Opposition Brief — Zerovnik v. E. F. Hutton & Co.

¢ su pi sme court, vs.

{ ottice p | ED |

No. 84-1056 JAN 20 1985

RLPXANDERL STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

PAUL R. ZEROVNIK

Petitioner,

*

E. F. HUTTON AND CO., INC.,

RICHARD BROWN AND PHYLLIS BENJAMIN

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF OHIO

BRUCE P. MANDEL, ESQ.

ULMER, BERNE, LARONGE,

GLICKMAN & CURTIS

900 Bond Court Building

Cleveland, Ohio 44114

216/621-8400

Counsel for Respondents

January 29, 1985

No. 84-1056

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

PAUL R. ZEROVNIK

Petitioner,

Vv.

E. F. HUTTON AND CO., INC.,

RICHARD BROWN AND PHYLLIS BENJAMIN

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF OHIO

BRUCE P. MANDEL, ESQ.

ULMER, BERNE, LARONGE,

GLICKMAN & CURTIS

9090 Bond Court Building

Cleveland, Ohio 44114

216/621-8400

Counsel for Respondents

January 29, 1985

HREER ER ERE RSRSSSEEEE

TABLE OF CONTENTS

PAGE NO.

TABLE OF AUTHORITIES. . ... . iv-viii

_CIVIL/APPELLATE/LOCAL

RULES INVOLVED... ..... . ix-xviii

COUNTER-STATEMENT

OF THE CASE * * . « e es * . 7 = 1

REASONS FOR NOT

GRANTING THE WRIT. ......8

I. NOTICE OF THE TRIAL COURT

RULING WAS CLEARLY ADEQUATE

AND IN FULL COMPLIANCE WITH

ALL CIVIL AND LOCAL RULES OF

COURT, THUS UNDERMINING THE

PURPORTED PREMISE FOR

PETITIONER'S APPEAL. . .. 8

II. THERE IS NO CONSTITUTIONAL

RIGHT TO AN APPEAL OR TO

ACTUAL NOTICE OF A FINAL

JUDGMENT . - © © © © © « e il

A. Failure To Provide Mailed

Notice Of A Judgment

Entry, Properly

Journalized And

Published In Accor-

dance With State And

Local Rules Of Court,

Does Not Result In A

Denial Of Due Process

Or Any Purported Con-

stitutional Safe-

OUMEGB ss se ee 8 12

~~

TABLE OF CONTENTS

PAGE NO.

There Is No Constitu-

tionally Guaranteed Right

To Access To An Appellate

Court, And Petitioner

Suffered No Due Process

Infringement Because Of

His Failure To Perfect

An Appeal Of An Adverse

Trial Court Ruling In

Thies ClWAL BOCEOR 2. ee el wlC8

The State Court Rulings

On Ohio Civil Rule 60 Bar

An Appeal On Any Grounds,

Have No Constitutional

Overtones And, In Any Case,

were Ceereme, . 2 6 ee el ehCUSD

1. Petitioner's Motion

For Relief Was Not

Filed Within A Reascn-

able Time As Required

By Civil Rule 60(B),

Thus Precluding Any

Appeal. . . . +. ++. - 32

2. Ohio Civil Rule 60 (A)

Authorizes Only The

Correction Of Clerical

Mistake In Judgments

Or On The Record,

And Not Substantive

Changes, Such As The

Vacation Of Judgments . 35

TABLE OF CONTENTS

PAGE NO.

3. Civil Rule 60(B)

Does Not Warrant

The Granting Of A

Motion For Relief

From Judgment For

The Purported Failure

To Receive A Non-

Mandatory Postcard

From The Clerk Of

Courts Where An Entry

Was Properly Journal-

ized And Published

In Accordance With

The Civil Rules And

Local Rules of

Be ee ee ee

CONCLUSION... ...-++.+-+- 46-48

CERTIFICATE OF SERVICE. .... 49

a ery

(Cleveland) Daily Legal News,

March 1, 1983

~lii-

TABLE OF AUTHORITIES

CASES

Americare Corp. v. Misenko,

10 Ohio St. 3d 132 (1984)

Baggett v. Baggett, 541 S.W.2d

407 (Tenn. Sup. Ct. 1976). .

Bershal v. McDonough, 469 F.2d

A3Se UlEM CARs BUTE e & ae a

Boddie v. Connecticut, 401 U.S.

37k Castells «4% & & 8X -* Oe

Bosco v. Euclid, 38 Ohio App.2d

40 (Cuy. App. 1974) . . « « « «

Brown v. Allen, 344 U.S.

G45 C(i¥aels« «+ «© &© © © * &o em

City of New York v. New York,

New Haven & Hartford R.R. Co.,

344 U.8. 283 (4333) «¢ « © 2 + *

Cranman Insurance Agency v.

Wilson Marine Sales & Service,

Inc., 249 S.E.2d 631 (Ga.

App. 1978). . . . « « «© « «© « »

Cunnius v. Reading School

District, 198 U.S. 458

(L904). . « © © «© © © © © © fe

DeWitt v. Pail, 366 F.2d 682

(9th Cir. 1966) ....-+-. ss

GTE Automatic Electric v. ARC

Industries, 47 Ohio St.2d

1 1976) a a ee ee ee ee

Griffin v. Illinois, 35l U.S.

I> (1956)... . . swe eee

18

19, 25,

17

28

33

27-28

PAGE NO.

10, 14-16

41

18

38

28

16

32

TABLE OF AUTHORITIES

CASES (cont.) PAGE NO.

Hess v. Pawloski, 274 U.S.

fe go i ne: a

Hortonville Joint School

District No. 1 v. Hortonville

Education Association, 426

oF Sie - aoe! 2. | ae. ©

In re Marginean, 87 Ohio L. Abs.

gi6 (Oey. App. 1961) .. «ss. 5

International Controls Corp.

v. Vesco, 556 F.2d 665 (7th

Cabs GPeT) © se te eeeusiane

Johnson v. Avery, 393 U.S. 483

4 jr a aee e e ee

Kiss v. Allstate Insurance Co.,

10 Ohio App.3d 238 (Cuy. App.

1983). . © e ° > e ” - 7 o . 16

Knapp v. Cardwell, 667 F.2d 1253

(9th Cir. 1982) cert. denied,

459 0.8. 1055 ti96e) « » & « + O80

LePoy v. Figure Skating Club

Of Minneapolis, 162 N.W.2d 248

(Sup. Ce. ame. 29GGF. ws 2 ee (OU

Lopez v. Allied Concord

Financial Corporation, 481

P.2d 700 (Sup. Ct. N.M.

SUras «© 6 6 8 #@ 6% 6 6 6 4 «Oe

McCue v. Buckeye Union In-

Surance Co., 61 Ohio App.2d

101 {Cuy. App. 1979) ..... #5

-V=

TABLE OF AUTHORITIES

CASES PAGE NO.

McKane v. Durston, 153 U.S.

en Seen 4 ee vat be Cero t eto. rae

Mennonite Board of Missions v.

