Consolidated Rail Corp. v. Forest Cartage Co. ( 1990 )

In this case the defendants filed a motion for summary judgment and a response to plaintiff's motion for summary judgment without serving the plaintiff. The Civil Rules require the obvious: that service shall be made on the opposing party. Not knowing there had been a failure of service, and thus no response, the court denied plaintiff's summary judgment motion and granted defendants' motion for summary judgment. When the court became aware of this fact through the plaintiff's attorney's affidavit (which has not even to this date been contested) the court did the right thing and vacated its judgment. This was not an accommodation entry as there was yet time for appeal. Cf. McCue v. Buckeye Union Ins. Co. (1979),61 Ohio App.2d 101, 15 O.O.3d 103, 399 N.E.2d 127. In fact, when plaintiff filed its motion for reconsideration, it is apparent from the substance of the motion and counsel's affidavit that plaintiff was responding to what it believed was an interlocutory order, i.e., a ruling which denied its summary judgment motion only. Under these circumstances, a motion for reconsideration is the proper procedural vehicle to challenge an interlocutory order. Pitts v. Dept. of Transportation (1981),67 Ohio St.2d 378, 379, 21 O.O.3d 238, 239, 423 N.E.2d 1105, 1106, at fn. 1. It is clear to me that plaintiff was not attempting to circumvent any rules of procedure or making any inept attempt to toll its time for appeal — plaintiff still had time to appeal. However, counsel lost all opportunity to institute a timelyappeal when the trial court construed plaintiff's motion as a Civ.R. 60(B) motion and vacated its judgment within plaintiff'sthirty-day appeal period. This is the action that makes this case distinguishable from those cases cited by the majority.

After the court vacated its judgment, each side vigorously litigated the case on the merits and the trial court decided the case on the merits. An appeal was taken to this court and both sides fully briefed the merits of the case. Shortly before oral argument in this court, after the matter had been pending for over a year, defendants filed a motion to dismiss the appeal as untimely filed. By granting this motion our court is denying theplaintiff a decision on the merits of this case when it wasdefendants who failed to serve the plaintiff. This result shocks the conscience. Moreover, as the majority itself states, once the trial court vacated its original entry of summary judgment, there was no order for either side to appeal. Yet by dismissing plaintiff's appeal now, our court is saying plaintiff should have appealed the order that was vacated.

No authority exists of which I am aware which prohibits a trial court from construing a motion for reconsideration as a Civ.R. 60(B) motion when, in substance, the reconsideration motion meets 60(B) requirements. Cf. William W. Bond, Jr. andAssoc. v. Airway Development Corp. (1978), 54 Ohio St.2d 363, 8 O.O.3d 384, 377 N.E.2d 988; Kauder v. Kauder (1974), 38 Ohio St.2d 265, 67 O.O.2d 333, 313 N.E.2d 797. In fact, this court has intimated the contrary. See Berk v. Kronenberg (Mar. 9, 1989), Cuyahoga App. No. 56171, unreported, 1989 WL 21379; Sakian v.Taylor (1984), 18 Ohio App.3d 62, 64, 18 OBR 175, 177,480 N.E.2d 822, 824; Stuart v. Stuart (Jan. 21, 1982), Cuyahoga App. No. 43515, unreported, 1982 WL 2308.

In Stuart, this court stated at page 3 that:

"The strong language of Pitts would indicate that a motion for reconsideration could not be treated by the trial court as any other motion, including a Civ.R. 60(B) motion. On the other hand, since a Civ.R. 60(B) motion, unlike a motion for new trial or motion for judgment notwithstanding the verdict, does not extend the time for filing a notice of appeal under App.R. 4(A), the considerations which apparently led the court to decide as it did in Pitts may not apply with the same force where a court treats a motion for reconsideration as a Civ.R. 60(B) motion.

"We need not decide that issue, however, because the motion for reconsideration filed in the instant case was clearly not a motion for relief from judgment. It did not contain the necessary prerequisites for a valid Civ.R. 60(B) motion. Plaintiff raised the identical grounds in this motion as in her prior objections to the referee's report. She submitted no supporting affidavits or other material with the motion and produced no evidence at the hearing on the motion which would suggest that matters not previously considered and determined by the court were being raised.

"The court had before it only that which was in substance as well as in form a motion for reconsideration."

Unlike the motion for reconsideration in Stuart, plaintiff's motion in substance easily could be construed as requesting vacation of the summary judgment, especially with the knowledge the trial court had at the time it considered plaintiff's motion. The court knew, based on counsel's uncontested allegations, that it rendered a judgment without plaintiff having been afforded the most basic due process. Plaintiff's motion did not argue the merits of the court's ruling against it, and did contain an affidavit with sworn allegations of the failure of service of a dispositive motion and opposition brief. In substance, Conrail's motion fulfilled the requirements of Civ.R. 60(B)(1) or (5), was timely, and sought the opportunity to present its claim. Even though plaintiff's motion carried a different label, the trial court recognized it for what it could have been in substance under the circumstances, stated so in its order, and granted Civ.R. 60(B) relief.³ Since no authority exists prohibiting the trial court's action, I see no error or abuse of discretion, especially on the facts of this case, with the court's attempt to do justice.

Because the trial court properly considered Conrail's motion as a Civ.R. 60(B) motion for relief from judgment, any order resulting therefrom would not be null and void. Thus, although a Civ.R. 60(B) motion will not toll the time for appeal, see App.R. 4(A); Civ.R. 60(B); Blasco v. Mislik (1982), 69 Ohio St.2d 684, 23 O.O.3d 551, 433 N.E.2d 612, when the trial court vacated its June 21, 1988, judgment, no final order was left from which Conrail could have appealed. If Conrail's motion had been denied, or if a ruling had not been made prior to the expiration of its appeal period, Conrail would have had a final order from which to appeal and would have had time left to appeal. By granting defendants' motion to dismiss plaintiff's appeal under these circumstances, Conrail is denied due process of law. See, generally, Gaeta v. Cleveland (1988), 39 Ohio St.3d 338, 530 N.E.2d 1316; Atkinson v. Grumman (1988), 37 Ohio St.3d 80, 523 N.E.2d 851.

Obviously it would have been better for plaintiff to have styled its motion otherwise. However, the trial court recognized the manifest injustice, vacated its order, and the parties, without objection, proceeded to address the merits of the controversy. By dismissing plaintiff's appeal, I am afraid this court is reinstating the manifest injustice and rewarding the parties who first violated the clear mandate of the Civil Rules that service shall be made on the opposing party. The majority's focus on the violation ofdefendants' rights and on all the errors claimed to have been made by the trial court is in my opinion grossly misdirected. This case should be decided on the merits and not dismissed.

Appendix "I. The trial court erred as a matter of law in finding that plaintiff-appellant was not a ``protected person' under the St. Paul liability policy, and erred in failing to find that coverage extended to plaintiff-appellants loss.

"II. The trial court erred as a matter of law in finding that the indemnity agreement was ambiguous, and in failing to enforce the indemnity agreement between appellant and the contractor-appellees."

³ Technically, I agree a trial court should give notice to the parties of its intention to sua sponte convert a motion into any dispositive motion. In this case I would find such omission harmless since Forest Cartage never contested Conrail's sworn allegation below, which was the basis of the court's ruling vacating its judgment, never objected to the court's action below or by way of appeal, and never alleged prejudice at any time below. In fact, Forest Cartage continued participating in the action below on its merits, even though it had no guarantee the court would rule in its favor again.