[Cite as Smith v. Partlow,
2025-Ohio-607.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
ANTHONY J. SMITH, CASE NO. 2024-P-0058
Plaintiff-Appellant,
Civil Appeal from the
- vs - Court of Common Pleas
MICHAEL A. PARTLOW, ESQ.,
Trial Court No. 2021 CV 00751
Defendant-Appellee.
OPINION
Decided: February 24, 2025
Judgment: Affirmed
Anthony J. Smith, pro se, PID# A484-639, Lake Erie Correctional Institution, 501
Thompson Road, P.O. Box 8000, Conneaut, OH 44030 (Plaintiff-Appellant).
Michael A. Partlow, pro se, P.O. Box 1562, Stow, OH 44224 (Defendant-Appellee).
MATT LYNCH, J.
{¶1} This case is a direct appeal filed by plaintiff-appellant, Anthony J. Smith,
from the judgment of the Portage County Court of Common Pleas denying his Civ.R.
60(B) motion for relief from judgment. For the following reasons, we affirm.
{¶2} In December 2021, Smith filed in the trial court a complaint against
defendant-appellee, Attorney Michael A. Partlow, alleging legal malpractice in relation to
Smith’s criminal conviction in Trumbull County case no. 04CR574. Attorney Partlow
answered the complaint, and the matter came before the trial court on cross-motions for
summary judgment.
{¶3} On August 24, 2023, the trial court denied Smith’s motion for summary
judgment, granted Attorney Partlow’s motion for summary judgment, and dismissed the
case with prejudice. The clerk, under Civ.R. 58(B), served notice of the judgment on the
parties by regular mail that same day.
{¶4} On November 6, 2023, Smith filed in this court a notice of appeal from the
trial court’s August 24 judgment entry. The appeal was untimely. See App.R. 4(A)(1)
(requiring an appellant to file the notice of appeal required by App.R. 3 within 30 days of
an order that is final upon its entry). Smith included a memorandum explaining why he
was unable to perfect a timely appeal. According to Smith, (1) Civ.R. 58(B) requires the
clerk to serve parties with a copy of the judgment entry, not merely notice of the judgment;
(2) App.R. 4(A) tolls the time for filing a notice of appeal if service of the judgment is not
made in accordance with Civ.R. 58(B); and (3) Eleventh Dist.Loc.R. 3(C)(2) requires that
an appellant attach to a notice of appeal a copy of the judgment entry being appealed.
Smith avers that he received the clerk’s notice of judgment on August 28 but did not
receive a copy of the judgment entry until October 12. Smith therefore contends that the
triggering date for the filing of his notice of appeal was October 12, i.e., the day he
received a copy of the trial court’s final judgment entry, and not August 24, i.e., the day
that the clerk served him with notice of the judgment.
{¶5} We dismissed Smith’s appeal as untimely, explaining that “[t]his court is not
empowered to extend the time deadline in civil cases.” Smith v. Partlow, 2023-Ohio-
4598, ¶ 5 (11th Dist.), citing State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio
St.3d 58, 60 (1988) and App.R. 14(B).
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{¶6} On June 17, 2024, Smith filed in the trial court a Civ.R. 60(B) motion for
relief from judgment. He requested the trial court to vacate the August 24, 2023 judgment
and reissue the judgment to allow Smith to file a timely notice of appeal.
{¶7} The trial court denied Smith’s Civ.R. 60(B) motion, stating that Smith had
conflated the clerk’s duties under Civ.R. 58(B) to serve notice of the judgment within three
days with this court’s requirement under Eleventh Dist.Loc.R. 3(C)(2) that a copy of the
judgment entry be included with the notice of appeal.
{¶8} Smith has filed a timely notice of appeal from the trial court’s denial of his
Civ.R. 60(B) motion. For ease of discussion, we consider Smith’s two assignments of
error in reverse order.
{¶9} In his second assignment of error, Smith contends that the trial court erred
by failing to conclude that Civ.R. 58(B) requires the clerk to serve the parties with notice
of the judgment and a copy of the trial court’s judgment entry.
{¶10} The interpretation of a civil rule presents a question of law, which we review
de novo. See, e.g., Archer v. Vallette, 2022-Ohio-3560, ¶ 17 (10th Dist.).
{¶11} The plain language of Civ.R. 58(B) (“Notice of Filing”) requires only that the
clerk serve “notice of the judgment and its date of entry upon the journal”:
When the court signs a judgment, the court shall endorse thereon a
direction to the clerk to serve upon all parties not in default for failure to
appear notice of the judgment and its date of entry upon the journal. Within
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. The failure of the clerk
to serve notice does not affect the validity of the judgment or the running of
the time for appeal except as provided in App.R. 4(A).
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(Emphasis added.) See also Clermont Cty. Transp. Improvement Dist. v. Gator Milford,
L.L.C., 2015-Ohio-241, syllabus (“The 30-day time period to file a notice of appeal begins
upon service of notice of the judgment and notation of service on the docket by the clerk
of courts regardless of actual knowledge of the judgment by the parties.”).
{¶12} Nevertheless, Smith argues that the clerk must be required to serve parties
with a copy of the judgment because this court’s local rule requires a copy of the judgment
being appealed to be attached to the notice of appeal. Eleventh Dist.Loc.R. 3(C)(2)
provides: “The appellant shall attach to the Notice of Appeal, a copy of the judgment entry
or entries being appealed. Appellant’s failure to attach a copy of the judgment entry or
entries may result in the dismissal of the appeal sua sponte and without notice.”
