FIRST BANK OF MARIETTA, APPELLEE, v. MASCRETE, INC. ET AL.; ROSLOVIC & PARTNERS, INC., APPELLANT.
No. 96-907
SUPREME COURT OF OHIO
Submitted April 2, 1997—Decided October 1, 1997
79 Ohio St.3d 503 | 1997-Ohio-158
APPEAL from the Court of Appeals for Washington County, No. 95CA4.
- A contempt hearing may be considered a trial for purposes of a
Civ.R. 59 motion for a new trial. - A proceeding is considered a trial for purposes of
Civ.R. 59 when the indicia of trial substantially predominate in the proceeding.
{¶ 1} The underlying action in this case is a suit filed by appellee First Bank of Marietta (“First Bank“), against Mascrete, Inc. (“Mascrete“) and others in which First Bank obtained a judgment of $269,437. Appellant Roslovic & Partners, Inc. (“Roslovic“) is a general contractor located in Columbus from whom First Bank attempted to garnish funds in satisfaction of its judgment against Mascrete. Roslovic was not a party to the underlying action.
{¶ 2} Mascrete had сontracted to supply and install concrete for two Columbus Lowe‘s store construction projects for which Roslovic was the general contractor. Progress payments had been made by Roslovic to Mascrete on the project, but First Bank claimed that a substantiаl portion of the contract price remained unpaid at the time First Bank initiated the garnishment proceedings giving
{¶ 3} Upon receiving the trial court order of garnishment, Roslovic replied to the court thаt it did not have money, property, or credits under its control or in its possession belonging to Mascrete. First Bank then filed a motion to hold Roslovic in contempt pursuant to
{¶ 4} At the hearing, First Bank presented doсuments establishing that the total contract price to be paid by Roslovic to Mascrete for subcontract work on the Lowe‘s store projects was $826,000. Roslovic claimed that on the date it filed its response to the garnishment order, it had already paid Mascrete аll amounts owing under the two contracts. In fact, Roslovic claimed that it had inadvertently overpaid Mascrete, and that Roslovic was not holding any amounts owed to Mascrete.
{¶ 5} First Bank offered evidence of two $10,000 checks, each paid to Mascrete by Roslovic after Roslovic had received the notice of garnishment. No witness testimony was taken at the contempt hearing, and the court immediately announced its judgment based upon the documentary evidence and the arguments of counsel. The court held Roslovic in contempt аnd stated that it would enter judgment in favor of First Bank and against Roslovic in the amount of $20,000. The trial court entered its decision on December 5, 1994.
{¶ 7} The court of appeals affirmed the denial of the motion for a new trial but dismissed the appeal of the contempt judgment on the grounds that the appeal had nоt been timely filed. Having determined that a contempt hearing is not a trial, the court of appeals held that the motion for a new trial could not have tolled the period for appeal. Roslovic‘s notice of appeal was therefore untimely and the court was without jurisdiction to hear the appeal from the judgment of contempt.
{¶ 8} The matter is now before this court pursuant to the allowance of a discretionary appeal.
Emens, Kegler, Brown, Hill & Ritter and Gene W. Holliker, for appellee.
Porter, Wright, Morris & Arthur and Brian L. Buzby, for appellant.
MOYER, C.J.
{¶ 9} The question presented in this case is whether a contempt hearing that results in a money judgment can be considered a trial for purposes of a
{¶ 10}
{¶ 12}
{¶ 13}
“(A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds * * * .”
{¶ 14}
{¶ 15} In reaching its conclusion, the court of appeals relied on a concurrence in one of its own unreported cases, In re Trust of Hosler (Sept. 16, 1988), Pickaway App. No. 87 CA 37, unreported, 1988 WL 101217 (Stephenson, J., concurring), which cited Brown v. Coffman (1983), 13 Ohio App.3d 168, 169-170, 13 OBR 203, 204, 468 N.E.2d 790, 791. Hosler and Brown relied on the
{¶ 16} Though statutory definitions are not binding on the Ohio Rules of Civil Procedure, where the rules are silent, statutory definitions can serve as a helpful guide.
{¶ 18}
{¶ 19} The court of appeals relied on this language for the conclusion that issues cannot arise in the absenсe of pleadings. We do not agree.
{¶ 20} We conclude that the
{¶ 21} Furthermore, the restrictive definition used by the court of appeals in this case is inconsistent with the use of the word “trial” as it appears elsewhere in the Civil Rules.
