In Bank United v. Klug, the Ninth District reaffirmed the well-settled rule that the journalization of a nunc pro tunc order which merely "correct[s] minor typographical errors" does not extend the 30-day notice-of-appeal filing deadline provided for in Appellate Rule 4(A). Here, the order was entered on January 6, a nunc pro tunc order was entered on January 22, and the notice of appeal was filed on February 19--28 days after the nunc pro tunc order, but 44 days after the original order. The appeal thus was untimely, and was dismissed.
Somewhat oddly, the court reached this conclusion after first engaging in three pages of discussion about whether the order was final and appealable in the first place. Given that the appeal filing deadline is jurisdictional, and given the ease with which that question is resolved, I'm not sure why it was necessary to consider the appealability of the order. No matter what result the court reached on that question, it lacked jurisdiction due to untimeliness.
Less than a week ago the Sixth Circuit tackled a similar issue differently. In an unusual case in which a district judge ordered polls to remain open based on an anonymous phone call about a fatal bridge accident, the court of appeals observed that federal law "does not dictate a sequencing of jurisdictional issues," and proceeded to decide the case based on standing at the time of filing, rather than based on mootness at the time of appeal. If the Klug court believed that Ohio law, unlike federal law, does dictate a sequencing of jurisdictional issues, it made no express mention of that belief in its opinion. And as a result, it seems that perhaps the Klug court wasted some effort.
Incidentally, the Ninth District enjoys the happy distinction of being the only Ohio appellate court comprised entirely of women.
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