Wells v. Spirit Fabricating, Ltd.

• Decision Date: 05 August 1996
• Docket Number: No. 69755,69755
• Citation: 680 N.E.2d 1046,113 Ohio App.3d 282
• Parties: WELLS, Appellee and Cross-Appellant, et al., v. SPIRIT FABRICATING, LTD., Appellant and Cross-Appellee. *
• Court: Ohio Court of Appeals

Page 282

113 Ohio App.3d 282

680 N.E.2d 1046

WELLS, Appellee and Cross-Appellant, et al., v. SPIRIT FABRICATING, LTD., Appellant and Cross-Appellee. ^*

No. 69755.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided Aug. 5, 1996.

Carlin & Carlin, William A. Carlin, Paul E. Carpenter, Pepper Pike, for appellee and cross-appellant.

Reminger & Reminger Co., L.P.A., William P. Farrall and Clifford C. Masch, Cleveland, for appellant and cross-appellee.

PORTER, Judge.

Defendant-appellant/cross-appellee Spirit Fabricating, Ltd. appeals from a jury verdict and judgment finding it liable for plaintiff-appellee/cross-appellant Christine Wells's injuries resulting from a rear-end collision in which defendant's employee failed to maintain the assured clear distance. Defendant claims that the trial court erred because, under the doctrine of respondeat superior, the plaintiff's prior release of the employee released the employer, because the employee was not in the scope of his employment at the time of the accident, and because the trial court erred in instructing the jury on agency. The cross-appellant contends that the trial court erred in granting the employer relief from judgment under Civ.R. 60(B) when it failed to satisfy the requirements of the rule and that relief was granted solely for the purpose of preserving an otherwise untimely appeal. We find merit to the appeal and reverse for the reasons hereinafter stated. The cross-appeal is denied.

This case involved injuries sustained by plaintiff when defendant's employee, Robert M. Puleo, negligently rear-ended her vehicle on June 7, 1988. Puleo had injured his hand at work that day. When the collision occurred, he was on his way to the hospital to seek treatment. Initially, plaintiff filed suit solely against Puleo. Plaintiff then filed an amended complaint adding defendant Spirit as a party, asserting a claim under the doctrine of respondeat superior. Plaintiff alleged that, at the time of the accident, Puleo was an employee of defendant and was acting within the scope of his employment. Thereafter, plaintiff entered into a settlement with Puleo and signed a release agreement.

On September 28, 1990, defendant filed its motion for summary judgment arguing that the settlement and release of Puleo necessarily released defendant. Defendant also argued that, as a matter of law, Puleo's negligent acts did not occur within the scope of his employment. On November 14, 1990, plaintiffs filed their motion in opposition to defendant's summary judgment motion and filed their own cross-motion for summary judgment. On December 18, 1990, the trial court overruled both motions.

On May 7, 1991, the case went to jury trial solely on the issue of whether Puleo was acting within the scope of his employment at the time of the accident. The jury determined by answer to interrogatory that he was. On May 9, 1991, the trial court reconfirmed its earlier decision and again overruled defendant's motion for summary judgment, stating that the "release of an employee does not, as a matter of law, release the employer from liability. See the Uniform Contribution Among Tortfeasors Act, ORC 2307.32(F)."

Trial was then scheduled to determine the extent of plaintiff's damages. Prior to trial, a stipulated amount of damages was agreed upon by the parties and journalized by the court on August 30, 1994. On September 23, 1994, defendant filed a notice of appeal to this court.

On September 7, 1995, this court, in a two-to-one decision, issued its written opinion and determined that defendant could not appeal regarding the issues that the release and scope of employment protected defendant from liability as it had agreed to the terms of the judgment via a stipulated damages entry. Wells v. Spirit Fabricating, Ltd. (Sept. 7, 1995), Cuyahoga App. No. 67940, unreported, 1995 WL 527541. While this court ruled that the agreed judgment entry was not subject to appeal, it noted that the proper procedural remedy to clarify the August 30, 1994 judgment entry to preserve issues for appeal as agreed was to file a motion for relief from judgment. Specifically this court stated:

"It should be noted, contrary to defendant's argument, that the additional documents would not change the result of this appeal. Trial courts speak only through journal entries, such as the trial court's August 30, 1994 and March 20, 1995, agreed judgment entries in this case. During the pendency of this appeal, however, the trial court lacked jurisdiction to journalize its subsequent May 23, 1995 entry. At this point, the proper procedure to clarify an entry is to file a motion for relief from the prior agreed judgment entries." Id. at 6.

