Opinion
No. 81-271
Decided February 19, 1982.
Negligence — Arbitrators' award — Appeal de novo — Motion to dismiss appeal overruled — Appeal therefrom — Final appealable order, when — Granting of Civ. R. 60(B) motion not supported by record.
APPEAL from the Court of Appeals for Cuyahoga County.
On June 17, 1977, Clark Lamar, plaintiff-appellee herein, filed a complaint in the Court of Common Pleas of Cuyahoga County seeking to recover damages from Clinton Marbury, defendant-appellant herein, for injuries allegedly suffered when appellee was struck by a motor vehicle being operated by appellant. On October 5, 1978, the suit was referred to arbitration pursuant to Local Rule 29 of the Court of Common Pleas applicable to the General Division.
Local Rule 29 is a detailed rule providing for mandatory arbitration in certain cases and regulating the same. Provisions of the rule as pertinent here are the following:
The report and award of the arbitrators was filed on January 16, 1979, awarding appellee the sum of $10,000 and costs. No appeal having been filed within 30 days from the arbitrators' award, the court on February 21, 1979, entered judgment in favor of appellee for $10,000 and costs.
On February 22, 1979, appellant filed a "Notice of Appeal De Novo," the notice bearing a marginal notation over the signature of the trial judge and reciting, "2/22/79 Appeal Approved." On February 26, 1979, the court signed an entry reciting, "Arbitration appeal de novo as of 2-22-79"; the entry, however, not being journalized by the court.
On August 30, 1979, the trial court, apparently sua sponte, erroneously filed for journalization an entry reciting the case had been settled and dismissed at defendant's cost. On January 23, 1980, an entry was filed vacating the dismissal entry of August 30, 1979, and further ordering, "Case returned to trial list."
On February 14, 1980, appellee filed a motion seeking an order dismissing appellant's late filed notice of appeal de novo and to correct the record. Appellee sought the entry of an order nunc pro tunc ratifying the judgment of February 21, 1979, or the entry of a new judgment. On March 6, 1980, the motion was overruled and an appeal was timely prosecuted to the Court of Appeals.
The Court of Appeals reversed, essentially, upon the grounds that appellant's notice of appeal de novo was not timely filed, that the judgment of February 21, 1979 was properly entered and that appellant having failed to file a motion for relief after judgment pursuant to Civ. R. 60(B), the judgment continued in effect and the trial court should have granted the motion to correct the record.
With respect to the appealability of the March 6, 1980 order, the Court of Appeals stated in a footnote the following:
"To accept appellant's [plaintiff's] nomenclature of his motion, which would make the overruling of the motion technically a non-appealable order, would in effect elevate form over substance and require the trial court to do a vain act, i.e., try the case on its merits. The trial court's judgment, on appeal, would then be vacated since the trial court lacked jurisdiction after entering final judgment on the arbitrator's award.
"Therefore, appellant's [plaintiff's] motion to correct the record and to ratify the trial court's entry of February 21, 1979, is herein treated as a motion to vacate a void judgment. The instant appeal has been therefore timely taken from a final order of the court below."
On December 9, 1980, appellant filed in the Court of Appeals a motion for reconsideration and attached thereto an affidavit of counsel which, after averring that he had attempted to file an appeal on February 15, 1979, but it had been refused by a secretary of the arbitration commission, recited:
"That the first available date to present these facts to the Trial Court was on or about February 22, 1979 and the Court upon hearing the above facts allowed the delayed appeal;
"That a pre-trial was scheduled and trial date to be set * * *;
"That at no time has the defendant * * * had an opportunity to present his case as he was unable to attend the Arbitration hearing because the scheduled Courtroom was changed and he was unable to locate the proper jury room;"
The motion was subsequently overruled.
This cause is now before this court pursuant to the allowance of a motion to certify the record.
Appellee, on September 28, 1981, filed in this court a motion to dismiss the appeal for the reason that copies of the record were not timely filed by appellant pursuant to Section 2, Rule IV, Rules of Practice. Upon consideration, and in light of our disposition of the merits of the appeal, the motion is overruled.
" Part VI(A) "Any party may appeal from the action of the Board of Arbitration to the Common Pleas Court of Cuyahoga County. * * * The right of appeal shall be subject to the following conditions, all of which shall be complied with within thirty (30) days after the entry of the award of the Board. * * *"
" Part VI(B) "All cases which have been duly appealed shall be tried de novo."
Mr. Sanford I. Atkin, for appellant.
Mr. Nicholas A. Bucur, Mr. Richard J. Kaplow and Mr. Zygmunt G. Slominski, for appellee.
The brief of appellant fails to set forth a proposition of law as required by Section 1(D), Rule V of the Rules of Practice of the Supreme Court, but does contain an "assignment of error" to which we confine our review. The assignment of error reads as follows: "The Court of Appeals erred in finding that the trial court's ruling allowing the appeal and trial de novo pursuant to an oral motion under Civil Rule 60 B is an appealable order."
In support, appellant argues a reversal of the judgment of the Court of Appeals essentially upon the basis that it must be assumed from the record that an oral motion for relief from judgment pursuant to Civ. R. 60(B) was made to the trial court on February 22, 1979 and granted, and the case was thereafter pending for trial, and that both the subsequent trial court order of January 23, 1980, placing the case on the trial list and the order of March 6, 1980, overruling the motion to correct the record, were interlocutory in character and not final orders as defined in R.C. 2505.02. We disagree.
No procedure is provided in the Civil Rules for the securing of relief from a judgment under Civ. R. 60(B) by means of an oral motion. Civ. R. 60(B) provides, inter alia, "[t]he procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules." Civ. R. 7(B)(1) provides, inter alia, "[a]n application to the court for an order shall be my motion which, unless made during a hearing or trial, shall be made in writing." (Emphasis added.) Civ. R. 5(A) mandates service of the motion and Civ. R. 6(D) requires the service to be no later than seven days before the hearing date. Although we conclude herein the trial court did not grant relief from the judgment based upon an oral motion, it is self-evident that the grant of such an oral motion would probably be erroneous.
It is apparent from appellant's formulation of his assignment of error that he has misinterpreted the rationale of the Court of Appeals in holding the order of March 6, 1980 to be a final appealable order. See fn. 2. The Court of Appeals concluded no relief from judgment had been granted by the trial court pursuant to Civ. R. 60(B), no such motion for such relief having been filed by appellant. The record irrefutably supports such conclusion. If appellant is relying upon the affidavit attached to the motion for reconsideration filed in the Court of Appeals to inferentially support the making orally of a Civ. R. 60(B) motion, such reliance is misplaced.
Upon review the Court of Appeals was confined, pursuant to App. R. 12(A), to the record before it as defined in App. R. 9(A). The affidavit is not within such definition and may not be utilized to bring factual matters and proceedings before the appellate court not otherwise appearing in the record. Likewise, appellant cannot rely on the unjournalized order of February 26, 1979 as a sub silentio grant of Civ. R. 60(B) relief from judgment since, pursuant to Civ. R. 58, a judgment is effective only when filed with the clerk for journalization. Such entry was for that reason expressly disregarded by the Court of Appeals.
Accordingly, appellant's claim of error is overruled and the judgment of the Court of Appeals affirmed.
Inasmuch as appellant has not briefed or argued any issue with respect to the appealability of the March 6, 1980 order absent a valid grant of relief from judgment, we do not reach or consider the issue of whether the Court of Appeals properly concluded that the order of March 6, 1980 was a final order as being based on a motion to vacate a void judgment.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and STEPHENSON, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for KRUPANSKY, J.