond 28 days after the entry of judgment.
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O HIO F IRST D ISTRICT C OURT OF A PPEALS
{¶8} The plain language of both Civ.R. 50(B) and 59(B) requires motions
challenging a judgment to be filed within 28 days of the entry of the judgment.
Wing’s motion was filed outside that period, and the trial court properly determined
that it was untimely. We therefore overrule Wing’s first assignment of error.
Because we have concluded that the motions were untimely, Wing’s second
assignment of error, addressing the merits of his motions, is rendered moot. We
affirm the judgment of the trial court.
Judgment affirmed.
FISCHER, P.J., and CUNNINGHAM, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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