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Dayton Board of Education v. Treasurer2/26/2002
(REGULAR CALENDAR)
DECISION
APPEAL from the Ohio Court of Claims.
This matter is before this court upon the appeal of Dayton Board of Education, plaintiff-appellant, from the judgment of the Ohio Court of Claims denying appellant's motion for summary judgment and granting summary judgment in favor of defendants-appellees Treasurer, State of Ohio, Industrial Commission of Ohio and Bureau of Workers' Compensation.
Appellant sets forth the following sole assignment of error on appeal:
THE COURT OF CLAIMS ERRED AND ABUSED ITS DISCRETION BY OVERRULING DBE'S [APPELLANT'S] MOTION UNDER CIV.R.60 AND DECLINING TO CORRECT THE RECORD OF THE FILING DATE FOR DBE'S NOTICE OF APPEAL.
On March 30, 1993, appellant filed a complaint in the Ohio Court of Claims against appellees seeking to recover money from the Intentional Tort Fund for money appellant paid to William Bailey after appellant acknowledged that it was liable for an intentional tort. Both appellant and appellees filed motions for summary judgment. By entry dated April 16, 2001, the Court of Claims denied appellant's motion for summary judgment and granted appellees' motion for summary judgment.
Appellant sought to appeal from the April 16, 2001 entry of the Court of Claims. Appellant filed its notice of appeal in the Tenth District Court of Appeals. That notice of appeal was received by the clerk of the court of appeals on May 15, 2001. Appellant's notice of appeal was supposed to be filed with the clerk of the Court of Claims. The appellate court clerk forwarded appellant's notice of appeal to the Court of Claims and it was received there on May 17, 2001. The Court of Claims then forwarded the notice of appeal to the Tenth District Court of Appeals for review. On June 7, 2001, appellees filed a motion to dismiss and appellant's appeal, Dayton Bd. of Edn. v. Treasurer, State of Ohio (July 23, 2001), Franklin App. No. 01AP-581, unreported, was dismissed by this court because appellant's notice of appeal had not been timely filed with the clerk of the Court of Claims. While the motion to dismiss was still pending in this court in case No. 01AP-581, appellant filed a motion in the Court of Claims on June 13, 2001 seeking relief from the April 16, 2001 entry pursuant to Civ.R. 60. In that motion, appellant indicated that the notice of appeal was sent in a timely fashion; however, it was inadvertently incorrectly addressed. Appellant asserted further that the clerk of the court of appeals failed to contact appellant's counsel so that the error of the incorrect address of the notice of appeal could be remedied in a timely fashion. Instead, as stated previously, the clerk of the court of appeals forwarded appellant's notice of appeal to the Court of Claims. By entry dated July 10, 2001, the Court of Claims denied appellant's motion for relief pursuant to Civ.R. 60 as follows:
On June 13, 2001, plaintiff filed a motion for correction of its notice of appeal, pursuant to Civ.R. 60. Plaintiff moves the court to correct the filing date of its notice of appeal, which was erroneously delivered directly to the Tenth District Court of Appeals on May 15, 2001, rather than to this court. Upon review, plaintiff's motion for correction is OVERRULED.
Thereafter, appellant filed a notice of appeal challenging the entry of the Court of Claims denying appellant relief pursuant to Civ.R. 60. The case is now before this court for our review.
Civ.R. 60 provides, in pertinent part, as follows:
(A) Clerical mistakes Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corr
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