Bond v. Airway Development Corp., 77-1193

• Decision Date: 21 June 1978
• Docket Number: No. 77-1193,77-1193
• Citation: 377 N.E.2d 988,54 Ohio St.2d 363,8 O.O.3d 384
• Parties: , 8 O.O.3d 384 William W. BOND, Jr. and Associates, Appellants, v. AIRWAY DEVELOPMENT CORPORATION et al., Appellees.
• Court: Ohio Supreme Court

Page 363

54 Ohio St.2d 363

377 N.E.2d 988, 8 O.O.3d 384

William W. BOND, Jr. and Associates, Appellants, v. AIRWAY DEVELOPMENT CORPORATION et al., Appellees.

No. 77-1193.

Supreme Court of Ohio.

June 21, 1978.

Syllabus by the Court

The operation of App.R. 4(A) may be tolled only by either the filing of a motion for judgment notwithstanding the verdict, pursuant to Civ.R. 50(B), or the filing of a motion for new trial under Civ.R. 59. (Kauder v. Kauder, 38 Ohio St.2d 265, 313 N.E.2d 797, approved and followed.)

This cause was tried to the court, without the intervention of a jury, beginning on March 3, 1977, and, after a continuance, concluding on June 3, 1977. The trial court rendered a decision in favor of the defendants and against the plaintiffs on June 6, 1977.

On June 15, 1977, the court's decision was journalized and, on that same date, plaintiffs filed a motion for reconsideration. The motion for reconsideration was overruled on June 22, 1977.

On July 19, 1977, plaintiffs filed a notice of appeal from the June 6, 1977, decision, from the June 15, 1977, judgment entry and from the June 22, 1977, entry overruling the motion for reconsideration.

On August 1, 1977, defendants-appellees filed a motion to dismiss the appeal for the reason the appeal had not been timely filed. The Court of Appeals sustained appellees' motion to dismiss, and finding its judgment to be in conflict with the judgment of the Court of Appeals for Cuyahoga County in North Royalton Edn. Assn. v. Bd. of Edn. (1974), 41 Ohio App.2d 209, 325 N.E.2d 901, certified the record of the case to this court for review and final determination.

Ronald D. Keener, Dayton, for appellants.

Faust, Harrelson, Fulkner & McCarthy and John E. Fulker, Troy, for appellees.

COOK, Justice.

The sole issue for the consideration of this court is whether a motion for reconsideration is the equivalent of a motion for a new trial (Civ.R. 59) or a motion for judgment notwithstanding the verdict (Civ.R. 50(B)), and therefore tolls the 30-day requirement for filing a notice of appeal after entry of an appealable judgment or order in the trial court.

App.R. 4(A) states:

"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. * * * "

In the case at bar, plaintiffs' motion was clearly a motion for reconsideration and not a motion for a new trial or for judgment notwithstanding the verdict.

Not only was plaintiffs' motion captioned "Motion for Reconsideration," but it recited, "Plaintiffs, William W. Bond, Jr. and Associates, hereby requests (sic ) that this Court reconsider the decision rendered by this Court and filed in this Court on June 6, 1977."

Plaintiffs' motion complied with Civ.R. 7(B)(1) which provides:

"An application to the court for an order shall be by motion which, unless made during a hearing or 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.)

This court has spoken on the question presented by the cause sub judice. In Kauder v. Kauder (1974), 38 Ohio St.2d 265, 313 N.E.2d 797, we held, in a per curiam opinion:

" In addition to establishing the 30 day period for appeal, App.R. 4(A) provides the exclusive means by which the running of that time may be suspended. The operation of the rule may...