Martin v. Lilly

• Decision Date: 12 March 1986
• Docket Number: No. 82-132-A,82-132-A
• Citation: 505 A.2d 1156
• Parties: Karen MARTIN et al. v. Maria LILLY and Dean Auto Body, Inc. ppeal.
• Court: Rhode Island Supreme Court

Page 1156

505 A.2d 1156

Karen MARTIN et al. v. Maria LILLY and Dean Auto Body, Inc.

No. 82-132-Appeal.

Supreme Court of Rhode Island.

March 12, 1986.

Anthony T. Jackvony, Oleg Nikolyszyn, Jackvony Dimitri & Shapira, Providence, for plaintiff.

John J. Bevilacqua, Anthony E. DeSimone, Bevilacqua DeSimone & Gosz, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on the appeal of Dean Auto Body, Inc. (Dean), from a judgment entered in the Superior Court in favor of the plaintiffs. We affirm the judgment. The facts and background of the case are as follows.

On June 20, 1972, two cars collided at an intersection in Providence. In one car, owned by George B. Bibeault (George), were Beatrice Bibeault (Beatrice), George's wife, and Karen Martin (Karen), the driver. The other car was driven by Maria Lilly (Maria) and allegedly owned by Dean. As a result of this accident, three actions for damages were filed in the District Court.

The first action was brought on July 3, 1974, by George against Dean for the damage done to his car. The second action was filed on October 21, 1974, by Maria and her husband, Moses Lilly, against George and Karen. These two actions were consolidated, by order, on November 6, 1974. On April 21, 1975, the third action was filed by Karen, George, and Beatrice against Dean and Maria for personal injuries suffered in the accident. By stipulation, filed April 21, 1975, this case was consolidated with the two previously consolidated cases. The cases filed against George and Dean were brought pursuant to G.L.1956 (1968 Reenactment) § 31-33-6, which makes the owner of a motor vehicle liable for the acts of any driver who has his consent to use the vehicle.

George and Karen answered the action brought by the Lillys. Dean filed a general denial to allegations set forth in the property-damage action brought by George but did not file an answer to the personal injury action brought by Karen, George, and Beatrice.

After trial in the District Court, judgment was entered for $3,500 in favor of Beatrice against Maria and Dean; for $1 in favor of Karen against Maria; and for $730.70 in favor of George against Maria and Dean. In the third case, Maria and Moses Lilly recovered nothing. Dean appealed to the Superior Court on February 6, 1976,those judgments in which it was held liable and requested a jury trial. ¹

The two cases remained consolidated for trial in the Superior Court, and trial began on May 20, 1980. The plaintiffs presented, through the testimony of Karen, evidence of Dean's ownership of the vehicle driven by Maria. Karen testified that she asked Maria for her license and registration at the scene of the accident. Karen then testified that Maria gave her the license but said that the car belonged to Dean Auto Body. Defense counsel's hearsay objection was overruled.

On the afternoon of May 21, 1980, the second day of trial, after plaintiffs had rested and the defense had presented its second witness, Dean's counsel informed the court and plaintiffs' counsel that he intended to move to amend its answer to assert the defenses of lack of consent and lack of ownership. The following day, the last day of trial, a motion accompanied by a proposed amended answer was filed with the court. Both counsel presented arguments, and Dean made an offer of proof indicating the evidence it would produce to dispute ownership.

The trial justice denied Dean's motion, holding that Dean was required to plead affirmatively lack of ownership and lack of consent in its answer. Because Dean failed to plead these so-called affirmative defenses, the trial justice held that they had been waived. Furthermore, the trial justice pointed out that Dean had never answered the action brought by Karen, George, and Beatrice for personal injuries. Finally, the trial justice refused to allow an amendment under Rule 15 of the Superior Court Rules of Civil Procedure because it would be impossible for plaintiffs to verify ownership since registry records are kept for only three years. For the foregoing reasons, Dean was not allowed to present evidence to dispute ownership.

At the close of plaintiffs' case and also at the close of the evidence, Dean moved for a directed verdict. The trial justice, after reviewing the evidence, denied the motions, holding that as a matter of law there were factual issues to be tried by the jury. ²

This appeal raises three issues (two of which were raised by counsel): (1) whether Dean's appeal of the action brought by George for property damage is properly before this court; (2) whether the trial justice's denial of the motion to amend Dean's answers to add the defenses of lack of consent and ownership was proper; and (3) whether the trial justice's denial of the motion for directed verdict was proper. We answer the first issue in the negative and the second and third issues in the affirmative.

I

THE VALIDITY OF DEAN'S APPEAL OF

GEORGE B. BIBEAULT V. DEAN AUTO BODY, INC.

