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Hamilton v. Spirtos3/27/2002
JUDGMENT: Dismissed.
. This is an appeal of the denial of a Civ.R. 60(B) Motion to Vacate Judgment in a medical malpractice case. Carol Hamilton ("Appellant") previously attempted to directly appeal the jury verdict in this case, but that appeal was dismissed by this Court as untimely filed. (11/29/2000 J.E.). Appellant did not file an appeal of that decision to the Ohio Supreme Court. Because Appellant cannot now use a Civ.R. 60(B) motion as a substitute for a timely appeal or as a tool to circumvent this Court's prior decision, this appeal is hereby dismissed.
. Although the procedural history of this case is complicated, the salient points can be summarized rather quickly.
. Appellant filed her malpractice complaint on October 16, 1996. During the course of the litigation, Appellant retained the joint services of three attorneys: Mark Colucci, Michael Morley and Timothy Morley. Mark Colucci and Michael Morley jointly filed Appellant's complaint. Timothy Morley filed a notice of appearance on February 29, 2000. The notice of appearance also listed Timothy Morley's address incorrectly as 2363 Lalemony, University Heights, Ohio 44118.
. During the course of the litigation a number of defendants were dismissed. The jury returned its verdict in favor of the remaining defendants, Dr. David Jackson and St. Elizabeth Medical Center ("Appellees"), and the judgment entry memorializing the verdict was filed on June 16, 2000.On June 23, 2000, Appellant filed a Civ.R. 59 motion for new trial alleging juror misconduct. The motion was overruled by judgment entry on August 11, 2000. The trial court docket notes that copies of the August 11, 2000, decision were not sent to the parties until August 30, 2000. The docket shows that copies were sent to two of Appellant's attorneys, namely, Timothy Morley and Michael Morley. Although the record is not entirely clear, it appears that the clerk's office of the Mahoning County Court of Common Pleas inadvertently determined that Attorney Colucci had withdrawn from the case. The error was not discovered by Attorney Colucci until October 5, 2000. Neither Attorney Michael Morley nor Attorney Timothy Morley had yet filed an appeal of the August 11, 2000, decision, so Attorney Colucci filed an appeal on October 5, 2000. This was designated as Appeal No. 00 CA 213.
. Both Appellees filed motions to dismiss the appeal as untimely filed. Appellees argued that App.R. 4(A) provides that an appeal must be filed within 30 days of the later of the entry of the judgment or service of the judgment on the parties if service was not made within three days as provided by Civ.R. 58(B). Appellees conceded that service on the parties was not made within three days, and that the 30-day appeal period had begun to run on August 30, 2000. Appellees argued that Appellant filed her appeal more than 30 days after this date. Appellees argued that service was made on two of Appellant's attorneys, and that this satisfied the requirement of service on the "parties" as prescribed in App.R. 4, Civ.R. 5, and Civ.R. 58.
. Appellant filed a response to the motions to dismiss. Appellant argued that none of her three attorneys were properly served with notice of the August 11, 2000, judgment. Attorney Colucci was not served at all. Attorney Michael Morley was served at his mailbox at the courthouse. Appellant argued that this is not listed as a valid mode of service in Civ.R. 5(B). Appellant also argued that Attorney Timothy Morley was served at an incorrect address because the address used on the February 29, 2000, notice of appearance was incorrect. Appellant included an affidavit of Attorney Timothy Morley stating that he had not re
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