Adams, 462 U.S. 791 (1983) .. 18

Metron Steel Corp. v. Alby Mfg.,

Inc., 194 N.W.2d 608 (Sup. Ct.

ames BEIG)« 6 os «- 88 & = «0-88

Miller v. B & O Southwe stern

Railroad Company; 78 Ohio St.

309 (1908) .. "al 98 a tee De 2

Milliken v. Meyer, 311 U.S. 457

[eeeer 3 4 6-6 Sow avers & ee «647

Mullane v. Central Hanover Bank

and Trust Company, 339 U.S. 306

Pn ee ee ae cere eee ee er “ee

Musca v. Village of Chagrin

Falls, 3 Ohio App.3d 192,

syllabus 1 (Cuy. App. 1981). ~- 36-37

Ortwein v. Schwab, 410 U.S.

Bit ys) ee

Person v. Gum, 7 Ohio App.3d

7ar Sets Bex BOee) « -« oe « 2

Rose v. Rose, 23 Ohio App.2d

201 (Butler App. 1970) .... 16

Schroeder v. City of New

Woeks Sth Uso 206 CapGel. «s+ 1D

TABLE OF AUTHORITIES

CASES (Cont.)

Security Insurance Company v.

Regional Transit Authority,

4 Ohio App.3d 24 (Cuy. App.

Beees 6 6 6408 2d we oO eS

State, ex rel. Pajestka v.

Faulhaber, 50 Ohio St.2d 41

$4 yo 2 PP eee Oe ee ee

Steadley v. Montanya, 67 Ohio

St.2d 29/7 (1981). bays

Town and Country Drive-In

Shopping Center, Inc. v.

Abraham, 46 Ohio App.2d 262

(Frank. App. 1975). ie

U.S. Ex Rel Mayberry v. Prasse,

225 F. Supp. /52 (E.D. Pa.

ee a a ee ee a ee

United States v. Kras, 409 U.S.

34° (1973). .« « « »

Wagner v. United States, 316

F.2d 8/71 (2nd Cir. 1963). .

Weisser v. Otter Tail Power

Ci. . JA0 Freee. 212 (eee Gar»

ee? 6 a: a ek ae aoe ee.

Wilson v. Atwood Group, 702

Foaa 71 (3GR Cad. L983} 2 «

“Vii-

PAGE NO.

33

36-37

41-42

Aa¢ 6a

43

28

26, 29-

30

23

2

23, 34

TABLE OF AUTHORITIES

RULES

Ohio Rule of Appellate

Procedure 4 (A) .

Ohio Rule of Civil Pro-

GeeTe Bese. «ce oe 6 ee

Cuyahoga County Common Pleas

Court Rule 19 (A)

Federal Rule of Civil

Proceacure 7F7(G)« « « «© «es

Ohio Rule of Civil Pro-

cedure 60(A).. ;

Ohio Rule of Civil Pro-

cedure 60(B) P

-viii-

PAGE NO.

- xii-xiii,

a

- Xiv-XV,

21-22

xvi, 4,

31, 35-43

- xVii-xviii,

4, 6, 25,

She 33%

37-38, 40,

43-44

OHIO RULE OF APPELLATE PROCEDURE 4 (A)

APPEAL AS OF RIGHT - WHEN TAKEN

(A) Appeals in civil cases. In

a civil case the notice of appeal re-

quired by Rule 3 shall be filed with the

clerk of the trial court within thirty

days of the date of the entry of the

judgment or order appealed from. A

notice of appeal filed before entry of

such judgment or order shall be treated

as filed after such entry and on the day

thereof. If a timely notice of appeal

is filed by a party, any other party

may file a notice of appeal within ten

days of the date on which the first

notice of appeal was filed, or within

the time otherwise prescribed by

this subdivision, whichever period last

expires.

The running of the time for filing a

notice of appeal is suspended as to

all parties by a timely motion fiied in

the trial court by any party pursuant to

the Civil Rules hereafter enumerated in

this sentence, and the full time for

appeal fixed by this subdivision commences

to run and is to be computed from the

entry of the last of any of the following

orders made upon a timely motion under

such rules granting or denying a motion

(1) for judgment under Rule 50(B); (2)

for a new trial under Rule 59. A

judgment or order is entered within the

meaning of this subdivision when it is

filed with the clerk of the trial court

for journalization.

-xX~=—

OHIO RULE OF CIVIL PROCEDURE 58

ENTRY OF JUDGMENT

Subject to the provisions of Rule

54(B), upon a general verdict of a jury,

Or upon a decision announced, the court

shall promptly cause the judgment to be

prepared and, the court having signed it,

the clerk shall thereupon enter it. A

judgment is effective only when filed

with the clerk for journalization. Entry

of the judgment shall not be delayed for

the taxing of costs.

Amended July 1, 1971.

CUYAHOGA COUNTY COMMON PLEAS COURT

RULE 19 (A)

JOURNAL ENTRIES

(A) When ordered or directed by

the court, counsel for the party in whose we

favor a calendar entry, order, judgment

Or decree is entered in a cause in Civil

Or Domestic Relations Divisions shall,

within ten (10) days thereafter unless

the time be extended by the court, pre-

pare a proper journal entry and submit

the same to counsel for the opposite

party who shall approve or reject the

same within three (3) days after its

receipt by him and may, in case of

rejection, file objections thereto in

writing with the court.

The judgment entry specified in

Ohio Civil Rule 58 shall be journalized

within thirty (30) days of the verdict,

decree or decision. If such entry is

not prepared and presented for

-xii-

journalization by counsel, then it shall

be prepared and journalized by the court.

In all cases where a final title

report is required, the above mentioned

(10) days relative to journal entries

shall commence from the date the final

title report is filed.

The court shall approve a journal

entry deemed by it to be proper, sign the

same and cause it to be filed with the

Clerk, and notice of the filing of each

journal entry for journalization shall,

on the day following such filing, be

published in the Daily Legal News.

-xiii-

FEDERAL RULE OF CIVIL PROCEDURE 77 (d)

DISTRICT COURTS AND CLERKS

(d) Notice of Orders or Judgments.

Immediately upon the entry of an order

Or judgment the clerk shall serve a

notice of the entry by mail in the manner

provided for in Rule 5 upon each party

who is not in default for failure to

appear, and shall make a note in the

docket of the mailing. Such mailing is

sufficient notice for all purposes for

which notice of the entry of an order is

reguired by these rules; but any party

may in addition serve a notice of such

entry in the manner provided in Rule 5

for the service of papers. Lack of

notice of the entry by the clerk does

not affect the time to appeal or relieve

or authorize the court to relieve a

party for failure to appeal within the

time allowed, except as permitted in

-xiv-

Rule 4(A) of the Federal Rules of

Appellate Procedure.

OHIO RULES OF CIVIL PROCEDURE 60 (A)

RELIEF FROM JUDGMENT OR ORDER

(A) Clerical mistakes. Clerical

mistakes in judgments, orders or other

parts of the record and errors therein

arising from oversight or omission may be

corrected by the court at any time on its

own initiative or on the motion of any

party and after such notice, if any, as

the court orders. During the pendency of

an appeal, such mistakes may be so

corrected before the appeal is docketed

in the appellate court, and thereafter

while the appeal is pending may be so

corrected with leave of the appellate

court.