The three actions that arose from this accident were consolidated in the District Court. The two cases appealed to the Superior Court remained consolidated for trial in that court. The first action, George B. Bibeault v. Dean Auto Body, Inc., for property damage, was docketed as civil action No. 76-747 (No. 76-747). The second case, Karen Martin, Beatrice Bibeault and George B. Bibeault v. Maria Lilly and Dean Auto Body, Inc., sought damages for personal injury and was docketed as civil action No. 76-749 (No. 76-749).

Our examination of the record has disclosed that Dean did not file a notice of appeal of the judgment entered in No. 76-747. Therefore, this purported appeal is not before us.

Rule 42(a) of the Superior and District Court Rules of Civil Procedure allows the consolidation of actions that involve "common question[s] of law and fact." It is important, however, to remember that consolidation is allowed to avoid unnecessary costs or delay and does not result in a merger of the cases. This rule was first enunciated in Giguere v. Yellow Cab Co., 59 R.I. 248, 250-51, 195 A. 214, 216 (1937), where the court held:

"The consolidation of cases for trial only does not operate as a merger of the different cases into one, but merely permits them to be tried together before the same justice or jury to avoid unnecessary delay and expense in the administration of justice. The causes of action remain distinct throughout such a trial * * *."

We have continued to adhere to this view. See, e.g., Mendes v. Mendes, 111 R.I. 571, 577, 305 A.2d 97, 101 (1973); Marandola v. Hillcrest Builders, Inc., 102 R.I. 46, 49-50, 227 A.2d 785, 788 (1967); Rich v. Rich, 94 R.I. 220, 222, 179 A.2d 498, 500 (1962); see also 1 Kent, R.I. Civ. Prac. § 42.2 at 336-38 (1969).

The consolidation for trial of Nos. 76-747 and 76-749 did not result in their merging into one case. Each case remained separate, and judgments were entered under their respective docket numbers. Because they continued to be separate and distinct actions, Dean was required to file a notice of appeal for each judgment. Dean did not file a notice of appeal for No. 76-747; therefore, we hold that the appeal of No. 76-747 is not properly before us. In order that an appeal be properly before this court, Rule 3(a) of the Supreme Court Rules of Appellate Procedure requires the timely filing of a notice of appeal ³. Rule 3(a) makes clear that failure to file a timely notice of appeal renders any purported appeal invalid. Cases applying Rule 3(a) have suggested that this requirement may be a jurisdictional prerequisite. Hood v. Hawkins, 478 A.2d 181, 184 (R.I.1984); Smith v. Smith, 119 R.I. 642, 645, 382 A.2d 182, 183 (1978). But see Martin v. Estrella, 107 R.I. 247, 250-51, 266 A.2d 41, 44-45 (1970). Whether or not this requirement is jurisdictional, it is certainly a necessary condition precedent to the filing of an appeal. Weisberger, Rhode Island Appellate Practice 14-15 (1985); see also Title Investment Co. of America v. Fowler, 504 A.2d 1010, 1011-12 (R.I.1986).

To file a proper notice of appeal, an appellant must follow the requirements of Rule 3(c), which states, "[t]he notice of appeal shall specify the party or parties taking the appeal and shall designate the judgment, order or decree or part thereof appealed from." The court files in these cases contain one notice of appeal. This notice of appeal, filed on July 8, 1980, only specified an appeal from the judgment in No. 76-749. There is no notice of appeal in civil action No. 76-747, and the notice filed with civil action No. 76-749 did not include No. 76-747, as required by Rule 3(c), and therefore cannot be treated as a notice of appeal from the judgment in No. 76-747. Finally, Dean failed to comply with a second condition precedent to a valid appeal. Rule 3(a) requires the payment of a filing fee in order to perfect an appeal. Rule 5(a) requires that "[e]very person appealing from a judgment * * * shall pay a filing fee * * *." We have stated that payment of the proper fee is a second prerequisite to a valid appeal. Smith v. Smith, 119 R.I. at 645 n. 1, 382 A.2d at 183 n. 1. As Rule 5(a) makes clear, each judgment requires a separate fee. If this were a joint appeal, our rules would have required two separate filing fees. Sup.Ct.R. 5(a). Only one fee was paid in this case, and that fee accompanied the notice of appeal from the judgment in No. 74-749.

Having concluded that the two conditions precedent for a valid appeal were not complied with in No. 76-747, we hold that only No. 76-749 is properly before us, and we dismiss the purported appeal from the judgment in No. 76-747.

II DENIAL OF THE MOTION TO AMEND

After plaintiffs had rested and after the defense had presented two witnesses, Dean filed a motion to amend its answer to assert the defenses of lack of ownership and lack of consent. The trial justice denied this motion, and Dean appealed. Before reaching the merits on this issue, we...