Consolidated Rail Corp. v. Forest Cartage Co.

588 N.E.2d 263, 68 Ohio App. 3d 333, 7 Ohio App. Unrep. 270, 1990 Ohio App. LEXIS 3896

• Court: Ohio Court of Appeals
• Decided: September 6, 1990
• Docket: Case 56734
• Status: Published

Opinions

KRUPANSKY, J.

On August 22, 1986 Consolidated Rail Corporation ("Conrail") instituted this action against Forest Cartage, Inc, Ronald J. Smoker, John N. Smoker, Smoker & Son (collectively "Forest Cartage") and St. Paul Fire and Marines Insurance Co. ("St. Paul") alleging it was a "protected person" under the St. Paul insurance policy and indemnity clause in its contract with Forest Cartage and demanding a defense and indemnification as a result of a fatal accident to a Conrail employee. Both parties moved for summary judgment which was granted in favor of defendants Forest Cartage et al. On November 18, 1988 Conrail appealed to this court in the case sub judice challenging the granting of summary judgment to defendants which became a final appealable order more than thirty days before the institution of this appeal. 1 App. R. 4(A). Defendants filed their motion to dismiss the within appeal for lack of jurisdiction prior to oral argument. The relevant procedural history of the case follows:

(1) March 4, 1988 - Conrail (plaintiff) filed its motion for summary judgment.

(2) March 11, 1988 - defendants filed their motion for summary judgment.

(3) June 21, 1988 - the trial court denied Conrad's motion and granted summary judgment to defendants.

(4) July 5, 1988 - Conrail filed a motion captioned: "Motion for Reconsideration and Motion for Extension of Time in which to File a Reply Brief." Attached to this motion was an affidavit of counsel averring in essence that plaintiffs had neither notice of defendants' motion for summary judgment nor an opportunity to reply.

(5) July 13, 1988 - the trial court entered an order stating as follows:

"Pltf Mtn for Reconsideration is treated as a Relief from Judgment. Relief Granted. Entries of 6-20-88 granting and denying summary judgment are vacated. Case reinstated."

(6) October 24, 1988 - the trial court denied Conrail's motion for summary judgment and once again granted defendants' motion for summary judgment.

(7) November 18, 1988 - Conrail filed its notice of appeal to the Eighth District Court of Appeals.

App. R. 4(A) requires an appeal be filed within thirty days after the entry of a final judgment or order. This time requirement is jurisdictional and may not be extended except for reasons contained in App. R. 4(A) 2 which are not applicable herein. Ditmars v. Ditmars (1984), 16 Ohio App. 3d 174, 175; Lorber v. Norvelis (August 31, 1989), Cuyahoga App. No. 57481, unreported. Furthermore, Civ. R. 60(B) relief does not substitute for an appeal nor can it be used "to circumvent or extend the time requirements for filing an appeal." Blasco v. Mislik (1982), 69 Ohio St. 2d 684, 686.

The trial court's orders of June 21, 1988 which denied plaintiffs motion for summary judgment and granted summary judgment to defendants were final and appealable. Conspicuously absent was any motion timely filed by plaintiff which suspended the thirty days to file a timely appeal, viz., (1) motion for new trial under Civ. R. 59; or (2) motion for judgment n.o.v. pursuant to Civ. R. 50. Therefore, on June 21, 1988, plaintiff had a final appealable order and if dissatisfied with the trial court's decision, plaintiff had until only July 21, 1988 to file a timely notice of appeal. A November 17, 1988 notice of appeal is fully one hundred nineteen days out of rule.

What transpired at the trial court level was a series of inept manipulations of the civil rules which served to obfuscate the facts that the parties' due process rights were trounced and the appeal sub judice is not timely.

On July 5, 1988 Conrail filed a motion captioned "Motion for Reconsideration and Motion for Extension of Time in Which to File a Reply Brief in response to the final order of June 21, 1988 denying their motion for summary judgment and granting summary judgment to defendants. Attached to the above motion was an affidavit of Conrail's counsel who basically averred plaintiff was without notice or receipt of defendants-appellees' motion for summary judgment, thereby denying them the opportunity to oppose it. Plaintiffs "Motion for Reconsideration" simply sought to extend the time for their reply brief. Plaintiff did not seek vacation of the order of June 21, 1988.