-xvi-

See eee ee ee ee

OHIO RULE OF CIVIL PROCEDURE 60 (B)

RELIEF FROM JUDGMENT OR ORDER

(B) Mistakes; inadvertence;

excusable neglect; newly discovered

evidence; fraud; etc. On motion and

upon such terms as are just, the court

may relieve a party or his legal repre-

sentative from a final judgment, order or

proceeding for the following reasons:

(1) mistake, inadvertence, surprise or

excusable neglect; (2) newly discovered

evidence which by due diligence could not

have been discovered in time to move for

a new trial under Rule 59(B); (3) fraud

(whether heretofore denominated intrinsic

or extrinsic), misrepresentation or

other misconduct of an adverse party;

(4) the judgment has been satisfied,

released or discharged, or a prior

judgment upon which it is based has been

reversed or otherwise vacated, or it

-xvii-

is no longer equitable that the judgment

should have prospective application; or

(5) any other reason justifying relief

from the judgment. The motion shall be

made within a reasonable time, and for

reasons (1), (2) and (3) not more than

one year after the judgment, order or

proceeding was entered or taken. A

motion under this subdivision (b) does

not affect the finality of a judgment

Or suspend its operation.

The procedure for obtaining any

relief from a judgment shall be by

motion as prescribed in these rules.

-xVviii-

ae eee eee eekaeaBeanane

COUNTER-STATEMENT OF THE CASE

Petitioner filed this lawsuit against

E. F. Hutton and Company, Inc., Richard

Brown, and Phyllis Benjamin (hereinafter

"respondents") alleging negligent conduct

by the respondents, on or about April 10,

1979, in reporting to petitioner that

certain checks, concerning the sale of

stock options, had been erroneously

issued to him and would be reissued in

the correct amounts. Petitioner alleges

that as a result, he became mentally

distraught, which led to an irregular

heart beat requiring hospitalization.

Respondents thereafter filed a

Joint Motion for Summary Judgment.

Respondents urged, in their Motion, two

independent bases mandating judgment as

a matter of law, namely (1) that their

actions failed to demonstrate the

requisite willful or malicious conduct

necessary, under existing Ohio law, as

“aa

a condition precedent for claims of

emotional distress (Miller v. B & O

Southwestern Railroad Company, 78 Ohio

St. 309 (1908)), and (2) that, in any

case, petitioner's purported injury

was not reasonably foreseeable, one of

the xey elements of any negligence

claim. Person v. Gum, 7 Ohio App.3d

307 (Cuy. App. 1983); Weisser v. Otter

Tail Power Co., 318 F.2d 375, 377 (8th

Cir. 1963). The trial court granted

respondents' Motion for Summary Judgment

on February 28, 1983, without any

written opinion. (See petitioner's

Appendix 1, hereinafter "Pet.'s App.

1"). On March 1, 1983 the Clerk of Courts

filed a Journal Entry confirming the

ruling (Id.), as required by Ohio Civil

Rule 58 (p.xi, supra). Notice of the

ruling also appeared in the (Cleveland)

Daily Legal News, March 1, 1983 (App.

1), pursuant to Cuyahoga County Common

-2=

SSeSeEeEeeBpEe@BpBauamawaawzas

Pleas (Local) Rule of Court 19(A).

(p. xii, supra).

The Central Scheduling Office of

the Common Pleas Court also issued post-

cards to counsel announcing the ruling.

Petitioner's counsel's postcard was

purportedly received on April 19, 1983.

(Pet.'s App. 16). Unlike the filing of

a Journal Entry (Ohio Civil Rule 58)

and the publication of the same in the

(Cleveland) Daily Legal News (Local

Court Rule 19(A)), there is no mandate

or rule in Ohio or Cuyahoga County

requiring postcard notice of judgments,

said notice being merely a courtesy.

In this connection, Ohio Appellace Rule

4(A) (p. ix, supra) strictly provides that

a Notice of Appeal must be filed "with-

in thirty days of the date of the

entry of judgment", equally leaving to

all attorneys, the responsibility to

follow the progress of their cases through

o3=

the Court docket and/or the Daily

Legal News.

Petiticner filed, on July 1, 1983,

approximately two and one-half months

following receipt of the postcard

ruling, a Motion for Relief from

Judgment pursuant to Ohio Rules of

Civil Procedure 60(A) and/or (B) (5)

(pp. xvi-xviii, supra), due to the

Clerk of Court's alleged “clerical

error” in issuing to him a late notice.

Petitioner asked the trial court to

vacate its February 28, 1983 order and

to enter an order denying respondents’

Joint Motion for Summary Judgment,

or, alternatively, to vacate and then

re-enter the order to reinstate

petitioner's thirty day appeal period.

The trial court granted the

exact (alternate) relief requested by

petitioner. The court vacated its

February 28, 1983 order due to "clerical

o4=

error" (Pet. App. 2), and then immedi-

ately reinstated its original ruling,

granting respondents’ Motion for Summary

Judgment as of August 10, 1983 (Pet.

App. 3), clearly for the purpose of re-

instating petitioner's thirty day appeal

period.

The Court of Appeals, properly

finding that the trial court had abused

Civil Rule 60, reversed the trial court,

reinstated the trial court's original

February 28, 1983 ruling, and dismissed

petitioner's appeal, pursuant to Ohio

Appellate Rule 4(A), for lack of juris-

diction due to petitioner's untimely

filing of a Notice of Appeal. (The

complete text of the Court of Appeals’

Opinion is set forth as App. 4-24 in

petitioner's Brief in support of his

Petition for Writ). The Court of

Appeals held that a

athe

“party's failure to be aware

of a properly journalized and

published judgment does not

justify vacation of that

judgment...[{since one] who

relies solely on local customs,

such as the mailing of a notice,

rather than the procedures set

out by either the Ohio Rules of

Civil Procedure or the local

rules of court, does so at

his own peril". (Pet. App.

12-13).

The Court of Appeals also determined that

petitioner's Motion for Relief had not been

filed within "a reasonable time”, pur-

Ssuant to Ohio Civil Rule 60(B). (Pet.

App. 15-16). The Ohio Supreme Court

refused to hear petitioner's appeal.

The following discussion will

demonstrate that the Ohio Court of

Appeals' decision was in conformity with

well-reasoned, long-standing, and uni-

form legal precedent; that not only Ohio

but other states and the Federal

judiciary have likewise chosen, in

the concern for judicial efficiency and

the need for finality, not to relate,

-6-

7

:

to the time for appeal, actual mailed

notice of a final trial court ruling;

and that petitioner has not cited one

case holding said rule of law unconsti-

tutional. There is, in addition, no

conflict concerning or important question

of federal law involved here, mandating

the denial of petitioner's Petition

for Writ of Certiorari.

