Electronic Filing of Appeal Notice Is Valid Only Where Authorized by Local Appellate Rule
2007-1819 and 2007-1821. Louden v. A.O. Smith Corp., Slip Opinion No. 2009-Ohio-319.
Cuyahoga App. Nos. 90184 and 90185. Judgment affirmed.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Lanzinger, J., concurs in part and dissents in part.
Pfeifer, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-319.pdf 
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(Feb. 4, 2009) The Supreme Court of Ohio ruled today that, unless a properly adopted local rule of appellate procedure expressly permits the filing of a notice of appeal by electronic means, a party appealing a trial court order must file a paper copy of the appeal notice with the clerk of the trial court pursuant to Ohio App.R. 3.
Applying that ruling to a Cuyahoga County asbestos case, the Court held that because the plaintiffs failed to file a paper notice of appeal with the trial court within the 30-day time limit specified in the state’s appellate rules, their appeal must be dismissed as not timely filed. The Court’s majority opinion was authored by Justice Evelyn Lundberg Stratton.
Because of the great volume of asbestos-related civil cases that have been filed in Cuyahoga County, the local common pleas court established a special docket for such cases that is overseen by two fulltime judges who hear nothing but asbestos litigation. Under local rules established to expedite the resolution of these cases, all parties and the attorneys representing them in cases on the asbestos docket are required to file documents with the trial court in electronic rather than in paper form.
In this case, the widows of two electric utility maintenance workers who died from asbestos-related lung disease, Bertha Louden and Mary Border, filed wrongful death lawsuits against manufacturers and suppliers of asbestos-bearing materials their husbands handled in the workplace, including Goulds Pumps Inc. The trial court consolidated the two cases. In accordance with the asbestos court’s local rules, all documents filed with the trial court by attorneys for the plaintiffs and defendants were filed electronically. On April 5, 2007, the trial court granted summary judgment in both cases and dismissed Louden and Border’s claims against Goulds Pumps.
On May 4, 2007, the plaintiffs’ attorneys transmitted an electronic notice of appeal to the clerk of the common pleas court for the purpose of initiating appeals of both cases to the Eighth District Court of Appeals. However, the clerk of the trial court did not forward those notices to the Eighth District. On July 24, 2007, appellants filed paper copies of their notices of appeal with the clerk of the trial court. This time, the clerk forwarded the notices to the court of appeals. However, the court of appeals sua sponte (on its own initiative) dismissed appellants’ notices of appeal on the basis that the 30-day deadline for appealing the trial court’s April 5 summary judgment orders had expired. Louden and Border sought and were granted Supreme Court review of the court of appeals’ order dismissing their cases.
Writing for the Court in today’s decision, Justice Stratton pointed to language in Ohio App.R. 1(A) stating that, although a notice of appeal is filed with the clerk of the trial court whose ruling is being appealed, “(I)t is the Rules of Appellate Procedure that ‘govern procedure in appeals to courts of appeals,’ (Emphasis added.).”
Justice Stratton acknowledged that advancements in technology have made the electronic processing of court documents both feasible and practical. She noted that the Supreme Court has recognized those advancements by enacting new rules, including App.R. 13, which allows the state’s appellate districts to develop local rules “for the filing of documents by electronic means, ” and Sup.R. 27, which requires any court proposing to adopt an electronic filing rule to first have the proposed rule reviewed by the Supreme Court Commission on Technology and the Courts to “determine that the local rule complies with the minimum, uniform standards adopted by the Commission.”
She pointed out, however, that “(t)o date, only four of Ohio’s 12 district courts of appeals have adopted rules to permit electronic filing of certain documents. ... The Eighth District Court of Appeals has not adopted any local rule that permits electronic filing. Accordingly, the Eighth District Court of Appeals does not permit pleadings to be filed electronically.”
Finding that the trial court’s case management order could not and did not authorize the Eighth District to accept electronic notices of appeal in the absence of a local appellate rule, Justice Stratton concluded: “While electronic filing will one day likely be the rule rather than the exception, advancements in information technology appear to be outpacing the promulgation of new rules providing for the use of such technology in Ohio courts. But in the meantime, we need an orderly and uniform system for incorporating information technology in our courts. That system has been laid out in App.R. 13 and Sup.R. 27. Thus, we hold that unless a local rule of the appellate court, properly approved under Sup.R. 27, expressly permits filing of a notice of appeal by electronic means, a party appealing a trial court order must file a paper copy of the notice of appeal with the clerk of the trial court pursuant to App.R. 3.
Consequently, the appellants’ notices of appeal filed electronically were invalid. Appellants’ subsequently filed paper notices of appeal were untimely. Accordingly, we affirm the court of appeals’ judgment dismissing appellants’ appeals.”
Justice Stratton’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Justice Judith Ann Lanzinger entered a separate opinion in which she concurred with the majority holding that an appeal notice may be filed electronically only when expressly permitted by a local appellate rule. She wrote, however, that because this legal interpretation was not clear until today’s decision, and because Louden and Border filed their original electronic appeal notice within the required time limit and in response to a specific trial court order mandating electronic filing, she would remand the case to the Eighth District and allow the appellants to proceed with their appeals rather than dismissing their claims on purely technical grounds.
Justice Paul E. Pfeifer dissented, stating that in his view the majority decision effectively abandons without ever overruling prior Supreme Court decisions holding that the Rules of Appellate Procedure should be applied liberally in favor of allowing cases to be decided on the merits rather than narrowly to dismiss appeals on purely technical grounds.
In this case, Justice Pfeifer wrote, “To the contrary, this court has essentially informed Ohio litigants that they can no longer rely on the express orders of trial court judges. A more just solution would be to acknowledge that when a judge makes a decision regarding appellate procedure that this court ultimately deems a mistake, and a party relies on the judge’s mistake, that party should not be prejudiced. Accordingly, we should craft an equitable remedy to provide substantial justice to the appellants in this case by allowing them time to cure the now apparent defect in their filings.”
Contacts
Paul W. Flowers, 216.344.9393, for Bertha Louden and Mary Border.
Timothy J. Fitzgerald, 216.241.5310, for Gould Pumps.