The trial court entered an order on July 13, 1988 in response to plaintiff 's "Motion for Reconsideration" stating in part as follows:

"Pltf Mtn for Reconsideration is treated as a Relief from Judgment. Relief Granted. Entries of 6-20-88 granting and denying summary judgment are vacated. Case reinstated."

The trial court in its order of July 13, 1988 in the few sentences quoted above abused its discretion and committed five errors. The trial court erred as follows:

(1) Changed a motion for reconsideration into a Civ. R. 60(B) motion;

(2) Failed to give notice to defendants of the change so defendants could respond to the Civ. R. 60(B) motion;

(3) Granted the Civ. R. 60(B) motion;

(4) Vacated the final appealable order; and

(5) Reinstated the casa

App. R. 4(A) provides in pertinent part as follows:

"(A) In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days of the date of the entry of the judgment or order appealed from.

"The running of the time for filing a notice of appeal is suspended as to all parties by a timely motion filed in the trial court by any party pursuant to the Civil Rules hereafter enumerated in this sentence; and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of the last of any of the following orders made upon a timely motion under such rules granting or denying a motion (1) for judgment under Rule 50(B); (2) for a new trial under Rule 59.

Furthermore Civ. R. 7(B) (1) states in part as follows:

"(1) An application to the court for an order shall be by motion which, unless made during a hearing or a trial, shall be made in writing. A motion, whether written or oral, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. ***" (Emphasis added.)

Plaintiff did not request relief from judgment pursuant to Civ. R. 60(B), however, the trial court sua sponte elevated the ill-advised "Motion for Reconsideration" into a motion for "Relief from Judgment." The Eighth District Court stated in its recent opinion Kertes Enterprises, Inc. v. Planning Zoning Commission of Orange Village (May 17, 1990), Cuyahoga App. No. 58092; unreported, as follows: "Civ. R. 60(B) provides the exclusive grounds which must be present and the procedure which must be followed in order for a court to vacate its own judgment." McCue v. Insurance Co. (1979), 61 Ohio App 2d 101.

In light of the above circumstance^ it appears the issue may encompass the latitude the trial court has seized when granting Civ. R. 60(B) relief to a party either without the party fulfilling the requirements for such motion or allowing the opposing party notice and an ample opportunity to respond. The Ohio Civil Rules and due process require that such a practice should not be tolerated. See Sperry v. Hlutke (1984), 19 Ohio App. 3d 156.

In addition, the facts require investigating whether the trial court had the authority to vacate the order in controversy under the guise of a civ. R. 60(B) or sua sponte. In this regard, the court stated in Rice v. Bethel Assoc., Inc. (1987), 35 Ohio App. 3d 133, at syllabus:

"Unless notice and an opportunity to be heard are given to opposing parties, a trial court has no authority to vacate its judgment, whether upon motion or sua sponte."

Furthermore, the Rice court added at 134 as follows:

"We have previously recognized that Civ. R. 60(B) provides 'the exclusive grounds which must be present and the procedure which must be followed in order for a court to vacate its own judgment.' Cale Products, Inc. v. Orrville Bronze & Alum. Co. (1982), 8 Ohio App. 3d 375, 378, 8 OBR 489, 492, 457 N.E. 2d 854, 858 (citations omitted). Based upon this principle, at least one other Ohio appellate court has held that a trial court is without authority to vacate its final orders sua sponte. See Hellmuth, Obata & Kassabaum v. Ratner (1984), 21 Ohio App. 3d 104, 107, 21 OBR 112, 114, 487 N.E. 2d 329, 331. In light of the due process concerns involved, we find this rule proper in the case sub judice."

Therefore, the trial court erred and abused its discretion acting outside its authority in granting the above pseudo Civ. R. 60 (B) motion without giving the defendants an opportunity to respond. Rice, supra.

It is axiomatic that the filing of a motion for reconsideration after a final appealable order does not suspend the time for filing a notice of appeal. State, ex rel. Pendell, v. Adams Cty. Bd. of Elections (1988), 40 Ohio St. 3d 58, 60; Pitts v. Dept. of Transportation (1981), 67 Ohio St. 2d 378, 379-381; Sakian v. Taylor (1984), 18 Ohio App. 3d 62, 63; Spinell v. Ohio State Home Servs., Inc. (Apr. 27, 1989), Cuyahoga App. No. 56327, unreported; App. R. 4(A).