REASONS FOR NOT GRANTING THE WRIT

I. NOTICE OF THE TRIAL COURT RULING

WAS CLEARLY ADEQUATE AND IN FULL

COMPLIANCE WITH ALL CIVIL AND

LOCAL RULES OF COURT, THUS

UNDERMINING THE PURPORTED PREMISE

FOR PETITIONER'S APPEAL

The sole basis for petitioner's

appeal is the purported inadequate notice

of the trial court's ruling, granting

respondents’ Motion for Summary Judgment.

However, the authorities cited by

petitioner involve either no notice

prior to default judgment, or publication

Or inadequate notice of the original

filing of an action. The instant action

involves parties who had written Briefs

supporting and opposing, respectively,

respondents’ Motion for Summary Judg-

ment, and were thus clearly knowledge-

able of the pendency of the action,

brought by petitioner, and that a ruling,

that could "end" the case, would be

forthcoming shortly.

=Qu

a

ni

3

n

"

n

"

"

ii

The ruling ensued, and was

properly placed on the Court Docket

(Pet. App. 1) in accordance with Ohio

Civil Rule 58, and was published the

following day in the (Cleveland) Daily

Legal News, a newspaper containing daily

notices of judicial and statutory rulings

of primary import to attorneys, in

accordance with Local Court Rule 19(A).

(App. 1). The publication included the

Judge's name, the case number and name--

"Zerovnik v. E.F. Hutton Co." -- and

the disposition of the case. Petitioner

maintains that his attorney's name was

"missing", thus making the notice "faulty”

(and indeed, in violation of the United

States Constitution).

The Ohio Court of Appeals thought

otherwise (Pet. App. 11-14) and the

Ohio Supreme Court refused to review the

matter, for good reason. There was

notice, in the exact manner prescribed by

-9-

law in this State and County, for final

journal entries. That petitioner's

counsel failed to follow the progress of

his case, in order to perfect an appeal,

does not raise any constitutional

questions. Moreover, the adequacy of the

notice, which was far more than required

(See Americare Corp. v. Misenko, 10 Ohio

St.3d 132 (1984); (Pet. App. 10-15)), is

clearly not an issue in which to burden

this Honorable Court.

-10-

an

0

n

7

R

a

"

F

"

.

a

"

:

II. THERE IS NO CONSTITUTIONAL RIGHT

TO AN APPEAL OR TO ACTUAL NOTICE

OF A FINAL JUDGMENT

Regardless of the adequacy of the

notice of the trial court ruling,

petitioner's Brief in support of his

Petition is wholly without merit and

incorrect, since there is no constitu-

tional right to an appeal nor to actual

notice of a final judgment entry in

order to perfect the same. Moreover,

petitioner's purported authority (pre-

judgment attachments; condemnation pro-

ceedings; tax foreclosure sales, etc.)

is not only totally inapposite and in-

applicable to this action, but involves

primarily original notice of the filing

of an action, unlike the situation at

hand. That petitioner was not entitled

to actual notice of the journal entry

is clear under Ohio law and supported by

other States as well as the Federal

judiciary. There was no constitutional

«43

infringement here -- petitioner had his

day in Court, with a full opportunity to

be heard, and lost.

A. Failure To Provide Mailed Notice

Of A Juagment Entry, Properly

Journalized And Published In

Accordance With State And Local

Rules Of Court, Does Not Result

In A Denial Of Due Process Or

Any Purported Constitutional

Saftequards

Petitioner's claim of being denied

a constitutional right is totally un-

founded and contrary to Ohio law, as well

as foreign State and Federal law and/or

rules, and petitioner has failed to

support his theory with any relevant

authority. Ohio Appellate Rule 4(A) man-

dates the filing of a notice of appeal

within 30 days of "the entry of judgment”.

Though cleverly masked, petitioner is

attempting to characterize this rule as

unconstitutional, since it fails to pro-

vide for receipt of actual notice of

the entry before the expiration of the

appeal period. This exact issue was

-12-

"

met and properly rejected in Town and

Country Drive-In Shopping Center, Inc. v.

Abraham, 46 Ohio App.2d 262 (Frank. App.

1975):

"Syllabus by the Court

There is no requirement under

the Ohio Rules of Civil Pro-

cedure to give a party to an

action notice of the filing

of the judgment and such a

failure does not deny him due

process of law."

* * *

"As to assignment of error no.

2, claiming that the denial of

the appellant's motion for

relief from judgment violates

its constitutional right of

due process of law under the

fourteenth Amendment of the

Constitution of the United

States we merely state that

all of the Ohio Rules of Civil

Procedure, as well as the Ohio

Rules of Appellate Procedure, have

been promulgated and lawfully

enacted in the State of Ohio

pursuant to Section 5(b),

Article IV of the Ohio Con-

stitution, and the aspects of

due process and their appli-

cation have been considered."

46 Ohio App.2d at 268.

-13-

Further, the Ohio Supreme Court in

Americare Corp. v. Misenko, 10 Ohio St.3d

132 (1984) recently upheld the dismissal

of a notice of appeal that was not timely

filed, despite the identical argument

being raised by that plaintiff. The

plaintiff in that case also argued that

because it had not received actual notice

of the judgment entry, as here, it was

"denied the opportunity to timely appeal

and the dismissal of the notice of

appeal was hence unconstitutional as

being violative of due process and

equal protection". 10 Ohio St.3d at 133.

The Court, however, rejected that

argument, holding that actual notice of

a judgment entry is not necessary in

Ohio, and that where a judgment entry is

properly journalized, the time period for

filing a notice of appeal should not be

tolled for lack of actual notice of the

same. Declared the Supreme Court of

-l4~

S=2 FSF Ee BERR Buea wawtat-awtsS

Ohio at 10 Ohio St.3d 134:

"Furthermore, it is most

noteworthy that no provision

in Ohio law or rule of civil or

appellate procedure requires that

a party be given actual notice of

the filing of a judgment entry.

The procedure for appeal is

clearly set forth in the Rules

of Appellate Procedure. App.R.

3(A) requires that an appealing

party must file a Notice of

Appeal. The time period for

the filing of the notice of

appeal is set forth in App.R.4:

"(A) In a civil case

the Notice of Appeal

required by Rule 3 shall

be filed with the Clerk of

the trial court within

thirty days of the date

of the entry of the

judgment or order appealed

from. ***'

App.R.4(A) also pro-

vides that '***[a]

judgment or order is

entered within the meaning

of the subdivision when it

is filed with the clerk of

the trial court for

journalization.'

App.R.4(A) complements

Civ. R. 58, which provides

in part that '[a] judgment

is effective only when filed

with the clerk for journaliza-

tion. As evidenced by these

a} $<

rules, there are no provisions

in the Rules of Appellate Pro-

cedure that actual notice of

a judgment entry be given.

See, also, Steadley v.

Montanya (1981), 67 Ohio

St.00 a9? (21 0.0.30 167)."

(underscoring added).

Similarly, the Court in Kiss v.

