Steadley v. Montanya

Paul W. Brown, J.,

dissenting. In pertinent part, App. R. 4(A) states: “In a civil case the notice of appeal***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.” Clearly, this requirement was not satisfied in the instant cause. Appellee, however, seeks to avoid the operation of App. R. 4(A) on the basis of an oral understanding between her and the trial judge. The essence of this understanding or “promise” was that the trial court would hold a hearing on appellee’s motion for new trial prior to ruling thereon. The majority holds that the failure of the trial judge to fulfill this promise is sufficient basis upon which to grant relief to appellee. I disagree.

My reasons for dissenting herein are several. First, as the majority correctly notes, a motion to vacate a judgment, pursuant to Civ. R. 60(B), may not be used as a means of circumventing the requirements of App. R. 4(A). Bosco v. Euclid (1974), 38 Ohio App. 2d 40; McCue v. Buckeye Union Ins. Co. (1979), 61 Ohio App. 2d 101. Second, there is no provision in Civ. R. 59 that the court, under the facts in the instant cause, is required to hold an oral hearing on a motion for a new trial. Third, although appellee received no notice of the court’s judgment entry of March 15, 1979, such fact is immaterial, since, under Ohio law, no such notice is required. Fourth, as implied by the majority, there are significant policy reasons for avoiding oral agreements which are not properly journalized. The difficulties encountered in the instant cause clearly manifest the rationale behind avoiding such oral understandings.

Notwithstanding the oral promise made by the trial judge, it is ultimately the responsibility of counsel for the litigants to ensure that the interests of their clients are protected. In this time of crowded dockets and increasingly complex litigation, I *303find no justification for a practice which is frowned upon and serves no purpose other than to obfuscate the tasks of trial and appellate courts. Had appellee desired an oral hearing on her motion for a new trial, she could have filed a written request therefor. By so doing, the court’s response thereto would be a matter of record and not an undisclosed agreement between one of the parties and the court.

App. R. 4(A) imposes a strict rule upon litigants. However, “[t]he purpose of a strict rule is a salutary one. It requires litigants to be alert to insure an orderly and prompt processing of appeals.” (Emphasis added.) Bosco v. Euclid, supra, at 43. The majority’s decision undermines this rule and casts doubt upon the concept of finality of judgments. Moreover, it legitimizes a procedure which has no reason to exist in our system of jurisprudence—oral understandings reached between the court and one of the parties, without the knowledge of the other parties.

For the foregoing reasons, I believe that the appeal was not timely filed and, accordingly, this appeal should be dismissed for lack of jurisdiction.

Celebrezze, C. J., and W. Brown, J., concur in the foregoing dissenting opinion.