Pitts notes the civil rules do not provide for a motion for reconsideration and holds such motion to be a nullity when entered after a final appealable order. Pitts, supra, at 380. Furthermore, the Pitts majority clearly indicates the trap of practical considerations involved in attempting to extrapolate or decipher which motion a party really meant to file. The Pitts court clearly envisioned the quandary presented in the case sub judice when stating as follows:

"*** Once again, this court as well as the lower courts are left in a procedural quagmire of trying to elevate a motion for reconsideration after a final judgment to the status of a motion for a new trial or as a motion for a directed verdict or the like. The courts have had the arduous task of trying to inspect each and every motion for reconsideration which is filed in the trial court after a final judgment, and try to decipher form over substance This is a costly procedure, both financially and in manual labor, which, as in the present cause, results in a procedural morass which clouds the merits. Complications concerning the timeliness of appeal and whether the Court of Appeals is vested with jurisdiction when a motion for reconsideration is filed after a final judgment can and should be avoided. See Judge Krenzler's concurring opinion in North Royalton Edn. Assn. v. Bd. of Edn. (1974), 41 Ohio App. 2d 209, at 251." (Emphasis added.)

Furthermore, the strong language of Pitts unequivocally holds based upon sound reasoning as follows: *** ”[W]e hold that the motion for reconsideration of the May 24 ruling will not lie and all judgments or final orders from said motion are a nullity." (Emphasis added.) Pitts, supra at 381.

Plaintiff did not seek relief pursuant to Civ. R. 60(B) or request the trial court "vacate" the June 21, 1988 orders; therefore, it was not a motion for relief from judgment regardless of the attached affidavit. See Bond v. Airway Development Corp. (1978), 54 Ohio St. 2d 363, 364.

Assume, arguendo, plaintiff had filed a Civ. R. 60(B) motion which fully comported with the requirements of the rule as interpreted by GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St. 2d 146, the defendants, as the losing parties, could have appealed the granting of that motion. The trial court not only attempted to create a silk purse from a sow's ear by manufacturing a non-existent Civ. R. 60(B) motion from an invalid motion for reconsideration, but also then ruled on said motion and deprived both plaintiff and defendants of their due process rights by concomitantly vacating the previous summary judgment leaving neither party with a final appealable order. This act deprived defendants of their right to respond to the pseudo Civ. R. 60(B) motion, thus denying them rights without due process of law. Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St. 3d 80, paragraph one of the syllabus.

In Stuart v. Stuart (Jan. 21, 1982), Cuyahoga App. No. 43515, unreported, this court dismissed an appeal in which the trial court treated a motion for reconsideration as a Civ. R. 60(B) motion. The majority in Stuart stated, "the motion for reconsideration filed in the instant case was clearly not a motion for relief from judgment." That is precisely the point in the case sub judice. The motion plaintiff filed was captioned as a "Motion for Reconsideration and Motion for Extension of Time in Which to File a Reply Brief," not a motion for relief from judgment, Civ. R. 60(B). The simple exercise of attaching an affidavit to every misguided motion at the trial level could conceivably elevate any motion to a Civ. R. 60(B) and perpetuate the interpretory difficulties the Ohio Supreme Court's decision in Pitts sought to avoid. The relief sought by plaintiff was merely for an extension of time, not vacation of judgment based on the criteria of Civ. R. 60(B) and GTE, supra.

Furthermore, the trial court's vacation of the June 21, 1988 journal entry and subsequent October 24, 1988 journalization of virtually the same order is a nullity since it flows from a motion for reconsideration after a final judgment. Pendall, supra; Pitts, supra.

Perhaps the issue here is philosophical. Does the practicing Ohio bar have the right to rely on the Rules of Civil Procedure and the law decided and promulgated by the Ohio Supreme Court. When the Supreme Court held as follows:

"(1) the Ohio Rules of Civil Procedure do not prescribe motions for reconsideration after final judgment in the trial court; Pitts supra at syllabus one, and

"(2) therefore, based upon the foregoing, *** '[Wle hold that the motion for reconsideration *** will not lie and all judgments or final orders from said motion are a nullity;' Pitts, supra 378, 381;" do inferior courts have the right to overrule the Supreme Court's decision in Pitts?

The Supreme Court while agreeing in general with the practice of allowing a trial court broad discretion in procedural matters clearly stated in Miller v. Lint (1980), 62 Ohio St. 2d 209, 215 as follows:

"However hurried a court may be in its efforts to reach the merits of a controversy, the integrity of procedural rules is dependent upon consistent enforcement because the only fair and reasonable alternative thereto is complete abandonment."