Allstate Insurance Co., 10 Ohio App.3d

238 (Cuy. App. 1983) reiterated that:

",..there is no requirement

under the civil rules requiring

courts to serve copies of

final orders on the parties..."

(underscoring added),

and dismissed, as untimely, an appeal

instituted by a party who claimed, like

the petitioner here, lack of notice of

a final ruling. Accord: Bosco v.

Euclid, 38 Ohio App.2d 40 (Cuy. App.

1974); Rose v. Rose, 23 Ohio App.2d 201

(Butler App. 1970).

Petitioner's purported authority to

the contrary actually involves original

notices of actions or default judgments,

wholly inapplicable to this situation.

«l6=-

See eeeggBeuwtAa-a2ztzAzss

For example, in Milliken v. Meyer,

311 U.S. 457 (1940) this Court, in effect,

upheld the constitutionality of long-arm

jurisdiction. In Hess v. Pawloski, 274

U.S. 352 (1927) this Court similarly

upheld the constitutionality of a

statute authorizing service, on behalf of

a defendant, on a State's Registrar [of

Motor Vehicles], once the defendant had

driven on that State's highways. Again,

in Cunnius v. Reading School District,

1983 U.S. 458, 477 (1904), this Court

upheld the constitutionality of a state

statute authorizing service by publication

"for the administration of the estate

of an absentee. ...

Though this Court in Mullane v.

Central Hanover Bank and Trust Company,

339 U.S. 306 (1950) found general publica-

tion notice unconstitutional in that

case, that action involved a specific

=} Fe

New York statute concerning the notifica-:

tion necessary for trust companies to

judicially settle its accounts. This

Court was particularly concerned with an

interested party's right to:

"choose for himself whether to

appear or default, acquiesce or

contest,” 339 U.S. at 314,

and is inapposite here, since once again,

that case involved an original action.

Contrary to petitioner's assertions in

his Brief, Mullane does not require that

notice of judgments be given to parties,

but rather concerns only notice of pro-

ceedings, which petitioner clearly had

here. Similarly, numerous other cases

cited by petitioner, including Baggett v.

Baggett, 541 S.W.2d 407 (Tenn. Sup. Ct.

1976); City of New York v. New York, New

Haven & Hartford R.R. Co., 344 U.S. 293

(1953); Schroeder v. City of New York,

371 U.S. 208 (1962); and Mennonite

Board of Missions v. Adams, 462 U.S. 791

-18-

(1983), all involve original notice of

an action, unlike the case at bar, where

petitioner filed this lawsuit and was

duly represented throughout the pro-

ceedings.

The “bottom-line” is that peti-

tioner cited not one case holding that

notice of a judgment entry is necessary

to satisfy due process or other constitu-

tional concerns. Indeed, the law outside

Ohio is, like Ohio law, to the contrary.

Thus, in Cranman Insurance Agency

v. Wilson Marine Sales & Service, Inc.,

249 S.E.2d 631 (Ga. App. 1978), a case

arising out of a virtually identical

factual scenario as here, involving an

alleged mailing problem of notice of

a final order, and the vacation and re-

entering of a judgment for appeal pur-

poses, the Court held identically to

the decision rendered by the Ohio Court

of Appeals in the instant action:

-19-

",..{C)Jounsel were not entitled

to notice of entry of judgment

to start the 30-day period

running...

As has been consistently held,

‘the burden is on the party

desiring to take the appeal to

determine when the judgment is

filed in the trial court, and

the burden is on the party

desiring to appeal to file his

notice of appeal within the

30-day period... Filing of the

notice of appeal within 30 days

as required...is a mandatory

prerequisite to the attaching of

appellate court jurisdiction...

and it can not be dispensed with

upon the ground that counsel did

not know the order sought to be

appealed had been filed..."

249 S.E.2d at 632-33.

Likewise, see also, Lopez v. Allied

Concord Financial Corporation, 481 P.2d

700 (Sup. Ct. N.M. 1971); LeRoy v. Figure

Skating Club of Minneapolis, 162 N.W.2d

248 (Sup. Ct. Minn. 1968); and Metron

Steel Corp. v. Alby Mfg., Inc., 194 N.W.

2d 708 (Sup. Ct. Wisc. 1972). In none

of these cases was the failure of actual

notice of a judgment entry deemed, one

-20-

32 BS eeReHeEeeRBEB aS SB!

iota, to infringe on the constitutional

safeguards of any person.

Indeed, even Federal Rule of Civil

Procedure 77(d) (hereinafter "FRCP 77(d)")

(p. xiv, supra), though providing that

notice shall be served upon entry of an

order, further provides that:

"Lack of notice of the entry by

the clerk does not affect the time

to appeal or relieve or authorize

the court to relieve a party for

failure to appeal within the

time allowed..."

The corresponding 1946 Committee

Note To Amended Subdivision (d) provides,

in pertinent part:

"Rule 77(d) as amended makes it

clear that notification by the

clerk of the entry of a judgment

has nothing to do with the

starting of the time for appeal;

that time starts to run from the

date of entry of judgment and

not from the date of notice of

the entry. Notification by the

clerk is merely for the con-

venience of litigants. And lack

of such notification in itself

has no effect upon the time for

a al... It would, therefore,

= entirely unsafe for a party

-2l-

to rely on absence of notice

from the clerk of the entry

of a judgment..." (underscoring

added)

In the instant action, after the entry of

judgment, the entry was published in the

(Cleveland) Daily Legal News, as required

by Local Court Rule 19(A), an even greater

mandated notice than in FRCP 77(d),

since failure to comply with Local Court

Rule 19(A) would, in effect, toll the

applicable appeal period. (See Pet. App.

13-14). Moreover, the "custom" of

mailing notices was codified, in FRCP

77(d), aS a mere “convenience” -- not a

prerequisite for the beginning of the

appeal period. Thus, implicit in peti-

tioner's position is that not only Ohio

but other states following similar

doctrines, as well as FRCP 77(d), in

effect since 1946, must now be found

unconstitutional. Clearly, the logical

~-22-

and pragmatic reasons behind beginning

the appeal period upon entry of judgment

dictate otherwise.

Thus, in Wilson v. Atwood Group,

702 F.2a 77 (Sth Cir. 1983) the Court,

after discussing "the litigant's duty to

diligently ascertain the status of his

case without notification from the Clerk"

(702 F.2d at 79), dismissed the appeal of

a party who also failed to receive

notice of a final entry due to alleged

error in the Clerk of Court's office.

Declared the Court at 702 F.2d 80:

"Concerns of judicial efficiency

and the need to remove cases

from the Court's docket by

Simple rules without endless

review mandate that judgments

be final. We think the decision

was made by this 1946 amendment

[to FRCP 77(d)] to choose

SARALASY. as”

Accord: Wagner v. United States, 316

F.2d 871 (2nd Cir. 1963).

