Wilson v. Wilson

PER CURIAM

Trial Court Case No. 2004 DR 00458 [Civil Appeal from Common Pleas Court]

PER CURIAM:

{¶ 1} This matter is before the court for resolution of our show cause order. We conclude that we lack jurisdiction to hear the appeal, and dismiss.

{¶ 2} On December 6, 2018, Richard M. Wilson filed a notice of appeal. He appeals the October 26, 2018 "Entry & Order" issued by the trial court. According to a notation on the docket, "NOTICE OF FINAL APPEALABLE ORDER WAS INCLUDED IN THE ENTRY AND ORDER AND SENT TO ALL PARTIES BY REGULAR MAIL" the same day it was issued. Civ.R. 58(B); App.R. 4(A)(3).

{¶ 3} It appeared to this court that the notice of appeal was untimely. App.R. 4(A)(1) requires "a party who wishes to appeal from an order that is final upon its entry [to] file the notice of appeal required by App.R. 3 within 30 days of that entry." Here, the December 6 notice of appeal was filed more than 30 days after the October 26 Entry.

{¶ 4} We ordered Richard Wilson to show cause why this matter should not be dismissed for failure to timely file the notice of appeal. He filed a response on February 11, 2019. He asserts that he did not receive the October 26 Entry "until some three weeks after this date," presumably because of his current residence in the United Kingdom. He explains that he then had to seek legal advice, and then send his notice of appeal back to the court by ordinary mail.

{¶ 5} Richard further asserts that Article 16 of the Hague Convention (presumably the "Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters" or "Hague Service Convention") "allows for written summons or motion to a court of another county, more time to file such when the litigant cannot be present at a hearing, and therefore such a notice of appeal would take far longer to be filed with a court as opposed to a resident of said home country." He asks that the appeal be allowed to proceed. Appellee, Tammie Wilson, did not file a response to Richard's filing.

{¶ 6} We first note that we are barred by rule from extending the deadline for filing a notice of appeal or excusing an untimely filed notice. App.R. 14 expressly provides that this court "may not enlarge or reduce the time for filing a notice of appeal * * *." The timely filing of a notice of appeal "is a prerequisite to a civil appeal as of right." Moldovan v. Cuyahoga Cty. Welfare Dept., 25 Ohio St.3d 293, 294-295, 496 N.E.2d 466 (1986). "The Supreme Court of Ohio has held that the failure to comply with time requirements of App.R. 4(A) is a jurisdictional defect, which is fatal to an appeal." CitiBank v. Abu-Niaaj, 2d Dist. Greene No. 2011CA45, 2012-Ohio-2099, ¶ 7, citing In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, ¶ 17 and Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320, 649 N.E.2d 1229 (1995). Thus, without a timely notice of appeal, this court lacks jurisdiction, or the authority, to consider the appeal.

{¶ 7} Article 16 of the Hague Service Convention provides:

When a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled -

a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal, and

b) the defendant has disclosed a prima facie defence to the action on the merits.

An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment.

Each Contracting State may declare that the application will not be entertained if it is filed after the expiration of a time to be stated in the declaration, but which shall in no case be less than one year following the date of the judgment.

This Article shall not apply to judgments concerning status or capacity of persons.

{¶ 8} Upon consideration, we conclude that this language does not provide as broad of relief as Richard asserts. Notably, it does not simply give out-of-country litigants more time to do things than in-country litigants. It appears to apply to a specific set of circumstances: where a litigant was not timely served with case-initiating documents, did not appear, had a default judgment entered against it, missed the appeal deadline, and then raised the issue along with its meritorious defense.

{¶ 9} We have found only one Ohio case analyzing whether and how the Hague Service Convention interacts with the jurisdictional deadlines described in Ohio's App.R. 4. In that case, Ursetti v. Omlin, the Eleventh District Court of Appeals acknowledged the convention but nonetheless dismissed an appeal as untimely:

This appeal presents two issues for consideration: (1) does the Hague Treaty apply to this case; and (2) if so, did the appellant comply with the requirements of Article 16 of that treaty.

Article 1 of the Hague Treaty defines the scope of the Convention. It provides: "[T]he present Convention shall apply in all cases, in civil or commercial matters where there is occasion to transmit a judicial or extrajudicial document for service abroad." 20 U.S.T. at 362 (Emphasis added.)