All trial courts and intermediate courts of appeal are charged with accepting and enforcing the law as promulgated by the Supreme Court not changing, modifying or ignoring that law. Courts of appeal remain "bound by and must follow decisions of the Ohio Supreme Court." Thacker v. Board of Trustees of Ohio State Univ. (1971), 31 Ohio App. 2d 17 at syllabus.

In summary:

On June 21, 1988 the trial court entered final judgment for defendants. Plaintiff had thirty days to file an appeal on the merits or until July 21, 1988. App. R. 4. The trial court's activity of July 13, 1988 was a nullity since the impetus for such activity was initiated by a motion for reconsideration. The Ohio Rules of Civil Procedure do not prescribe motions for reconsideration after final judgment in the trial court. Pitts, supra at syllabus one. The trial court based upon a motion for reconsideration granted a pseudo Civ. R. 60(B) motion vacating the final judgment of June 21, 1988 which the trial court had no jurisdiction to do. Even if the trial court had the authority to transmute the motion for reconsideration into a valid Civ. R. 60(B) motion, the trial court deprived defendants of due process since it failed to give defendants an opportunity to respond to the Civ. R. 60(B) motion before granting it. Although the filing of a Civ. R. 60(B) motion does not extend the time for appeal, a grant or denial of a genuine Civ. R. 60(B) motion is a final appealable order. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St. 2d 146, 150; Bourque v. Bourque (1986), 34 Ohio App. 3d 284. However, in the case sub judice, the Civ. R. 60 (B) motion emanated from a motion for reconsideration-filed after final judgment. Such motion does not lie and "all judgments or final orders from said judgment are a nullity." Pitts, supra at 381. Since the grant of the pseudo Civ. R. 60(B) motion was a nullity, defendant once again was deprived of due process since it could not appeal from an invalid or null order.

Defendants herein were deprived of due process of law on two separate occasions viz., (1) defendants-appellees were not given the right to respond to the pseudo Civ. R. 60(B) motion which the trial court created from the motion for reconsideration; and (2) defendants-appellees were precluded from appealing the granting of the invalid Civ. R. 60(B) motion which the trial court created from the motion for reconsideration. Since the plaintiff initiated the action which gave the trial court the opportunity to compound and perpetuate plaintiff's error, plaintiff should suffer the consequences, not defendants who were innocent of any wrongdoing and who relied on the law as promulgated by the Supreme Court and the Rules of Civil Procedure.

Plaintiff-appellant Conrail's appeal was untimely based upon their own initial and erroneous filing of a motion for reconsideration after final judgment that was a nullity not contemplated by the civil rules and, hence, did not suspend the time to file a notice of appeal. Accordingly, the only valid final appealable order entered by the trial court was the order dated June 21, 1988, all orders entered thereafter by the trial court were invalid and a nullity. Since plaintiff filed its notice of appeal one hundred forty-nine days after the only valid final appealable order, the court in the case sub judice is without jurisdiction to entertain Conrail's appeal on the merits. Pitts, supra; Bosco, supra; App. R. 4(A).

Accordingly defendants' motion to dismiss the appeal is granted. Appeal dismissed.

It is ordered that appellees recover of appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

PATTON, C.J., concurs.

APPEND IX

I. . THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT PLAINTIFF-APPELLANT WAS NOT A "PROTECTED PERSON" UNDER THE ST. PAUL LIABILITY POLICY, AND ERRED IN FAILING TO FIND THAT COVERAGE EXTENDED TO PLAINTIFF-APPELLANTS LOSS.

II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT THE INDEMNITY AGREEMENT WAS AMBIGUOUS, AND IN FAILING TO ENFORCE THE INDEMNITY AGREEMENT BETWEEN APPELLANT AND THE CONTRACTOR-APPELLEES.

1 Conrail assigned two erroiv for review which are included in the appendix but not addressed since this court lacks jurisdiction to entertain this appeal.

2 App. R. 4(A) as amended July 1, 1985 and 1989 provides the thirty-day time limit to file an appeal is suspended by the filing of (1) a Civ. R. 59 motion for new trial (2) motion for judgment n.o.v. pursuant to Civ. R. 50 (3) a motion to vacate a referee's report under Civ. R. 53(E) (7) or Juv. R. 40(D) (7), or (4) motion for findings of fact or conclusions of law, Civ. R. 52.