-23-

Indeed, if this Court strikes down

as unconstitutional Ohio Appellate Rule

4(A), and permits "late" appeals, not

based upon the "entry of judgment” but

rather upon receipt of "postcard notice",

as petitioner is really asking beneath

the rhetoric, then the onus for finality

on all future judgment entries will no

longer be on the parties or their counsel,

as presently properly constituted, but

rather on all Clerks of Courts. Numerous

courts, including the Federal judiciary

in promulgating and using the Federal

Civil Rules, have made and re-affirmed

sound policy judgments underlying the

decision that the onus should remain on

the parties to properly follow their

cases. The Courts do not want the

respective Clerks of Courts to become

embroiled in depositions and record

searches to determine when, and how, and

if a notice was mailed. And it is clear

-24-

that the Courts do not want trial courts

to continue the charade of perfunctorily

granting Civil Rule 60(B) Motions and

re-entering judgments as "substitutes

for appeal". Town & Country Drive-In

Shopping Center, Inc. v. Abraham, 46 Ohio

App.2d 262, 266-67 (Frank. App. 1975);

McCue v. Buckeye Union Insurance Co., 6l

Ohio App.2d 101 (Cuy. App. 1979);

Cranman Insurance Agency, supra.

Petitioner had a full and fair

opportunity to be heard before the trial

court rendered its judgment on

respondents’ Motion for Summary Judgment.

Subsequently, petitioner had the burden

to follow the progress of his own case,

a burden which he neglected. Accordingly,

petitioner's appeal was properly dis-

missed as late. There was no error and

no constitutional deprivation or issue

raised.

-25-

B. There Is No Constitutionally

Guaranteed Right To Access To An

Appellate Court, And Petitioner

Suffered No Due Process Infringe-

ment Because Of His Failure To

Perfect An Appeal On An Adverse

Trial Court Ruling In This Civil

Action

This Court has never found an

inherent right to appeal. Instead, this

Court has set forth a standard, based

upon whether fundamental rights are in-

volved, as to whether access to any court

is being deprived in an unconstitutional

manner. And, where access to a court is

not essential to the exercise of

fundamenta’ constitutional rights, as

here, the State will be free to allocate

access to the courts on any system or

classification which has a basis in

reason. See United States v. Kras, 409

U.S. 434 (1973), and Ortwein v. Schwab,

410 U.S. 656 (1973).

o26<

it anhneneeeBReeeeteaeEe EB sf

In this connection, this Court has

clearly held that access to appellate

process is not a constitutionally safe-

guarded right or privilege:

"An appeal from a judgment of

conviction is not a matter of

absolute right, independently

of constitutional or statutory

provisions allowing such appeal.

A review by an appellate court

of the final judgment in a

criminal case, however grave the

offense of which the accused is

convicted, was not at common law

and is not now a necessary element

of due process of law. It is

wholly within the discretion of

the state to allow or not to

allow such a review." McKane v.

Durston, 153 U.S. 867, 868

(1893).

* * *

",..[A] state is not required

by the Federal Constitution

to provide Appellate Courts or

a right to Appellate review at

aii.” Geiser Ws 2a.

351 U.S. id, 18 1900)

* * *

"This Court has long recognized

that, even in criminal cases,

due process does not require a

State to provide an appellate

system." Ortwein v. Schwab,

supra, 410 U.S. at 660.

27

This Court and others, however, have

upheld access to any court when a funda-

mental constitutional safeguard has been

abridged. See Boddie v. Connecticut, 401

U.S. 371 (1971) (filing fee for indigents

in divorce action held unconstitutional as

violative of constitutionally guaranteed

right of freedom of marital choice) ;

Griffin v. Illinois, supra, (States re-

guired to provide free transcription to

permit (timely) appeals for indigent pris-

oners whose liberty was at stake); and

DeWitt v. Pail, 366 F.2d 682 (9th Cir.

1966), Johnson v. Avery, 393 U.S. 483 (1969),

and U.S. Ex Rel Mayberry v. Prasse, 225 F.

Supp. 752 (E.D. Pa. 1963) (where, in all

three cases, prison officials confiscated

materials or barred personal contact

between innmates, physically and overtly

blocking the appeal route for persons

whose liberty, once again, was at stake).

Where the rights at stake, however, were

-28-

not fundamental, the access to any court

has not been deemed a matter of due

process, but rather one of reasonableness,

i.e., is the restriction or regulation

rationally premised. Thus, in United

States v. Kras and Ortwein v. Schwab,

supra, this Court upheld, respectively,

filing fees for (1) a bankruptcy petition

and (2) an appeal by a welfare recipient

whose benefits had been terminated. This

Court in Ortwein v. Schwab held that pro-

cedural due process,

"requires that a welfare

recipient be given a pre-

termination evidentiary

hearing..." 410 U.S. at

659-660.

Similarly, in the case at bar,

petitioner had his day in Court, and lost.

Certainly his right to an appeal, ina

case involving a claim for alleged

emotional distress arising out of the

sale of stock options, is of no greater

import than a welfare recipient's right to

-29-

an appeal based upon termination of welfare

benefits. In short, neither party can

claim loss, by lack of access to an

appellate court, of any fundamentally

protected rights, particularly the

petitioner, who is alleging negligence by

a brokerage firm causing him emotional

distress. Thus, the sole issue at hand

is whether the rule of law, requiring

attorneys to follow the progress of their

own case absent actual notice of final

judgment entries, has a rational basis.

Ortwein v. Schwab, and United States v.

Kras, Supra.

In view of the rationale set forth

above, involving the need for finality of

judgments, judicial efficiency, and the

great potential burden on Clerks of Courts

if this doctrine is altered, it is

manifest that the rule requiring attorneys

to follow the progress of their own cases,

properly and deeply rooted in American

=30=

jurisprudence, clearly has a rational

and reasonable basis. Thus, petitioner

clearly cannot meet his burden of

establishing any constitutional violations

in this case.

C. The State Court Rulings On Ohio

Civil Rule 69 Bar An Appeal On

Any Grounds, Have No Constitu-

tional Overtones And, In Any Case,

Were Correct

Petitioner's attempt to somehow

establish a constitutional infringement

based upon the Ohio Appeilate Court's

interpretation of Civil Rule 60 in this

case, is entirely without foundation.

Indeed, the fact that petitioner's Motion

for Relief was held to be untimely filed

(Pet. App. 15-16) precludes any appeal,

on constitutional or other grounds.

Moreover, the rulings concerning Ohio

Civil Rule 60(A) and (B) were clearly

correct.

«3)=

l. Petitioner's Motion for

Relief Was Not Filed Within

A Reasonable Time As Re-

guired By Civil Rule 60(B),

Thus Precludiag Any Appeal

The Court of Appeals properly held

that petitioner's Motion for Relief should

have been denied for untimeliness (Pet.

App. 14-15), thus precluding the within

appeal, regardless of the grounds, i.e.,

assuming arguendo the validity of peti-

titioner's claim of constitutional in-

fringements for not having received actual

notice of the final entry, petitioner

failed to timely seek relief from the

trial court after learning of the judgment

in favor of the respondents. Moreover,

the timeliness of a Civil Rule 60 Motion

for Relief clearly does not involve

sufficient grounds to merit this Court's

review, and is an issue best left to a

State court. See Brown v. Allen, 344 U.S.

