Consolidated Rail Corp. v. Forest Cartage Co.

• Decision Date: 06 September 1990
• Docket Number: No. 56734,56734
• Court: Ohio Court of Appeals
• Parties: CONSOLIDATED RAIL CORPORATION, Appellant, v. FOREST CARTAGE COMPANY, INC., et al., Appellees. *

Page 333

68 Ohio App.3d 333

588 N.E.2d 263

CONSOLIDATED RAIL CORPORATION, Appellant, v. FOREST CARTAGE COMPANY, INC., et al., Appellees. ^*

No. 56734.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Sept. 6, 1990.

Syllabus by the Court

1. The filing of a motion for reconsideration after a final appealable order does not suspend the time for filing a notice of appeal.

2. The Ohio Rules of Civil Procedure do not prescribe motions for reconsideration after a final judgment in the trial court and such motion is a nullity when entered after a final appealable order. (Pitts v. Dept. of Transportation [1981], 67 Ohio St.2d 378, 21 O.O.3d 238, 423 N.E.2d 1105, followed.)

Gallagher, Sharp, Fulton & Norman, Forest A. Norman and John F. Hill, Cleveland, for appellant.

Jacobson, Maynard, Tuschman & Kalur Co., L.P.A., William D. Bonezzi and Kevin M. Norchi, Cleveland, for appellees.

KRUPANSKY, Judge.

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 & Marine 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 Conrail'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 plaintiff's 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, 16 OBR 184, 185, 475 N.E.2d 164, 165; Lorber v. Norvelis (Aug. 31, 1989), Cuyahoga App. No. 57481, unreported, 1989 WL 101800. 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, 23 O.O.3d 551, 552, 433 N.E.2d 612, 614.

The trial court's orders of June 21, 1988 which denied plaintiff's 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. Plaintiff's "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 case.

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

"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 Civ.R. 50(B); (2) for a new trial under Civ.R. 59 * * *."

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

"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 opinion in McCue v. Buckeye Union Ins. Co. (1979), 61 Ohio App.2d 101, 15 O.O.3d 103, 399 N.E.2d 127, syllabus: "Civil Rule 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."

In light of the above circumstances, 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, 19 OBR 246, 483 N.E.2d 870.

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, 520 N.E.2d 26, 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, 520 N.E.2d at 27, 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, 531 N.E.2d 713, 715; Pitts v. Dept. of Transportation (1981), 67 Ohio St.2d 378, 379-381, 21 O.O.3d 238, 239-240, 423 N.E.2d 1105, 1106-1107; Sakian v. Taylor (1984), 18 Ohio App.3d 62, 63, 18 OBR 175, 176, 480...