In the case at bar, service had been perfected on appellant; however, the judgment entry, allegedly, was not received in time to file a timely Notice of Appeal. Therefore, at issue is whether the purportedly late receipt of the judgment entry sent via U.S. mail is, under the Convention, the transmittal of a judicial document for service abroad.

The negotiating history of the Convention supports the view that the Convention was not meant to apply "to transmissions abroad that do not culminate in service." See Volkswagenwerk Aktiengesellschaft v. Schlunk (1988), 108 S.Ct. 2104, 2109. In appellant's case, the judgment entry transmitted abroad was meant to effectuate service on the appellant. In compliance with Civ.R. 58(B) and App.R. 4(A), the judgment entry was filed and mailed to the appellant on June 27, 1996. This judgment entry, mailed to appellant in Switzerland, activated the Hague Treaty in appellant's case.

Although the Hague Treaty applies, the appellant has failed to comply with the requirements of Article 16 of the Treaty and, therefore, is not eligible for relief. Appellant cites to Article 16 for the proposition that this court may accept appellant's Notice of Appeal as timely and, therefore, have jurisdiction to consider the appeal. The relevant section of Article 16 of the Hague Treaty provides, in part, as follows:

"When a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and a judgment had been entered against the defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled.

"(a) The defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal, and

"(b) The defendant has disclosed a prima facie defense to the action on the merits.

"An application for relief may be filed only within a reasonable time after the defendant has knowledge of the

judgment." (Emphasis added.)

The appellant's reliance on the above provision to exempt her from filing a timely Notice of Appeal is without merit. The relevant language of Article 16 provides for a situation where a judgment has been entered against a defendant who has not appeared. This section excludes appellant from the purview of Article 16 since she made an appearance on February 29, 1996, by filing an answer and counterclaim.

The purpose of Article 16 can be construed by reading it in conjunction with Article 15. Article 15 provides that a judgment may not be entered against a foreign defendant who did not receive timely notice of a lawsuit. See Volkswagenwerk Aktiengesellschaft at 2110. Article 16 provides relief to a defendant who did not receive timely notice of the lawsuit and judgment was entered against that defendant. Id. In appellant's case, there was timely notice of the lawsuit, an appearance on appellant's behalf and a judgment on the merits. Therefore, appellant should be denied relief because redress is limited to defendants who have default judgments rendered against them because they did not receive notice of the lawsuit and did not appeal.

In conclusion, the Hague Treaty applies to judicial documents transmitted abroad to effectuate service. The mailing of the judgment entry was meant to effectuate service on appellant. Therefore, the Hague Treaty was triggered and, though applicable to this case, the appellant will not be granted relief since she has failed to meet the test set out under Article 16. Accordingly, since this court lacks jurisdiction pursuant to App.R. 4(A),

appellee's motion to dismiss is granted, and appellant's appeal is dismissed.

{¶ 10} Similarly, the record reflects here that Richard appeared and participated in the case below. The October 26 Entry was a response to a motion he filed challenging a previous judgment, entered over his objections. He was served with the October 26 Entry and acknowledges that he received it within the 30-days to file an appeal. Even if the Hague Service Convention applied here (a finding we need not and do not make), Article 16 would not exempt Richard from the regular jurisdictional requirement of filing a notice of appeal within 30 days.

{¶ 11} We find our show cause order NOT SATISFIED. This appeal, Montgomery Appellate Case No. 28227, is DISMISSED.

{¶ 12} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Montgomery County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing. Costs taxed pursuant to App.R. 24.

SO ORDERED.

/s/_________

JEFFREY M. WELBAUM, Presiding Judge

/s/_________

JEFFREY E. FROELICH, Judge

/s/_________

MICHAEL T. HALL, Judge Copies to: Richard Wilson
23 Westford Grange
Wellington
Somerset
United Kingdom
TA21 0EP
Appellant Tammie Wilson
185 Cloverwood Drive
Centerville, Ohio 45458
Appellee Hon. Timothy Wood
Montgomery County Domestic Relations Court
301 W. Third Street, 2nd Floor
Dayton, Ohio 45422 Magistrate Barbara Reno
Montgomery County Domestic Relations Court
301 W. Third Street, 2nd Floor
Dayton, Ohio 45422 Courtesy copy to: Connie Klayko
61-B South Main Street
Centerville, Ohio 45458 CA3/KY