First Bank v. Mascrete, Inc.

684 N.E.2d 38, 79 Ohio St. 3d 503
CourtOhio Supreme Court
DecidedOctober 1, 1997
DocketNo. 96-907
StatusPublished
Cited by44 cases

This text of 684 N.E.2d 38 (First Bank v. Mascrete, Inc.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First Bank v. Mascrete, Inc., 684 N.E.2d 38, 79 Ohio St. 3d 503 (Ohio 1997).

Opinion

Moyer, C.J.

The question presented in this case is whether a contempt hearing that results in a money judgment can be considered a trial for purposes of a Civ.R. 59 motion for a new trial. For the reasons that follow, we hold that it can, and we therefore reverse the judgment of the court of appeals.

App.R. 4(A) provides that a notice of appeal must be filed, generally, within thirty days of the judgment being appealed. App.R. 4(B)(2) provides that “[i]n a civil case or juvenile proceeding, if a party files a timely motion for * * * a new trial under Civ.R. 59(B), * * * the time for filing a notice of appeal begins to run as to all parties when the order disposing of the motion is entered.”

The record reveals that Roslovic’s notice of appeal was filed on January 30, 1995, twenty-six days late in the absence of a tolling event, but only eighteen days after the ruling on the motion for a new trial.

[506]*506App.R. 4(B)(2) is clear. If the proceeding at issue was a trial, properly subject to a Civ.R. 59 motion, the notice of appeal was timely filed and the court of appeals had jurisdiction to consider the merits of the appeal. The only question for this court, then, is whether the proceeding at issue was a trial for Civ.R. 59 purposes.

Civ.R. 59 provides simply:

“(A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds * *

Civ.R. 59 contains no definition of “trial.” Nor, as appellant Roslovic observes, is the word “trial” defined anywhere in the Ohio Rules of Civil Procedure. In the absence of such a definition, the court of appeals concluded that a hearing is not a trial, and that without a trial there can be no proper motion for a new trial and no tolling of the time for appeal.

In reaching its conclusion, the court of appeals relied on a concurrence in one of its own unreported cases, In re Trust of Hosier (Sept. 16,1988), Pickaway App. No. 87 CA 37, unreported, 1988 WL 101217 (Stephenson, J., concurring), which cited Brown v. Coffman (1983), 13 Ohio App.3d 168, 169-170, 13 OBR 203, 204, 468 N.E.2d 790, 791. Hosier and Brown relied on the R.C. 2311.01 and 2311.02 definitions of the words “trial” and “issues” to conclude that a contempt hearing cannot be subject to a Civ.R. 59 motion for a new trial. We reject the reasoning of those cases.

Though statutory definitions are not binding on the Ohio Rules of Civil Procedure, where the rules are silent, statutory definitions can serve as a helpful guide. R.C. 2311.01 defines a “trial” as “a judicial examination of issues, whether of law or of fact, in an action or proceeding.”

Under this broad definition, Roslovic’s contempt hearing appears to have all the elements of a trial. Issues of both law and fact were examined by a judge in a courtroom in a proceeding that included the presentation of at least some documentary evidence, the arguments of counsel, and entry of a judgment for damages by the court.

R.C. 2311.02 provides: “Issues arise on the pleadings where a fact or conclusion of law is maintained by one party and controverted by the other. * * *”

The court of appeals relied on this language for the conclusion that issues cannot arise in the absence of pleadings. We do not agree.

We conclude that the R.C. 2311.02 definition of “issues” does not exclude the possibility that issues can be examined in proceedings that are not initiated by pleadings. Neither the text of Civ.R. 59, nor the plain language of R.C. 2311.01 defining a trial, nor the body of case law, state or federal, supports such a narrow interpretation of the word “issues.”

[507]*507Furthermore, the restrictive definition used by the court of appeals in this case is inconsistent with the use of the word “trial” as it appears elsewhere in the Civil Rules.

Civ.R. 15(B), for example, provides:

“When issues not raised in the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. Failure to amend as provided herein does not affect the result of the trial of these issues. * * *”

Civ.R. 15(B) speaks of “issues not raised in the pleadings,” a phrase which must refute the notion that issues may arise only from a pleading, which in turn refutes the notion that a trial, being an examination of issues, can be initiated only by pleadings.

Since the appellate court’s limited definitions of “trial” and “issues” conflict with the use of those terms elsewhere in the Civil Rules, we must reject those definitions. We hold, therefore, that a contempt hearing may be considered a trial for purposes of a Civ.R. 59 motion for a new trial.

We further hold that the proper test for determination of whether a proceeding is a trial, subject to a Civ.R. 59 motion for a new trial, is an inquiry that focuses on the substance of the proceeding rather than on its form. A proceeding is considered a trial for purposes of Civ.R. 59 when the indicia of trial substantially predominate in the proceeding. In deciding whether a proceeding rises to the level of a trial for Civ.R. 59 purposes, courts should consider the nature of the individual proceeding.

A list of relevant indicia may include (1) whether the proceeding was initiated by pleadings, (2) whether it took place in court, (3) whether it was held in the presence of a judge or magistrate, (4) whether the parties or their counsel were present, (5) whether evidence was introduced, (6) whether arguments were presented in court by counsel, (7) whether issues of fact were decided by the judge or magistrate, (8) whether the issues decided were central or ancillary to the primary dispute between the parties, (9) whether a judgment was rendered on the evidence. The list of factors is not intended to be exhaustive. Other indicia may be considered. The focus of the inquiry, however, is whether there is a substantial predominance of indicia of trial such that the proceeding is properly characterized as a trial for Civ.R. 59 purposes.

Applying the test to the proceeding before us, we conclude that the indicia of trial substantially predominated in Roslovic’s contempt hearing. Indeed, the only indicium of trial not present in the contempt hearing is the initiation of the [508]*508proceeding by pleadings. We do not agree with the court of appeals that its formalistic distinction is intended by the Civil Rules to determine whether a Civ.R. 59 motion is appropriate or whether its filing tolls the period for appeal.

Other Ohio courts of appeals have reached the conclusion we reach today. In N. Royalton Edn. Assn. v. N. Royalton Bd. of Edn. (1974), 41 Ohio App.2d 209, 70 O.O.2d 434, 325 N.E.2d 901, the court held that a motion for reconsideration filed following the grant of a motion to dismiss a complaint could be treated as a motion for a new trial for purposes of the App.R. 4(B)(2) tolling provision despite the fact that no actual trial had been held. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
684 N.E.2d 38, 79 Ohio St. 3d 503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-bank-v-mascrete-inc-ohio-1997.