443 (1952); Knapp v. Cardwell, 667 F.2d

1253 (9th Cir. 1982) cert. denied, 459

~32-

U.S. 1055 (1983); Hortonville Joint

School District No. 1 v. Hortonville

Education Association, 426 U.S. 482 (1976).

Viewing the merits, if necessary, it is

nonetheless clear that the Court of

Appeals properly decided this issue.

The Supreme Court of Ohio has set

forth three requirements which must be

demonstrated by a moving party in order

to prevail on a Rule 60(B) motion:

"(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..." GTE Auto-

matic Electric v. ARC Industries,

47 Ohio St.2d 146 (1976) (Syl. 2).

The third requirement necessitates a

showing by evidentiary material that the

Motion for Relief was made within a

reasonable time. See Security Insurance

Company v. Regional Transit Authority,

4 Ohio App.3d 24, 26 (Cuy. App. 1982).

o33e

Petitioner's two and one-half month

delay in filing his Motion for Relief was

properly determined not to constitute

a reasonable time period under the facts

of this case. Indeed, as the Court of

Appeals correctly held, even after

learning of the ruling on April 19, 1983,

petitioner waited two and one-half

months, with no explanation, to file his

Motion for Relief:

"Even assuming that [petitioner's]

argument regarding customary notice

is well taken, [petitioner] received

a postcard from the clerk's office

on April 19, 1983, notifying him

of the court's adverse ruling,

according to the affidavit of

James McNamara. Yet no action

was taken until July 1, 1983, ,

when [petitioner] filed his

motion for relief from judgment.

Under the circumstances, a two

and one-half month delay is not

reasonable. Moreover, no

explanation, evidentiary or

otherwise, was given for waiting

until July to file for relief.”

(Pet. App. 16).

See also Wilson v. Atwood Group, 702 F.2d

77 (5th Cir. 1983). ,

~34-

Accoracingl

y, petitioner has no basis

to urge any grounds for appeal, since

his original Mot

timely.

2. Ohio Civ

ion for Relief was un-

il Rule 60(A) Authorizes

Only The

Correction Of Clerical

Mistake

In Judgments Or The Record,

And Not

Substantive Changes,

Such As

The Vacation Of Judgments

The trial

tioner's Motion

by vacating its

and later reinst

so as to renew t

incorrect. Spec

court's apparent

court's granting of peti-

for Relief from Judgment

February 28, 1983 order

ating the identical order,

he time for appeal, was

ifically, the trial

reliance on Ohio Civil

Rule 60(A) was misplaced, legally un-

founded, and imp

Appeals properly

The law s

roper, as the Court of

determined.

clear that Ohio Civil

Rule 60(A) is applicable only to mundane

clerical errors

like with respec

of transcription and the

t to the record, and not

~35<

to substantive changes, like the vacation

of judgments. The Court of Appeals in

the case at bar succinctly ruled on the

inapplicability of Ohio Civil Rule 60(A):

"The proper vehicle in which to

allege the failure to receive

proper notice of a court's ruling

is Civ. R. 60(B)(5). State, ex

rel. Pajestka v. Faulhaber (1977),

50 Ohio St.2d 41. Further, when

a party institutes procedures for

vacating a judgment, Civ. R. 60(B)

is the obvious rule of choice,

rather than Civ. R. 60(A). Musca

v. Village of Chagrin Falls, (1981)

3 Ohio App.3d 192." (Pet. App.

9-10).

Both of the cases relied upon by the Court

of Appeals clearly confirm that Civil

Rule 60(A) was not intended as a vehicle

to undermine, but rather to merely

correct minor clerical errors in judg-

ments.

Indeed, the Ohio Supreme Court

c ni =ntete=eetee#eetee_ > = |

foreclosed any question as to the

applicability of Ohio Civil Rule 60(A)

to claims like petitioner's in his Motion

for Relief, holding, in State, ex rel.

-36-

Pajestka v. Faulhaber, 50 Ohio St.2d 41,

42 (1977), that where a party claims

lack of notice of an entry and thereby

wishes to extend the appeal,

"the proper remedy...is to file

a Motion for Relief from Judgment

under Civ. R. 60(B) (5).

Similarly, the Court is Musca v.

Village of Chagrin Falls, 3 Ohio App.3d 192,

syllabus 1 (Cuy. App. 1981) distinguished

the correction of clerical mistakes under

Civil Rule 60(A) from substantive changes

in judgments and held:

"1. Civ. R. 60(A) authorizes

the correction of clerical mistakes

only. Substantive changes in

orders, judgments or decrees are

not within its purview."

Federal court decisions construing

Federal Civil Rule 60(a), which is “very

much like” the Ohio rule (see Jacoby,

"Ohio Civil Practice", "Staff Notes to

Rule 60 -- Comparison Between Ohio...and

Federal Rule 60", p. 442) further confirm

that Civil Rule 60(A) is not meant as a

=37-

vehicle for disputes involving questions

of notice and/or where relief from the

underlying judgment is involved, as here.

Thus, declared the 7th and 2nd Circuit

Courts of Appeals, respectively:

"It is settled that...rule

[60(a)] applies only to an error

of transcription, copying, or

calculation and not to a

fundamental failure of discovery

or notification." Bershal v.

McDonough, 469 F.2d 1333, 1336

(7th Cir. 1972).

* * *

"Unlike the grant of a Rule 60

(b) motion, however, the grant

of a Rule 60(a) motion does not

lead to relief from the under-

lying judgment..." International

Controls Corp. v. Vesco, 556 F.2d

665, 670 (7th Cir. 1977).

Indeed, the difference between

Civil Rule 60(A) and (B) is clearly evident

in the provisions themselves. The first

sentence of Civil Rule 60(B) provides

that "the court may relieve a party...

from a final judgment..." Civil Rule 60(A),

on the contrary, contains no such state-

ment. -38-

EEHEREE ERE EHREEBEREBEB Baas 2S

Accordingly, it is manifest that

the trial court's apparent reliance on

Civil Rule 60(A) in vacating its

February 28, 1983 judgment (Pet. App.2)

was totally improper. There was, in

short, no basis under Civil Rule 60(A)

for the trial court to have vacated and

then reinstated a judgment, and the

Court of Appeals properly determined that

the trial court had committed significant

error in so doing. Moreover, this

decision was clearly one for a State court

under State Civil Rules, it is not in

conflict with any law cited by petitioner,

it clearly raises no constitutional

overtones whatever, and is certainly not

of sufficient scope to merit review by

this Court.

=39-

3. Civil Rule 60(B) Does Not

Warrant The Granting Of A

Moticn For Relief From

Judgment For The Purported

Failure To Receive A Non-

Mandatory Postcard From The

Clerk of Courts Where An

Entry Was Properly Journal-

ized And Purlished In

Accordance With The Civil

Rules And Local Rules Of

Court

Even if it is assumed that the trial

court considered petitioner's Motion for

Relief under Rule 60(B),~ the trial ccurt

erred in granting the Motion and thereby

vacating its February, 1983 original

ruling, and was thus properly reversed

by the Court of Appeals.

