Kertes Enterprises, Inc. v. Planning Zoning Commission

The right to file an appeal is a property interest which may not be revoked absent due process of law. Atkinson v. GrummanOhio Corp. (1988), 37 Ohio St. 3d 80, 523 N.E.2d 851, paragraph one of the syllabus. Therefore, within three days of the entry of any final appealable order, the clerk of court is required to serve notice of the entry of a final judgment and to "make a notation in the case docket indicating that the required service has been made." Id. at paragraph two of the syllabus; see, also, Civ.R. 58(B). The record herein does not contain such notice for the December 12, 1988 entry. In fact, the trial court recognized the clerk's omission in its June 19, 1989 order when it stated that "[d]ue to the failure of the Clerk's Office to send notice of original order, appeal rights from said order begin to run on the date of this entry." By dismissing this appeal based on the December 12, 1988 order absent notice of service of the December 12 order, appellant is being denied its right to appeal without due process of law. I would find appellant's appeal from the June 19, 1989 judgment timely and address this case on the merits.

APPENDIX Appellant's assignments of error are:

I "Whether the court of common pleas erred in granting appellee's motion to dismiss and in ruling that appellant was required to file a praecipe for the filing of the record of appeal."

II "Whether the court of common pleas erred in concluding sub silentio that this appeal is governed by Chapter 2506, Ohio Revised Code."

III "Whether the court of common pleas erred in denying appellant's motion for judgment and in ruling that appellee was not required to file the record on appeal." *Page 51