{¶ 22}
“When issues not raised in the pleadings are tried by express or implied consent of the pаrties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any timе, even after judgment. Failure to amend as provided herein does not affect the result of the trial of these issues. * * *”
{¶ 23}
{¶ 24} Since the appellate court‘s limited definitions of “trial” and “issues” conflict with the use of those terms elsewhere in the Civil Rules, we must reject those definitions. We hold, therefore, that a contempt hearing may be considered a trial for purposes of a
{¶ 25} We further hold that the proper test for determination of whether a proceeding is a trial, subject to a
{¶ 26} A list of relevant indicia may include (1) whether the proceeding was initiated by pleadings, (2) whether it took place in court, (3) whether it was held in the presence of a judge or magistrate, (4) whether the parties or their counsel were present, (5) whether evidence was introduced, (6) whether arguments were presented in court by counsel, (7) whether issues of fact were decided by the judge or magistrate, (8) whether the issues decided were central or ancillary to the primary dispute between the parties, (9) whether a judgment was rendered on the evidence. The list of factors is not intended to be еxhaustive. Other indicia may be considered. The focus of the inquiry, however, is whether there is a substantial predominance of indicia of trial such that the proceeding is properly characterized as a trial for
{¶ 27} Applying the test to the proceeding before us, we cоnclude that the indicia of trial substantially predominated in Roslovic‘s contempt hearing. Indeed, the only indicium of trial not present in the contempt hearing is the initiation of the proceeding by pleadings. We do not agree with the court of appeals that its
{¶ 28} Other Ohio courts of appeals have reached the conclusion we reach today. In N. Royalton Edn. Assn. v. N. Royalton Bd. of Edn. (1974), 41 Ohio App.2d 209, 70 O.O.2d 434, 325 N.E.2d 901, the court held that a motion for reconsideration filed following the grant of a motion to dismiss a complaint could be treated as a motion for a new trial for purposes of the
{¶ 29} Similar reasoning has also been applied in cases predating the adoption of the Civil Rules. In O‘Connor v. Graff (1959), 111 Ohio App. 398, 14 O.O.2d 411, 160 N.E.2d 374, the court held that in a postdivorce decree hearing, a petition for a new trial was appropriate and acted to toll the running of time to appeal. That court observed, “We find no limitation upon the definition of a trial or a nеw trial. A trial is an examination and decision of any issue—fact or law—and a new trial is a re-examination of such an issue by the same court.” Id. at 400, 14 O.O.2d at 413, 160 N.E.2d at 376-377.
{¶ 30} In Haase v. Haase (1990), 64 Ohio App.3d 758, 582 N.E.2d 1107, the court stated: “‘In the proceeding below, the trial court took evidence and heard argument on the issues raised by the several pоst decree motions before it. We believe that the language of Civil Rule 59 is broad enough to authorize the seeking of a rehearing of such post decree motions. See Wright and Miller, Federal Practice and Procedure: Civil § 2804, at 35 (1973). Further, we find no language within Appellate Rule 4(A), which mandates, or even suggests, that Civil Rule 59 motions for new trial, made following judgments on post divorce decree motions, do not suspend the running of the time for the filing of a notice of appeal.‘” Id. at 762, 582 N.E.2d at 1109, quoting DePetro v. DePetro (Dec. 24, 1980), Cuyahoga App. No. 42300, unreported, at 3.
{¶ 32} The case law offered in support of its position by First Bank is not persuasive. In L.A. & D., Inc. v. Lake Cty. Bd. of Commrs. (1981), 67 Ohio St.2d 384, 21 O.O.3d 242, 423 N.E.2d 1109, we held that “a summary judgment proceeding is not a trial but rather is a hearing upon a motion.” Id. at 387, 21 O.O.3d at 243, 423 N.E.2d at 1111. A grant of summary judgment, however, is very different from the contempt hearing at issue in this case. Summary judgment involves resolution of a case exclusively on documents. There are, therefore, very few indicia of trial in a grant of summary judgment and it is properly treated differently as a consequence. First Bank has not directed our attention to any cases where courts have refused to permit a motion for a new trial or the benefit of tolling of the period for appeal on facts similar to those in the present case.
{¶ 33} As a result of our holding that the hearing in this case was a trial for purposes of
{¶ 34} Accordingly, the judgment is reversed, and the cause is remanded to the court of appeals for review on the merits of the trial court‘s finding of contempt and judgment for money damages.
RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, J., concurs in the syllabus and judgment.