Olsen v. French

• Decision Date: 24 February 1983
• Citation: 456 A.2d 869
• Parties: Beverly Ann OLSEN and Craig A. Olsen v. Iona FRENCH.
• Court: Maine Supreme Court

Page 869

456 A.2d 869

Beverly Ann OLSEN and Craig A. Olsen v. Iona FRENCH.

Supreme Judicial Court of Maine.

Argued Nov. 10, 1982.

Decided Feb. 24, 1983.

Carl R. Wright (orally), Ted Susi, Skowhegan, for plaintiffs.

Wheeler, Arey & Millett, P.A., Clyde L. Wheeler (orally), Waterville, for defendant.

Before GODFREY, NICHOLS, ROBERTS, CARTER and WATHEN, JJ., and DUFRESNE, A.R.J.

DUFRESNE, Active Retired Justice.

The plaintiffs, Beverly Ann and Craig Olsen, appeal from a judgment entered in the Superior Court, Kennebec County, in favor of the defendant, Iona French, following an adverse jury verdict. They complain of reversible error at the trial level for rendering judgment in favor of the defendant, because 1) there was no evidence at trial warranting the jury to return a verdict for the defendant on the issue of negligence, 2) the defendant improperly introduced in the case evidence previously ruled inadmissible at pretrial hearing on motion in limine, and 3) the presiding justice erroneously refused to give the plaintiffs' requested instructions on excessive speed. We deny the appeal and affirm the judgment below.

Facts

The evidence disclosed that, between 6:30 and 7:00 o'clock on the morning of January 20, 1976, the Olsens were on their way to work, the plaintiff husband doing the driving. ¹ The weather was clear; the road surface, though sanded, was wet and showed patches of ice all along the way. The Olsens successfully descended the "forty-to-sixty-degree" downgrade of Water Street in Waterville, Mr. Olsen stopping his car close to the bottom of the hill to avoid striking the vehicle in front of him while that automobile was making a left turn. Mrs. French, the defendant, was not so fortunate. Traveling two car lengths behind the Olsen car at a speed of ten miles per hour, she also set out to stop, but her car skidded on ice in the road and struck the rear of the Olsen auto.

Procedural background

The jury verdict for the defendant French was returned to the court on November 30, 1981. Entry of judgment on the jury verdict was made by the clerk of the court that same day, even though there was then pending and undisposed of a cross-claim by the defendant against the plaintiff, Craig Olsen. Notwithstanding the absence of a final judgment because of noncompliance with the provisions of Rule 54(b), M.R.Civ.P., the plaintiffs on December 8, 1981, filed a motion for a new trial pursuant to Rule 59(a), M.R.Civ.P., which motion, so far as the docket entries indicate, was never acted upon by the court and remains undisposed of on this record. On April 28, 1982, the plaintiffs filed their first notice of appeal to the Law Court. On May 4, 1982, the Law Court, noticing that the appeal was premature because of the absence of a final judgment, ordered a remand of the case to the Superior Court for disposition of all pending claims or, in the alternative, for a determination by the presiding justice of the appropriateness of the entry on the docket of a Rule 54(b) order, the case to be restored to the Law Court docket upon compliance with the order of remand and the filing of a timely second notice of appeal. On May 25, 1982, the order of dismissal of the cross-claim dated May 24, 1982, was noted on the docket by the clerk. On May 28, 1982 the plaintiffs filed their second notice of appeal, which was immediately noted on the docket. It reads as follows:

Notice is hereby given that Beverly A. Olsen and Craig A. Olsen, Plaintiffs in the above captioned matter, hereby appeal to the Law Court from the Judgment entered in this action on November 30, 1981; said Judgment not becoming final until Defendant's cross-claim was dismissed pursuant to Order dated May 24, 1982.

We note that there was no reentry or renotation upon the docket of the original judgment entered prematurely upon the docket on November 30, 1981.

Although neither party has raised the question of jurisdiction, it is our duty to assure ourselves of, and examine, our own jurisdiction before deciding the merits of an appeal. The Law Court on its own initiative must take note of matters raising questions as to its own jurisdiction. Coates v. Maine Employment Security Commission, 428 A.2d 423, 425, n. 3 (Me.1981); Brann v. State, 424 A.2d 699, 702 (Me.1981); Look v. State, 267 A.2d 907, 908-09 (Me.1970).

