Vavrina v. Greczanik

• Decision Date: 13 June 1974
• Citation: 40 Ohio App.2d 129,318 N.E.2d 408,69 O.O.2d 146
• Parties: , 69 O.O.2d 146 VAVRINA, Appellants, v. GRECZANIK, Appellee (two cases).
• Court: Ohio Court of Appeals

Page 129

40 Ohio App.2d 129

318 N.E.2d 408, 69 O.O.2d 146

VAVRINA, Appellants, v. GRECZANIK, Appellee (two cases).

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

June 13, 1974.

Syllabus by the Court

A trial court does not have jurisdiction or authority to act on a motion for relief from judgment (Civil Rule 60(B)) during the pendency of an appeal.

John J. McCarthy, Cleveland, for appellants.

Richard F. Stevens, Cleveland, for appellee.

KRENZLER, Judge.

On August 27, 1970, two cases were filed in the Common Pleas Court of Cuyahoga County, one by Charles Vavrina, Sr. (Case No. 886,338, Appeal No. 32746), and the other by Charles Vavrina, Jr. (Case No. 886.335, Appeal No. 32747). The two cases will be considered together. ¹

Plaintiffs allege that Charles Vavrina, Sr. was driving his car, with Charles Vavrina, Jr., as a passenger, in a northerly direction on W. 130th Street when Vavrina, Sr. arrived at the entrance driveway of the Southland Shopping Center. He brought his automobile to a stop in compliance with a red traffic light for north-bound-southbound traffic on W. 130th Street. Thereafter, he executed a left turn for the purpose of gaining entrance to the driveway to the shopping center and as he was executing this turn, defendant came from behind a bus that was situated in the passing lane of the roadway, passed the bus and entered what is known as the curb lane and proceeded south at a speed that was greater than reasonable and proper and struck the automobile the plaintiff was operating, which caused a violent collision and injuries to the plaintiffs. Plaintiffs allege that as a direct and proximate result of the defendant's negligence they sustained injury and damage in the amount of $20,000 and $17,500 respectively.

The defendant filed an answer on October 20, 1970 admitting that the accident occurred on W. 130th Street on the date alleged in the complaint between an automobile operated by the plaintiff and an automobile operated by the defendant, and further admitted that the plaintiff executed a left turn for the purpose of entering the driveway but denied the remaining allegations. Defendant alleged an affirmative defense that if he were found negligent, the plaintiff was guilty of contributory negligence which directly and proximately contributed to the injuries and damages.

On May 10, 1972 the defendant filed a motion for summary judgment alleging that there was no material issue of fact and that he was entitled to judgment as a matter of law. Attached to the motion was the defendant's affidavit, the depositions of both plaintiffs and a memorandum in support of the motion.

Plaintiffs did not file any affidavits, depositions, interrogatories, or other documents other than a brief in opposition to the motion for summary judgment.

The defendant filed a reply brief on June 12, 1972.

On June 15, 1972 after the motion for summary judgment was filed the plaintiffs filed interrogatories to be answered by the defendant.

The trial court granted the defendant's motion for summary judgment on August 7, 1972 and concluded that there was no genuine issue of fact to be submitted to the court and that the defendant was entitled to judgment as a matter of law.

Plaintiffs then filed a motion on August 10, 1972 to order the defendant to answer the plaintiff's interrogatories, together with a motion to reconsider and set aside the summary judgment.

Plaintiffs filed a notice of appeal on August 25, 1972.

On September 8, the trial court entered orders granting the plaintiffs' motions to reconsider and to compel answers to interrogatories and to take the deposition of the defendant. The trial court also vacated the summary judgment entered on August 7, 1972 and ordered the case reinstated.

On September 13, 1972 the plaintiffs dismissed their appeal.

On November 13, 1972 the defendant filed his answers to the plaintiffs' interrogatories.

On May 9, 1973 the trial court again entered summary judgment for the defendant and a notice of appeal was taken by the plaintiffs on May 16, 1973 and a cross appeal was filed by the defendants.

The plaintiffs appellants' assignment of error is that there exists a genuine issue as to a material fact since a jury must determine if defendant was operating his automobile in a lawful manner and therefore defendant was not entitled to a judgment as a matter of law.

Defendant appellee's assignment of error is that the trial court was without jurisdiction on September 8, 1972 to vacate and set aside its prior granting of a summary judgment to the defendant appellee on August 7, 1972 or to grant plaintiffs' motion to reconsider or rule on plaintiffs appellants' other motions on that date.

