Kuss v. Clements
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[Cite as Kuss v. Clements, 2012-Ohio-3641.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO CHERI KUSS, Petitioner-Appellee, : MEMORANDUM OPINION : CASE NO. 2012-P-0051 - vs - : THOMAS JASON CLEMENTS, Respondent-Appellant. : : Civil Appeal from the Court of Common Pleas, Case No. 2010 CV 0904. Judgment: Appeal dismissed. Cheri Kuss, pro se, 4396 Edson Road, Kent, OH 44240 (Petitioner-Appellee). Thomas Jason Clements, pro se, 1410 Brookdale Lane, Kent, OH (Respondent-Appellant). 44240 DIANE V. GRENDELL, J. {¶1} This matter is before this court on the pro se motion of appellant, Thomas Jason Clements, for leave to file a delayed appeal. Along with his motion, appellant filed his notice of appeal on May 18, 2012. Appellant is appealing the trial court s November 30, 2011 judgment, overruling his motion to vacate an ex parte civil protection order. Thus, appellant s appeal was filed approximately five months after the trial court s judgment. No response in opposition was filed. {¶2} By way of background, on June 8, 2010, appellee, Cheri Kuss, filed a petition for a civil protection order, which was granted on November 29, 2010. On November 23, 2011, appellant filed a motion to vacate judgment. The trial court overruled appellant s motion on November 30, 2011. No appeal was filed within 30 days from that judgment. {¶3} On January 9, 2012, appellant filed a motion to reconsider the November 30, 2011 entry. The trial court overruled appellant s motion on February 1, 2012. On February 27, 2012, appellant filed a pro se notice of appeal with this court, Case No. 2012-P-0023. {¶4} On April 16, 2012, this court dismissed the appeal for lack of a final appealable order. Kuss v. Clements, 11th Dist. No. 2012-P-0023, 2012-Ohio-1678, ¶6. We held that the trial court s February 1, 2012 judgment overruling appellant s motion for reconsideration is a nullity and cannot properly be appealed. Id. at ¶4. We further held that the filing of a motion for reconsideration does not extend the time for filing an appeal from a final judgment. Id. at ¶5. {¶5} Presently before us is appellant s May 18, 2012 pro se motion for leave to file a delayed appeal from the trial court s November 30, 2011 judgment to once again appeal the trial court s overruling of his motion to vacate the ex parte civil protection order. {¶6} App.R. 5(A) provides, in relevant part: {¶7} (1) After the expiration of the thirty day period provided by App.R. 4(A) for the filing of a notice of appeal as of right, an appeal may be taken by a defendant with leave of the court to which the appeal is taken in the following classes of cases: 2 {¶8} (a) Criminal proceedings; {¶9} (b) Delinquency proceedings; and {¶10} (c) Serious youthful offender proceedings. {¶11} In this case, the judgment entry being appealed is not from a criminal, delinquency, or serious youthful offender proceeding. Rather, the judgment being appealed was generated from the granting of a civil protection order. Appellant s attempt to utilize App.R. 5(A) to extend his time to file a notice of appeal beyond the 30day time limit provided for in App.R. 4(A) is ineffective because App.R. 5(A) may be utilized only to extend the time to file a notice of appeal from a judgment issued from a criminal, delinquency, or serious youthful offender proceeding. See Vale Edge, Inc. v. Simms, 11th Dist. No. 98-P-0124, 1999 Ohio App. LEXIS 4320, *2-3 (Feb. 12, 1999). {¶12} Accordingly, it is ordered that appellant s motion for leave to file a delayed appeal is hereby overruled as not being applicable to this matter. {¶13} Appeal dismissed as untimely. CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., concur. 3
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