The plaintiffs' second appeal in the instant case filed with the court on May 28, 1982 purported to be taken from the original judgment for the defendant entered on the court's docket on November 30, 1981, long after the time limits within which an appeal from judgment is permissible under the provisions of Rule 73(a), M.R.Civ.P., and if that November 30th notation upon the docket was effective to confer finality on that particular judgment, then the present appeal would be too late as the time periods for appeal are jurisdictional. Remick v. Erin, Inc., 414 A.2d 896 (Me.1980). See Town of South Berwick Planning Board v. Maineland, Inc., 409 A.2d 688, 689 (Me.1980), and cases cited therein. See also USM Corporation v. GKN Fasteners Ltd., 578 F.2d 21, 22 (1st Cir.1978).

But the clerk's notation of judgment on November 30, 1981, was premature and did not trigger the commencement of the running of the appeal period. Indeed, under Rule 58, M.R.Civ.P., it is the notation of a judgment in the civil docket in accordance with Rule 79(a) which constitutes the entry of the judgment and the rule expressly provides that the judgment is not effective before such entry. Rule 58 further states that "[u]nless the court otherwise directs and subject to the provisions of Rule 54(b), judgment upon the verdict of a jury shall be entered forthwith by the clerk." (Emphasis added). When the clerk on November 30, 1981, entered the reference judgment on the jury verdict, it is undisputed that there was a pending cross-claim upon which no action had been taken by the court. Section 54(b) provides:

Except as otherwise provided in Rule 80(d) [not applicable], when more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction any order or other form of decision, however designated, .... which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. (Emphasis supplied).

Hence, noncompliance with the requirements of Rule 54(b) left the judgment of November 30, 1981, notwithstanding its notation upon the docket, in an interlocutory status; its notation on the docket did not terminate the action as to any of the claims or parties, nor did it cause the time period for appeal to run, and, as the rule provides, the decision remained subject to revision or further trial court action in connection thereto at any time before the entry of the final judgment, i.e. one adjudicating all the claims and the rights and liabilities of all the parties.

A "first" appeal, taken originally in the absence of the determination and direction for the entry of judgment required by Rule 54(b), is abortive and must be dismissed, but the questions raised by a "first" appeal will be considered upon the merits, where a second appeal, as in the instant case, was timely taken from that initial judgment after it became a final judgment following the disposition of all pending claims. See Seaboard Surety Company v. Dale Construction Co., 230 F.2d 625 (1st Cir.1956).

The clerk's failure on May 25, 1982, when the dismissal of the cross-claim was noted on the docket, to enter anew thereon at the same time a notation of the initial judgment entered prematurely on November 30, 1981, did not cause the plaintiffs' second appeal also to be premature. The initial judgment still noted on the docket, together with the notation of the order of dismissal of the cross-claim, just as effectively terminated the litigation as would have been the case, had the clerk gone through the motions of making a new notation of the original judgment. Mindful of the admonition to construe the rules so as to secure the just, speedy and inexpensive determination of every action (Rule 1, M.R.C.P.), we will not exalt form over substance by requiring mere duplicative action on the part of the clerk. Jetco Electronic Industries Inc. v. Gardiner, 473 F.2d 1228 (5th Cir.1973); Sepia Enterprises, Inc. v. City of Toledo, 462 F.2d 1315 (6th Cir.1972); Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). ²

Merits

Verdict contrary to evidence

The plaintiffs initially argue that there was error below, because, as they view the evidence, they say the jury under no circumstances could return a verdict for the defendant on the issue of negligence. We disagree.

First, we must decide whether that issue is open for review under the circumstances of this case. We noted previously that, unlike the defendant, the plaintiffs failed to file at trial a motion for a directed verdict at the close of all the evidence pursuant to Rule 50(a), M.R.Civ.P., nor did they move for judgment notwithstanding the jury verdict at any time under Rule 50(b), M.R.Civ.P. On the other hand, on December 8, 1981, they did make a motion for a new trial on the same grounds which they now advance on appeal. Thus, the new trial motion was filed prior to the time when the judgment of November 30, 1981 became final and efficient with the entry of the cross-claim dismissal order of May 25, 1982....