Noble v. Colwell

• Decision Date: 12 July 1989
• Docket Number: No. 88-230,88-230
• Citation: 540 N.E.2d 1381,44 Ohio St.3d 92
• Parties: NOBLE, Admr., Appellee, v. COLWELL et al., Appellants.
• Court: Ohio Supreme Court

Page 92

44 Ohio St.3d 92

540 N.E.2d 1381

NOBLE, Admr., Appellee, v. COLWELL et al., Appellants.

No. 88-230.

Supreme Court of Ohio.

Submitted March 7, 1989.

Decided July 12, 1989.

Syllabus by the Court

An order which adjudicates one or more but fewer than all the claims or the rights and liabilities of fewer than all the parties must meet the requirements of R.C. 2505.02 and Civ.R. 54(B) in order to be final and appealable.

Just after midnight on August 16, 1984, nineteen-year-old Ricky Dean Noble was killed in a single-car accident on U.S. Route 42 in Delaware County. The car, a 1967 Ford Mustang, was traveling at an excessive speed. At a point on Route 42 known as Cashman's Curve or Corner, the car left the road and split apart when it hit a tree. In the car with the decedent was his long-time friend and co-worker, seventeen-year-old defendant Michael L. Colwell, who was injured but survived the crash. The car was registered in the name of Barbara Colwell, Michael's mother.

On March 12, 1985, Donald Noble, Ricky Noble's father and the administrator of his estate, filed an action in the Court of Common Pleas of Delaware County setting forth two claims. The first claim was a survivor's action with two counts: Count one charged negligent driving on the part of Michael Colwell coupled with allegations asserting negligent entrustment of the automobile by its owner Barbara Colwell; count two alleged that Michael Colwell recklessly, willfully, and wantonly operated the motor vehicle involved in the accident. The second claim asserted a wrongful death action on behalf of the parents and next of kin of the decedent against defendants Michael and Barbara Colwell. Upon his own motion, Clarence Colwell, father of Michael Colwell, was joined as a party defendant.

The defendants answered the plaintiff's complaint denying all allegations and asserting counterclaims alleging willful and wanton operation of the car by plaintiff's decedent Ricky Noble resulting in injury to Michael Colwell, loss of Michael's services to his father, and damage to Barbara Colwell's car. Plaintiff answered the counterclaims denying nearly all the allegations and raised the defense of contributory negligence.

A jury trial was held to answer the single question of who was operating the 1967 Mustang at the time of the accident. The trial was bifurcated as to the issues of liability and damages. The parties stipulated that "[t]here will be no mention by Plaintiff of the defenses of contributory negligence or negligent entrustment, those issues being reserved for further proceedings in this matter."

Just prior to trial plaintiff's counsel made an oral motion seeking leave to impeach at trial the credibility of defendant Michael Colwell by inquiring into the circumstances surrounding a previous indictment against him based on unspecified criminal conduct unrelated to the automobile accident. This unspecified criminal conduct occurred sometime after the accident at issue in this case, but prior to trial. On June 10, 1986, the same judge presiding in this action entered a judgment in the aforementioned criminal action finding Michael Colwell not guilty by reason of insanity. The record shows that Colwell was restored to reason prior to the jury trial in this case. The court overruled plaintiff's motion.

The only eyewitness to the accident to testify at trial was Michael Colwell, who stated that plaintiff's decedent was driving the car. However, a number of expert witnesses opined that Colwell was the driver. This testimony was based upon the injuries suffered by the occupants of the car, the skid marks, and the damage sustained by the automobile. The jury found that the decedent, Ricky Noble, was the driver of the car. The entry of the court, dated January 28, 1987, journalizing that jury decision states:

"This case came on for trial on January 20, 1987, and January 21, 1987, before the Court and a duly impaneled Jury, and the issue having been duly tried and the Jury having duly rendered its Verdict in favor of the Defendant and against the Plaintiff, the Court entered Judgment on said Verdict and Ordered that further proceedings in this case be continued pending the scheduling of a Second Pretrial Conference."

After oral argument the plaintiff's motion for a new trial filed February 10, 1987 was overruled on March 16. By agreement prior to this order, defendant Barbara Colwell was dismissed with prejudice from the action. Plaintiff appealed to the court of appeals on April 10, 1987 and raised two assignments of error:

(1) The trial court erred to the prejudice of the plaintiff in denying counsel for plaintiff the opportunity to cross-examine defendant on his judicial admission of insanity; and

(2) The jury verdict was against the manifest weight of the evidence.