{¶13} Smith’s argument is not persuasive. Smith submitted a memorandum with
his notice of appeal explaining why he failed to comply with the timeliness requirement of
App.R. 4(A). However, failure to file a notice of appeal within the time prescribed by law
is a jurisdictional defect for which we could provide no relief. See Smith, 2023-Ohio-4598,
at ¶ 2 (11th Dist.), citing In re H.F.,
2008-Ohio-6810, ¶ 17, citing Pendell,
40 Ohio St.3d
at 60.
{¶14} On the other hand, failure to attach the judgment entry being appealed to
the notice of appeal is not a jurisdictional defect. This is apparent from the use of the
word “may” in Eleventh Dist.Loc.R. 3(C)(2): “failure to attach a copy of the judgment entry
. . . may result in the dismissal of the appeal . . . .” (Emphasis added.) See, e.g., State
ex rel. Ames v. Portage Cty. Bd. of Commrs., 2024-Ohio-146, ¶ 8, fn. 2 (11th Dist.) (where
we chose to address the appellant’s arguments despite his failure to attach the correct
judgment entry). We have invoked Eleventh Dist.Loc.R. 3(C)(2) in criminal appeals when
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it is unclear which order is being appealed and, assuming that the appeal was taken from
the last judgment on the docket, the appeal was untimely. See, e.g., State v. Molson,
2021-Ohio-1065, ¶ 12 (11th Dist.); State v. Foster,
2021-Ohio-907, ¶ 12 (11th Dist.).
Here, Smith could have filed a timely notice of appeal on which he “designated the
judgment . . . appealed from,” see App.R. 3(D), and submitted a memorandum explaining
why he was unable to attach a copy of the judgment entry being appealed. See also
App.R. 41(A) (“The courts of appeals may adopt rules concerning local practice in their
respective courts that are not inconsistent with the rules promulgated by the Supreme
Court.”).
{¶15} Smith asserts no other argument as to why we should interpret Civ.R. 58(B)
to mean that the clerk must serve the parties in a civil action with notice of the judgment
and a copy of the court’s judgment. Accordingly, we conclude that Smith’s second
assignment of error is not well taken.
{¶16} In his first assignment of error, Smith contends that the trial court erred and
abused its discretion by denying his Civ.R. 60(B) motion for relief from judgment.
{¶17} “An appellate court reviews a decision on a Civ.R. 60(B) motion for abuse
of discretion.” State ex rel. Jackson v. Ohio Adult Parole Auth., 2014-Ohio-2353, ¶ 21.
{¶18} “On motion and upon such terms as are just, the court may relieve a party
or his legal representative from a final judgment . . . .” Civ.R. 60(B). “To prevail on a
motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has
a meritorious defense or claim to present if relief is granted; (2) the party is entitled to
relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion
is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1),
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(2) or (3), not more than one year after the judgment, order or proceeding was entered or
taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976),
paragraph two of the syllabus. “Should any prong of the standard for granting motions
brought under Civ.R. 60(B) be unsatisfied, relief shall be denied.” Argo Plastics Prods.
Co. v. Cleveland,
15 Ohio St.3d 389, 391 (1984), citing GTE Automatic at 151 (“these
requirements are independent and in the conjunctive, not the disjunctive”).
{¶19} Smith argues that the trial court should have granted his motion under
Civ.R. 60(B)(1) (“mistake, inadvertence, surprise or excusable neglect) and (B)(5) (“any
other reason justifying relief from the judgment”) because he was not served with a copy
of the trial court’s August 24, 2023 judgment entry, which prevented him from filing a
timely notice of appeal.
{¶20} “A trial court’s failure to give reasonable notice of the entry of a final
judgment may, in an appropriate case, provide a basis for granting relief under Civ.R.
60(B)(5) when the party seeking relief has lost its right of appeal due to the failure of
notice.” Baek v. Cincinnati, 43 Ohio App.3d 158, 158 (1st Dist. 1988); see also Ostanek
v. Ostanek,
2022-Ohio-2197, ¶ 20 (11th Dist.). Having concluded, however, that the clerk
was not required to serve Smith with a copy of the judgment entry and that he was not
precluded from filing a timely notice of appeal, Smith has not met his burden to establish
any reason justifying relief from the judgment.
{¶21} Moreover, Civ.R. 60(B) generally does not permit a trial court to vacate and
then reenter a judgment for the sole purpose of allowing an otherwise untimely appeal.
See Rose v. Rose, 23 Ohio App.2d 201, 202 (1st Dist. 1970); accord Steadley v.
Montanya,
67 Ohio St.2d 297, 299 (1981) (“Civ.R. 60(B) may not be used as a substitute
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for a timely appeal or to accommodate a party by extending the normal period for
appeal.”).
{¶22} Smith has not demonstrated that it was an abuse of discretion for the trial
court to deny his Civ.R. 60(B) motion. We therefore conclude that his first assignment of
error has no merit.
{¶23} For the reasons provided in this opinion, the judgment of the Portage
County Court of Common Pleas is affirmed.
JOHN J. EKLUND, J.,
EUGENE A. LUCCI, J.,
concur.
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