Miller v. Miller
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[Cite as Miller v. Miller, 2009-Ohio-4455.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO MURRAY A. MILLER, et al., Plaintiffs-Appellants, : MEMORANDUM OPINION : CASE NO. 2009-T-0061 - vs - : SAM M. MILLER, et al., Defendants-Appellees. : : Civil Appeal from the Court of Common Pleas, Case No. 2003 CV 433. Judgment: Cross-appeal dismissed. Charles L. Richards, Law Office of Charles L. Richards, Hunter s Square, 8600 East Market Street, #1, Warren, OH 44484-2375, and Marshall D. Buck, Comstock, Springer & Wilson, 100 Federal Plaza East, #926, Youngstown, OH 44503-1811 (For Plaintiffs-Appellants). Michael N. Unger, Ulmer & Berne, L.L.P., 1100 Skylight Office Tower, 1660 West Second Street, Cleveland, OH 44113 (For Defendant-Appellee, Samuel M. Miller). Randil J. Rudloff, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box 4270, Warren, OH 44482 (For Defendant-Appellee, Daniel R. Umbs). COLLEEN MARY O TOOLE, J. {¶1} On June 22, 2009, appellants, Murray A. Miller and Sam H. Miller, filed a notice of appeal from a May 29, 2009 entry of the Trumbull County Court of Common Pleas. Appellee, Samuel M. Miller, filed his cross-appeal on July 6, 2009. {¶2} Under App.R. 4(B)(1), appellee had the option of filing his cross-appeal within ten days of appellants filing their notice of appeal, or the traditional thirty-day window created by App.R. 4(A). Pursuant to the foregoing rules, the latest that appellee could have filed his cross-appeal was July 2, 2009. The record in this matter indicates that appellee filed his cross-appeal with this court on July 6, 2009, four days beyond the required time limit of App.R. 4(B)(1). The time requirements for filing a cross-appeal pursuant to App.R. 4(A) are mandatory and jurisdictional. Kaplysh v. Takieddine (1988), 35 Ohio St.3d 170. See, also, Kirkhart v. Keiper, 11th Dist. No. 2001-P-0069, 2002-Ohio-6472, at ¶2. As a result, this court cannot address the merits of appellee s untimely cross-appeal as it lacks jurisdiction under App.R. 4(A). {¶3} Based upon the foregoing analysis, the cross-appeal is hereby, sua sponte, dismissed for untimeliness. However, the appeal filed by appellants can proceed. {¶4} Cross-appeal dismissed. DIANE V. GRENDELL, J., TIMOTHY P. CANNON, J., concur. 2
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