The court of appeals in a split decision sustained the first assignment of error, finding that under these facts it was an abuse of discretion constituting prejudicial error to limit the cross-examination of Colwell. The dissent in the court of appeals below noted that the question presented is a novel one with no relevant civil cases on point.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

McCarthy & Becker, Dennis M. McCarthy and William C. Becker, Columbus, for appellee.

Daniel B. Bennington, Delaware, and Walter J. Seimer, for appellants.

WRIGHT, Justice.

This court will grant a motion to certify only if there is a substantial constitutional question or if the case is of public or great general interest. Preamble and Rule II of the Rules of Practice of the Supreme Court. Novel questions of law or procedure appeal not only to the legal profession but also to this court's collective interest in jurisprudence. Thus, it is with regret that we may not address the substantive legal issue raised on appeal since we hold that this court does not have subject-matter jurisdiction over this matter. This appeal did not emanate from a final appealable order. ¹

" * * * [T]he entire concept of 'final orders' is based upon the rationale that the court making an order which is not final is thereby retaining jurisdiction for further proceedings. A final order, therefore, is one disposing of the whole case or some separate and distinct branch thereof." Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio St.2d 303, 306, 56 O.O.2d 179, 180, 272 N.E.2d 127, 129.

R.C. 2505.02 defines a "final order" as:

"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. * * * "

This case is a straightforward civil action. We need not embark upon the analysis required to determine if this action is in the nature of a special proceeding. " * * * [T]he term, 'civil action,' as used in our statutes embraces those actions which * * * were denoted as actions at law or suits in equity; * * * that other court proceedings of a civil nature come, generally at least, within the classification of special proceedings." In re Estate of Wyckoff (1957), 166 Ohio St. 354, 357, 2 O.O.2d 257, 259, 142 N.E.2d 660, 663; see, also, Tilberry v. Body (1986), 24 Ohio St.3d 117, 24 OBR 308, 493 N.E.2d 954; Amato v. General Motors Corp. (1981), 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452. This case also does not involve the third category of an order that vacates or sets aside a judgment or grants a new trial. We are concerned here with whether this appeal is from an order which affects a substantial right which in effect determines an action and prevents a judgment. "[A] 'substantial right' * * * involves the idea of a legal right; and that right is one which is enforced and protected by law." North v. Smith (1906), 73 Ohio St. 247, 249, 76 N.E. 619; Union Camp Corp. v. Whitman (1978), 54 Ohio St.2d 159, 8 O.O.3d 155, 375 N.E.2d 417.

Although the parties stipulated that the plaintiff would not raise the defense of contributory negligence during the trial, ² that issue in this case would go to defendants' right to and amount of damages. Thus, it may well be argued that the order that set forth the jury's verdict is a final order for purposes of R.C. 2505.02, since it affects a substantial right of the plaintiff in that it forecloses plaintiff from further litigation of his negligence action against the remaining defendants and prevents plaintiff from obtaining a judgment against them. The only action left for the court in this case would be an entry of dismissal of plaintiff's complaint, except for the fact that unresolved counterclaims exist in this action and therefore Civ.R. 54(B) applies. ³ "[T]he words 'claim for relief,' as used in Civ.R. 54(B), are synonymous with 'cause of action.' " Amato v. General Motors Corp., supra, at 256, 21 O.O.3d at 160, 423 N.E.2d at 454.

Ohio Civ.R. 54(B) is based upon Fed.R.Civ.P. 54(b) as amended in 1961. (Staff Note to Civ.R. 54[B].) Under the federal rules, "an action that includes a claim and a counterclaim is one presenting 'more than one claim for relief,' whether the counterclaim is compulsory or permissive, though it must be a proper counterclaim, not merely a defense 'mistakenly designated' as a counterclaim.

"Since the claim-counterclaim action presents more than one claim for relief under the Rule, it follows that when the court adjudicates the claim but the counterclaim remains pending, or vice versa, and does not make an express determination that there is no just reason for delay and gives an express direction for the entry of judgment, the order is interlocutory and remains so until the entry of judgment adjudicating all the claims and all the rights and...