Brush v. Hassertt, 21687 (5-18-2007)Brush v. Hassertt, 21687 (5-18-2007)
Lead Opinion
{¶ 2} Brush advances two assignments of error on appeal. First, she contends the trial court erred by overruling her motion for prejudgment interest. Second, she claims the trial court erred in sustaining the Hassertts' motion for an order granting relief under
{¶ 3} The record reflects that the Hassertts have an easement to use part of a driveway located on the Brushes' property. In September 2003, the Brushes informed the Hassertts that the driveway needed repaired. The Brushes then hired Booher Blacktop to do the work. On or about July 13, 2004, the Brushes paid Booher Blacktop $6,995 for work performed on the shared portion of the driveway. Pursuant to an alleged agreement between the parties, the Brushes then attempted to collect one half of that amount from the Hassertts. The Hassertts refused to pay, however, asserting that Booher Blacktop had not performed all work required by its contract with the Brushes and that Booher's work was defective.
{¶ 4} As a result of the dispute, the Brushes filed a small-claims complaint against the Hassertts on February 2, 2005. The Hassertts subsequently had the action transferred to the civil division of the Kettering Municipal Court, where they impleaded Booher Blacktop as a third-party defendant for purposes of potential indemnification and contribution. Thereafter, the Brushes filed an amended complaint in which they requested payment from the Hassertts and prejudgment interest from July 2004, which was when the Brushes had paid Booher. *3
{¶ 5} The matter proceeded to trial in October and December 2005. Based on the evidence presented, a magistrate filed a March 16, 2006 decision finding that the driveway repairs were necessary, that Booher Blacktop had performed adequately, that the Hassertts owed the Brushes $3,497.50 for their share of the cost, and that the Hassertts had no viable indemnification or contribution claim against Booher. The magistrate's decision did not address prejudgment interest.
{¶ 6} Thereafter, the Hassertts filed timely objections to the magistrate's decision regarding the indemnification and contribution issue. Within the time for filing objections, the Brushes also filed a March 30, 2006 motion pointing out the magistrate's failure to address the issue of prejudgment interest and again requesting interest from July 13, 2004.1 The trial court overruled the Hassertts' objections and denied the Brushes' motion in an April 5, 2006 decision and final judgment entry. In relevant part, the trial court stated:
{¶ 7} "* * * [T]he Court adopts the Magistrate's Decision and grants judgment to Plaintiffs, Joy Brush, et al., and against Defendants, Norman Hassertt, et al., in the amount of $3,497.50, with interest atthe rate of 05% from February 02, 2005 and costs. Plaintiffs' Requestfor Prejudgment Interest, filed March 30, 2006, is overruled." (Emphasis added).
{¶ 8} The Brushes did not appeal or cross appeal from the trial court's April 5, 2006 decision and final judgment entry. The Hassertts, however, did file a timely appeal. *4
While their appeal was pending, they sought leave in this court to request
{¶ 9} Although Joy Brush has appealed from the trial court's June 2, 2006 nunc pro tunc entry granting the Hassertts
{¶ 10} Because the Brushes did not appeal or cross appeal from the trial court's *5
April 5, 2006 decision and final judgment entry,3 we must determine, as a threshold matter, whether Joy Brush's appeal from the subsequent
{¶ 11} In the present case, the trial court's
{¶ 12} An issue remains, however, concerning what she may raise on appeal. When a trial court alters or corrects a final judgment, such modification does not automatically reopen for appellate review all issues resolved in the original judgment. *6
The United States Sixth Circuit Court of Appeals addressed this question in some detail in Cuyahoga Valley Ry. Co. v. Tracy (C.A. 6, 1993),
{¶ 13} "Ohio contends that it has not waived the right to appeal this issue, even though (1) the court made its order regarding the advance payments in August 1991 and (2) the state has filed a timely appeal only from the April 1992 order, which made no mention of the interest payments. Its argument, essentially, is that since the April order modified certain aspects of the August order, every item in the August order is now properly subject to appeal.
{¶ 14} "* * *
{¶ 15} "In support of its argument, Ohio quotes Federal TradeCommission v. Minneapolis-Honeywell Regulator Co.,
{¶ 16} "`Only when the lower court changes matters of substance . . . should the period within which an appeal must be taken . . . begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has distributed or *7 revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.'
{¶ 17} "* * * Ohio suggests that this language means that in all cases in which a second order substantively changes a first order, the time for appeal should begin to run anew as to all aspects of that first order.