1 the trial court entry was premised

on "a clerical error" (Pet. App. 2), which

would appear to clearly fall within the

terminology of Ohio Civil Rule 60(A), the

use Of which Rule, as demonstrated above,

was clearly improper.

«40-

The only purported basis for a

Civil Rule 60(B) Motion wovld have been

petitioner's failure to receive postcard

notice of the trial court ruling, and as

documented above, it has been uniformly

held that a court is not required, under

the Rules of Civil Procedure or common

law, to provide notice to parties of a

judgment entry, or that the failure to

render notice does nct toll the appeal

pericd. See Americare Corp. v. Misenko,

10 Ohio St.3d 132 (1984); Cranman

Insurance Agency v. Wilson Marine Sales &

Service, 249 S.E.2d 631 (Ga. App. 1978);

FRCP 77(d).

Petitioner's purported reliance on

Steadley v. Montanya, 67 Ohio St.2d 297

(1981) before the Ohio courts and now

this Court, was and is entirely misplaced.

In Steadley, unlike the present action,

there is no indication that the appellant

#4le-

had received notice of the ruling in

question through the Daily Legal News,

as reguired under Local Court Rules.

Moreover, in Steadley the trial court had

orally promised the appellant to hold a

hearing before issuing said ruling, a

promise upon which the appellant relied.

In the instant acticn, there is no evidence

of any such promise with respect to

respondents' Motion for Summary Judgment.

Tideed, it is clear that the purpose of

petitioner's Motion for Relief was to aliow

him time to appeal, wherein in Steadley,

the Ohio Supreme Court found that the

judgment had been vacated in good faith,

due to the trial judge's breach of his

promise tc hold an orél hearing before

ruling, and not, as here, merely as a

"subterfuge [to circumvent] the juris-

Gictional time for filing a notice of

appeal." 67 Ohio St.2d at 299.

~~.

Ohio courts have resoundingly re-

jected such an abuse of Civil Rule 60.

In Town and Country Drive-In Shopping

Center, Inc. v. Abraham, 46 Ohio App.2d

262, 266-267 (Frank. App. 1975), the

appellate court recognized the policy

against using Rule 60(B) as a substitute

for appeal:

"It has been set forth in many

texts, as well as case law related

to Civ. R. 60(B), that such rule

cannot be used to circumvent or

extend the time requirements by

virtue of vacating a judgment and

reinstating it in order to start

the time for filing such notice of

appeal to run anew. As stated in

7 Moore, Federal Practice, Section

60.29:

‘It, therefore, follows

that a motion for relief

on one or more of the six

grounds stated in 60(b) for

relief from a final judgment

does not affect the finality

of the judgment; and hence,

does not toll the time for

appeal from the final judgment.'

Additionally, in Moore supra, at

Section 60.30 we find:

a4 3a

purported failure to receive a postcard

from the Clerk of Court is insufficient,

as a matter of law and sound policy

judgment, to warrant application of

Civil Rule 60(B), particularly when the

judgment entry was properly journalized

and published as required by the Civil

"While in appropriate

Situations we believe that,

within the time allowed for

appeal, a district court

may grant relief from

judicial error under Rule

60(b), the rule cannot be

used as a substitute for

appeal. As an appeal from

an order denying relief under

60(b) does not bring up for

review the judgment from

which relief is sought...'

We believe that such textual state-

ment in fact sets forth the

acceptable application of Civ.

R. 60(B). Such rule basically

is for the purpose of vacating

voidable judgments and those

judgments which have inherent

defects, and the filing of a

motion under such rule may not

serve the purpose of allowing

additional time for the filing

of an otherwise barred notice of

appeal,..."

In short, the law is clear that a

-44-

Rules and the Local Rules of Court.

The time for appeal passed (Ohio

Appellate Rule 4(A)) and, accordingly,

the Court of Appeals was unquestionably

correct in holding that petitioner

should not be permitted "to do by in-

direction that which he cannot do

directly." In re Marginean, 87 Chio L.

Abs. 314, 317 (Cuy. App. 1961).

Moreover, there was no constitu-

tional overtone in this ruling, no

conflict among jurisdictions, and thus,

like the determination on Ohio Civil

Rule 60(A), should properly be left

at the State court level.

-45-

CONCLUSION

THE PETITION SHOULD BE DENIED

Petitioner's theories of constitu-

tional infringement are entirely without

foundation in fact or law. He was not

denied access to any court. Petitioner

had his "day in court" before the trial

court, which properly decided to grant

respondents’ Motion for Summary Judgment,

and thus reject petitioner's ridiculously

far-fetched claim. That petitioner

failed to properly perfect his appeal

rights, by relying on custom as opposed

to rule, despite the trial court's

compliance with the Ohio Civil Rules

and the Local Rules of Court, con-

stitutes no basis to raise alleged con-

stitutional deprivation. That petitioner

failed in his effort to abuse Civil Rule

60, by attempting to use it as a sub-

stitute for an improper and late appeal,

constitutes no basis to raise alleged

-46-

constitutional deprivations. Moreover,

petitioner can establish no denial of

any fundamental rights, unlike the

claimants in many of the cases he cites,

who were improperly denied original

access to courts, or whose life and

liberty were at stake and were barred,

monetarily or physically, from sceking

appellate redress. And, there is a clear

rational basis for beginning the time for

appeal upon the entry of judgment, thus

further undermining any alleged constitu-

tional theories. Finally, in any case,

the Ohio Court of Appeals held that

petitioner's Motion for Relief was un-

timely, thus barring an appeal on any

basis.

Accordingly, there is no reason

that this Honorable Court should

entertain this case. A lack of merit

-47-

in petitioner's claims and the lack of

gravity of this entire matter, clearly

compels the conclusion that this case

should be left as properly determined

by the Ohio State courts.

-48-

CERTIFICATE OF SERVICE

Three copies of the foregoing

Brief in Opposition to Petition for

of Ohio were hand-delivered to Joel

Levin, attorney for petitioner, 700

Engineers Building, Cleveland, Ohio

44114-1357, thisOdthday of January,

1985.

(Bruse Monslef

BRUCE P. MANDEL of

ULMER, BERNE, LARONGE,

GLICKMAN & CURTIS

900 Bond Court Building

Cleveland, Ohio 44114

216/621-8400

* Writ of Certiorari to The Supreme Court

Attorney for Respondents

~49-

APPENDIX

-50-

THE DAILY LEGAL NEWS AND CLEVELAND RECORDER

Court of Common Pleas

Leo M. Spellacy, Presiding Judge

Record for Tues., March l, 1983

COURTROOM 23-B

Judge Daniel O. Corrigan

Thomas J. Kilbane, Bailiff

051392 -- Khateeb vs. McKenzie.

Settled and dismissed at pltffs. cost.

018863 -- Zerovnik vs. E.F. Hutton Co.

Judgment for deft. at pltffs. cost.

App. l