On September 19, 1995, defendant filed a motion for relief from judgment under Civ.R. 60(B) with the trial court. On October 26, 1995, over plaintiff's opposition, the trial court granted the motion and stated as follows:

"Motion for Relief from Judgment granted. Per the stipulation of the parties the court finds damages in the amount of $250,000. The court preserves the right of the Defendant to appeal the jury's findings on the issues of agency and release."

On October 27, 1995, defendant filed its notice of appeal with this court. The plaintiff timely filed a cross-appeal challenging the trial court's actions in granting relief from judgment because of defendant's failure to satisfy Civ.R. 60(B) and an abuse of discretion in otherwise preserving an untimely appeal.

We will address plaintiff's cross-assignments of error first, as they concern jurisdictional issues.

CROSS-APPEAL

Plaintiff/cross-appellant designates the following two assignments of error:

"I. The trial court erred to the prejudice of Wells and abused its discretion when it granted Spirit's motion for relief from judgment where movant failed to satisfy the requirements contained in Civil Rule 60(B).

"II. The trial court erred to the prejudice of Wells and abused its discretion when it granted Spirit's motion for relief from judgment solely for the purpose to preserve an otherwise untimely appeal."

We will address these cross-assignments of error together for ease of discussion because they are closely related.

The issue on appeal from a ruling on a Civ.R. 60(B) motion for relief from judgment is whether the trial court abused its discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174, 637 N.E.2d 914, 915-916; Trebmal Constr. v. Cuyahoga Cty. Bd. of Revision (1994), 94 Ohio App.3d 246, 255, 640 N.E.2d 601, 607. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142. Civ.R. 60(B) is a remedial rule that is to be liberally construed with a view for effecting a just result. State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections (1993), 67 Ohio St.3d 134, 136, 616 N.E.2d 869, 871.

The requirements necessary for a motion seeking relief from judgment have been set forth in paragraph two of the syllabus of GTE Automatic Elec Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113:

"To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds for relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken."

In regard to the first element, we find no merit to plaintiff's claim that Spirit failed to present sufficient evidence showing it had a meritorious defense to present. Spirit contends that a hearing on its motion for relief from judgment was held in the court's chambers on October 26, 1995. This court in Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App.2d 223, 228-229, 10 O.O.3d 227, 230-231, 382 N.E.2d 1179, 1184, held that once the trial court grants a hearing on a motion for relief from judgment, "any appeal taken from the court's action thereon is not decided upon the material submitted with the motion but upon whether the evidence introduced at the hearing satisfies the three requirements of GTE."

Plaintiff contends that only an in-chambers conference was held on this date and that there was no opportunity to present evidence. The appellant bears the burden of providing a transcript when it is necessary to the disposition of any question on appeal. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 19, 520 N.E.2d 564, 565-566. In the instant case, no transcript of the in-chambers hearing was available. The court in Steiner v. Steiner (1993), 85 Ohio App.3d 513, 620 N.E.2d 152, was confronted with a similar situation where the parties disputed whether a hearing or conference was conducted by the trial court. The court held that if no transcript is available, appellant must invoke the procedures of App.R. 9(C) or 9(E) to reconstruct what occurred at the proceeding and that, not having done so, appellant waived any error. Id. at 524, 620 N.E.2d at 159-160. See, also, Kelm v. Kelm (1992), 73 Ohio App.3d 395, 400, 597 N.E.2d 535, 537-538 ("[A]bsence of a court reporter does not preclude there having been a hearing. * * * [D]efendant could have supplied a statement in lieu of a transcript to indicate that which did transpire on that date * * * pursuant to App.R. 9[C]"); Palmer v. Kaiser Found. Health (1991), 64 Ohio App.3d 140, 142, 580 N.E.2d 849, 850-851 (hearing was held in chambers but not recorded; no App.R. 9[C] statement was presented; the court held that informal hearing is not improper when the evidentiary witnesses are the lawyers). "In the absence of all the relevant evidence...