Steadley v. Montanya
| Decision Date | 22 July 1981 |
| Docket Number | No. 80-1260,80-1260 |
| Citation | 423 N.E.2d 851,67 Ohio St.2d 297 |
| Parties | , 21 O.O.3d 187 STEADLEY, Appellant, v. MONTANYA, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
A trial court may vacate a judgment overruling a motion for a new trial pursuant to Civ.R. 60(B) under the following circumstances:
(1) The trial court acknowledged an oral promise to the movant to hold a hearing prior to ruling;
(2) The movant relied upon the promise;
(3) The movant had no actual notice of the ruling prior to expiration of his time for appeal from the original judgment;
(4) The motion for relief from judgment was timely; and
(5) The judgment was vacated in good faith and not as a subterfuge to circumvent the jurisdictional time for filing a notice of appeal.
Diane L. Steadley, formerly Diane Schnacke, appellant herein, filed a complaint in the Court of Common Pleas alleging negligence on the part of Joanne Carol Montanya, appellee herein, as a result of an intersection accident on June 22, 1975. Defendant answered, denying negligence and pleading the affirmative defense of contributory negligence. On December 4, 1978, judgment was entered pursuant to a jury verdict for plaintiff for $23,000.
A timely motion for a new trial was served on December 18, 1978. The motion was overruled by judgment entry of the trial court on March 15, 1979. On May 15, 1979, defendant moved to vacate the judgment overruling her motion for a new trial on the basis that the trial court had promised to grant an oral hearing on the motion. The motion to vacate the judgment was sustained, and an oral hearing was held on June 12, 1979, following which the trial court again overruled the motion for a new trial. An appeal was taken within 30 days of the judgment entry.
The Court of Appeals found that the appeal was timely and reversed the judgment of the trial court on the basis that the trial court erred in failing to charge on contributory negligence.
The cause is now before this court upon the allowance of a motion to certify the record.
Diemert, Schmidlin & Dyson Co., L.P.A., Joseph W. Diemert, Jr., L. James Juliano, Jr., and Raymond J. Schmidlin, Cleveland, for appellant.
Meyers, Stevens & Rea Co., L.P.A., Richard F. Stevens, Reginald P. Trubey, Jr., and Joseph G. Schneider, Cleveland, for appellee.
The first issue is whether a timely appeal was taken from the trial court's judgment.
App.R. 4(A) requires that a notice of appeal be filed with the clerk of the trial court within 30 days of the entry of the judgment appealed from. The running of the time for filing the notice of appeal is suspended by a timely motion for a new trial under Civ.R. 59 and is to be computed from the entry of the order granting or denying the motion. The trial court overruled defendant's motion for new trial on March 15, 1979, which is the date upon which the 30 days for filing a notice of appeal from the judgment of December 4, 1978, would commence running. However, on May 15, 1979, defendant moved to vacate the judgment entry of March 15, 1979, on the basis that no notice had been received of the judgment and that the trial court had orally promised defendant that he would hold an oral hearing upon the motion prior to ruling thereon. The trial court sustained the motion to vacate and scheduled an oral hearing, after which the trial court again entered judgment overruling the motion for a new trial. An appeal was taken within 30 days of that order.
The notice of appeal is jurisdictional. The Court of Appeals had no jurisdiction to consider the merits of the judgment of December 4, 1978, unless the trial court's order vacating the judgment of March 15, 1979, was proper.
The trial court did not abuse its discretion in vacating the judgment of March 15, 1979. Civ.R. 60(B) may not be used as a substitute for a timely appeal or to accommodate a party by extending the normal period for appeal. Bosco v. Euclid (1974), 38 Ohio App.2d 40, 311 N.E.2d 870; McCue v. Insurance Co. (1979), 61 Ohio App.2d 101, 399 N.E.2d 127. However, a judgment may be vacated for a valid reason demonstrated on the record that falls within the guidelines of Civ.R. 60(B), even if the effect is to extend appeal time. The trial judge vacated the judgment of March 15, 1979, because he had orally promised the moving attorney to grant an oral hearing on the motion for new trial prior to ruling thereon. Moreover, notice was not given to defendant of the ruling of March 15, 1979, due to an oversight by the court. While there is no requirement under the Ohio Rules of Civil Procedure to give a party actual notice of the filing of a judgment entry, Town & Country Drive-In Shopping Centers, Inc., v. Abraham (1975), 46 Ohio App.2d 262, 348 N.E.2d 741, the failure of the court to give notice of a judgment is a basis for finding that the motion for relief from judgment pursuant to Civ.R. 60(B) was timely. There was also a valid reason for vacating the premature judgment overruling the motion for a new trial. The trial judge acknowledged that he had orally promised defendant an oral hearing prior to ruling on the motion. While oral promises made by the court to a party not put on the record should be avoided, neither should a breach of a relied upon promise be permitted to deny the party its appeal. Schwartz v. Leiser (Ct.App.1957), 76 Ohio Law Abs. 222, 140 N.E.2d 1.
The judgment was vacated to rectify the breach of an oral promise by the trial court relied upon by defendant, rather than as a subterfuge to accommodate defendant as a means to circumvent the jurisdictional time for filing a notice of appeal. The record indicates that the trial court conducted an oral hearing in good faith prior to reentering judgment overruling the motion for new trial.
Appellant's first proposition of law is overruled.
Appellant next asserts that the Court of Appeals erred when it granted a new trial to defendant on the grounds that the trial court failed to instruct the jury concerning contributory negligence.
Contributory negligence was pleaded as a defense and an instruction upon contributory negligence was requested of and denied by the trial court. If there was sufficient evidence to find contributory negligence, a charge on the issue should have been given to the jury for its consideration. On the other hand, the court should not charge the jury on an issue, even though pleaded, if not supported by the evidence. O'Day v. Webb (1972), 29 Ohio St.2d 215, 280 N.E.2d 896.
Testimony concerning liability was brief. The accident occurred at an intersection controlled by a traffic light. Plaintiff testified that she entered the intersection on a green light and was struck by defendant's vehicle. Defendant testified that she entered the intersection under a yellow light, which had probably turned red before the collision. (Although plaintiff and the police officer investigating the accident both testified that defendant stated at the scene of the accident that she had run the red light, defendant stated that they were mistaken and that she had meant that the light was probably red at the time of the collision.) For the purposes of the application of a charge on contributory negligence, it must be assumed that the jury could believe defendant's testimony that she entered the intersection on a yellow light.
There was no testimony of any failure on the part of defendant to exercise caution after entering the intersection on the yellow light. Defendant stated that she was travelling 35 miles per hour, the speed limit at the location where the accident occurred, and that the light turned yellow immediately prior to entering the intersection.
The trial court, in substance, charged the jury that defendant was negligent if defendant entered the intersection on a red light and that plaintiff was negligent, although entering the intersection on a green light, if she failed to yield the right-of-way to any vehicle already lawfully within the intersection at the time that the green light was first exhibited to her. There was no objection concerning these charges. Defendant's request for a contributory negligence charge was founded on the proposition that a jury might reasonably...
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