We will first consider defendant appellee's assignment of error because it deals with the trial court's authority to vacate and set aside a summary judgment and make other orders during the pendency of an appeal.

Only timely motions for a new trial or judgment n. o. v. under Civil Rules 59 and 50 respectively toll the time for entering final judgment and filing a notice of appeal. Filing other motions, such as for reconsideration ² or relief from judgment under Civil Rule 60(B) do not extend the time for entering judgment or filing a notice of appeal after final judgment is entered. ² The question of whether a trial court has jurisdiction to take action in a case after an appeal has been taken has been decided many times with the general rule being that the trial court loses jurisdiction. ³ However, some courts have held that the trial court retains jurisdiction over issues that are not before the court of appeals, such as collateral issues like contempt. ⁴

The Common Pleas Court did not have authority to act on September 8, 1972 when it vacated its August 7, 1972 judgment. When the notice of appeal was filed on August 25, 1972, jurisdiction of this case was vested in the Court of Appeals and any action taken by the trial court in vacating its earlier judgment during the appeal period was null and void and of no consequence because the issue on appeal was the validity of the judgment vacated by the trial court.

If after entering a final judgment, a timely notice of appeal is filed the trial court does not have authority to act on a motion to reconsider its action or to grant relief from judgment under Civil Rule 60(B) during the pendency of the appeal. Whether a trial court has authority to give relief from judgment under Civil Rule 60(B) after an appeal is terminated is not an issue in this case and will not be considered. This case only involves the trial court's jurisdiction to grant relief under Civil Rule 60(B) during the pendency of an appeal.

On September 8, 1972 the trial court did not have jurisdiction to grant plaintiffs' motions to reconsider, to compel answers to interrogatories, to take depositions, and to vacate its August 7, 1972 judgment.

Therefore, the action taken by the trial court on May 9, 1973 in again granting the motion for summary judgment was a nullity because the only valid entry in this case was journalized on August 7, 1972, and any appeal would necessarily have to have been taken from that judgment. The appellants did file a timely notice of appeal on August 25, 1972 but subsequently dismissed their appeal on September 13, 1972. The second appeal filed on May 16, 1973 is not timely filed because it comes more than 30 days after the entry of judgment. (Appellate Rule 4.) The defendant appellee's assignment of error is well taken and the appeal is dismissed. However, Appellate Rule 12(A) requires that we address ourselves to every assignment of error and we will consider plaintiffs-appellants' assignment of error.

Plaintiffs contend that the issue of defendant's speed can only be decided by a jury as to whether it was reasonable at the time the accident took place, and that a trial court cannot say as a matter of law that the defendant's speed was reasonable.

This contention as a proposition of law is not correct.

Civil Rule 56 provides that if there is no material issue of fact and a party is entitled to judgment as a matter of law, a motion for summary judgment may be granted.

We must thus review the facts and determine if there is a material issue of fact regarding the defendant's speed and whether it was reasonable and proper at the time the accident took place.

Plaintiffs contend that the depositions and the other material submitted including evidence of the extensive damage to the cars, raises a jury question as to whether the defendant was travelling at a reasonable rate of speed.

The defendant contends that the evidence is undisputed, that he had the right of way, was driving in a lawful manner, and there is not a material issue of fact and that he is entitled to judgment as a matter of law.

At the time the trial court ruled on the motion for summary judgment on May 9, 1973, it had before it the depositions of both plaintiffs, the affidavit of the defendant, and defendant's answers to the plaintiffs' interrogatories.

After carefully reviewing the foregoing material, it is undisputed that the accident between the plaintiffs and the defendant took place at approximately 5:35 to 5:45 p. m. on January 10, 1970, at W. 130th Street, a north-south thoroughfare, having four lanes, two in each direction. The accident took place at W. 130th Street and the entrance to the Southland Shopping Center where there is a traffic signal, which does not have arrows for left hand turns. At the time of the accident the traffic signal was green for north-south traffic. Plaintiff was travelling north in the passing lane and had stopped for a red light. When the light turned green, plaintiff made a left turn to go into the shopping center travelling at a slow rate of spped. When he was in the curb lane for southbound traffic, he was struck by the defendant's car, which was also in the curb lane travelling south at a speed of 20-25 miles...