Discover Card v. Smith
Annotate this Case
Download PDF
[Cite as Discover Card v. Smith, 2007-Ohio-892.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO DISCOVER BANK, Plaintiff-Appellee, : MEMORANDUM OPINION : CASE NO. 2006-T-0129 - vs - : DARLINDA SMITH, : Defendant-Appellant. : Civil Appeal from the Court of Common Pleas, Case No. 05 CV 1520. Judgment: Appeal dismissed. John J. Frank, Javitch, Block & Rathbene, Pention Building, 14th Floor, 1300 East Ninth Street, Cleveland, OH 44114 (For Plaintiff-Appellee). Darlinda Smith, pro se, 2947 State Route 5, Leavittsburg, OH 44430 (For DefendantAppellant). COLLEEN MARY O TOOLE, J. {¶1} On December 21, 2006, appellant, Darlinda Smith, filed a notice of appeal from the November 20, 2006 judgment entry of the Trumbull County Court of Common Pleas. Thus, appellant s notice of appeal was filed thirty-one days after the judgment had been issued by the trial court. Appellant s notice of appeal was due on Wednesday, December 20, 2006, which was not a holiday or a weekend. {¶2} App.R. 4(A) states that: {¶3} 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 rule period in Rule 58(B) of the Ohio Rules of Civil Procedure. {¶4} Loc.R. 3(D)(2) of the Eleventh District Court of Appeals provides: {¶5} In the filing of a Notice of Appeal in civil cases in which the trial court clerk has not complied with Ohio Civ.R. 58(B), and the Notice of Appeal is deemed to be filed out of rule, appellant shall attach an affidavit from the trial court clerk stating that service was not perfected pursuant to Ohio App.R. 4(A). The clerk shall then perfect service and furnish this Court with a copy of the appearance docket in which date of service has been noted. Lack of compliance shall result in the sua sponte dismissal of the appeal under Ohio App.R. 4(A). (Emphasis sic.) {¶6} Here, appellant has not complied with the thirty-day rule set forth in App.R. 4(A) nor has appellant alleged that there was a failure by the trial court clerk to comply with Civ.R. 58(B). The time requirement is jurisdictional in nature and may not be enlarged by an appellate court. State ex rel. Pendell v. Adams Cty. Bd. of Elections (1988), 40 Ohio St.3d 58, 60; App.R. 14(B). {¶7} Accordingly, this appeal is dismissed sua sponte pursuant to App. R. 4(A). DIANE V. GRENDELL, J., MARY JANE TRAPP, J., concur. 2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