{¶ 18} "The state of Ohio may very well be correct that the April order presents a substantive modification to the August order, and also in its assertion that the period for appeal should be deemed to run anew. But its accuracy on this score, vel non, is immaterial, because the order to repay the advance payments plus prejudgment interest was not altered one whit by the second order[.] * * * The relevant case law in no way suggests that once one issue has been modified, all of the issues from the original order are fair game for appeal. Instead, it is quite clear that by failing to appeal from the August order, the state waived its right to argue the issue of the interest payments, and accepted the August order as final. * * * The court's later modification of the August order, which was wholly independent of the issue the state is disputing, should not alter the state of repose." Id. at 394-395.
{¶ 19} The Sixth Circuit's analysis in Tracy is consistent with other federal and state jurisprudence. See, e.g., Buggs v. Elgin, Joliet Eastern Ry. Co. (C.A. 7, 1988),
{¶ 20} Having reviewed the foregoing authorities, we discern no reason why the Tracy court's analysis should not be equally applicable to the trial court's alteration of its April 5, 2006, final judgment entry under
{¶ 21} Based on the reasoning and authority set forth above, we conclude that Joy Brush's appeal from the trial court's
{¶ 22} In her second assignment of error, Brush claims the trial court erred in sustaining the Hassertts'
{¶ 23} Upon review, we find the foregoing argument to be without merit. As Brush properly notes,
{¶ 24} Although we disagree with the Hassertts' reasoning, we nevertheless reject Joy Brush's argument that the trial court erred in sustaining the
{¶ 25} Because a trial court is in the best position to know what it actually meant, we give considerable deference to its ruling on a
{¶ 26} "The basic distinction between clerical mistakes that can be corrected under
{¶ 27} In the present case, the trial court certainly was best situated to know whether its initial award of interest from February 2, 2005, as opposed to April 5, 2006, was a deliberate choice or whether it resulted from a clerical mistake or oversight. Because its reference to the February 2, 2005 date very well may have been a clerical mistake or oversight, we cannot say the trial court abused is discretion or exceeded its authority under
{¶ 28} In reaching the foregoing conclusion, we reject the appellant's argument that the trial court's date change constituted an impermissible "substantive" modification because it resulted in the loss of more than a year's worth of interest. The modification of a judgment under
{¶ 29} Based on the reasoning set forth above, we believe the trial court acted within its discretion under
Judgment affirmed.
Notes
Concurrence Opinion
{¶ 30} Although I concur in the judgment of affirmance, I do not agree that the Brushes have appealed too late to raise the issue of pre-judgment interest.
{¶ 31} Although a ruling by a trial court may furnish the basis for an assignment of error, appeals are taken from final orders or judgments, not rulings.
{¶ 32} As to the issue raised in this appeal — the issue of pre-judgment interest-the original judgment no longer has independent significance, having been superseded by the modified judgment. Therefore, in my view, the Brushes' appeal from the modified judgment was timely. They are permitted to assign as error any rulings that have adversely affected the judgment, thereby prejudicing them, regardless of when those pre-judgment rulings were made. To hold otherwise would lead to absurd results. Let us suppose that in a typical automobile accident case, the trial court clearly intended to resolve the disputed issues in favor of the plaintiff, and award judgment in some amount, but as a result of a clerical error, the actual judgment filed in the case is for the defendant. The defendant would have no standing to appeal from the judgment, since it is the defendant's favor. But it would be absurd to say that once the trial court has entered an amended judgment, under
{¶ 33} To me it is clear that the Brushes' appeal is timely from the
{¶ 34} Nevertheless, the alleged contractual undertaking of the Hassertts upon which the Brushes base their claim was not in a liquidated, or readily calculable, amount. It was an undertaking to pay one-half of the costs of maintaining the driveway, *15 not to pay one-half of whatever a contractor chose to bill for work alleged to have been reasonable and workmanlike maintenance of the driveway. I conclude that the trial court could reasonably have found that the amount necessary to fully compensate the Brushes was not determinable until the trial of the general issue, in which it became possible to determine whether, and to what extent, the contractual obligation of the Brushes to the contractor was reasonably necessary for the maintenance of the driveway.
{¶ 35} On the issue of whether the trial court properly granted relief under
Dissenting Opinion
{¶ 36}
{¶ 37} The original order, as modified, denied the Brushes' claim for prejudgment interest.
{¶ 38} Under their oral agreement, the amount of the debt the Hassertts owed the Brushes for repair of the driveway was not disputed, being an agreed portion of the cost of the repair the Brushes had paid. Only liability was in dispute, based on the Hassertts' contentions that the repairs were improperly performed. Having rejected that contention, the trial court erred when it failed to grant prejudgment interest to the Brushes from the date on which the Hassertts' debt became due and owing, July 13, 2004, the date on which the Brushes paid the contractor for its work and demanded payment of a specific sum of money from the Hassertts that the court subsequently ordered the Hassertts to pay.
{¶ 39} I would sustain the first assignment of error, and on that basis would
*1reverse and remand.