Summary
concluding that although notice of appeal mistakenly specified that appeal was taken from order denying the motion for new trial rather than from the final judgment entered on the merits, appellants sufficiently preserved their right to appeal, since the notice of appeal did not materially mislead appellee.
Summary of this case from Dixon v. O'BrienOpinion
No. 81-1277
Decided June 23, 1982.
Appeal — Notice of appeal — Mistakenly specifying order appealed from — Harmless error, when — App. R. 3(C) not violated.
APPEAL from the Court of Appeals for Lake County.
Maritime Manufacturers, Inc., appellee herein, filed an action against appellants, Hi-Skipper Marina, Eugene C. Kirby and Yvonne Kirby, in the Court of Common Pleas of Lake County. The matter was tried to the court on April 24 and 25, 1980, and judgment was subsequently entered for appellees on July 3, 1980.
On July 17, 1980, appellants filed a motion for new trial, which was denied on September 17, 1980. Thereafter, on October 14, 1980, appellants filed the following notice of appeal:
"Notice is hereby given that defendants hereby appeal to the Court of Appeals of Lake County, Eleventh Judicial District, from the final judgment entered in this action on September 17, 1980, in the overruling of the motion for new trial."
This notice was filed within the time period provided for in App. R. 4(A).
On appeal, the parties briefed and argued the merits of the case. Notwithstanding, the Court of Appeals dismissed the appeal sua sponte, holding that the court was without jurisdiction to address the assignments proposed since "[a]ll four of the assignments of error are clearly and unequivocally directed to the alleged errors of the trial court in the conduct of the case on its merits only" and since "[n]one of the assignments address the failure of the Court to grant a new trial." The court further reasoned that "[t]he judgment of the trial [court] on the merits, not having been appealed, is res judicata of the issues raised * * *."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Chattman, Moss, Chattman, Garfield Friedlander and Mr. Douglas J. Paul, for appellee.
Direnfeld Greene Co., L.P.A., Mr. Bernard B. Direnfeld and Mr. Douglas C. Blackburn, for appellants.
The sole issue presented by this appeal is whether the Court of Appeals lacked jurisdiction to hear the appeal because the notice of appeal mistakenly specified that the appeal was taken from the order denying the motion for new trial rather than from the final judgment entered on the merits.
The Court of Appeals reasoned that it was without jurisdiction to consider this appeal since appellants' notice of appeal improperly designated the judgment appealed from and thus violated App. R. 3. In pertinent part, App. R. 3(C) provides that "* * * [t]he notice of appeal shall * * * designate the judgment, order or part thereof appealed from * * *." This strict construction of App. R. 3(C) by the Court of Appeals is, however, inconsistent with the general attitude taken by this court toward the construction of procedural rules, case law of Ohio, the purpose underlying the notice of appeal requirement, as well as with the position of the United States Supreme Court.
This court has long recognized that, in construing the Rules of Appellate Procedure, the law favors and protects the right of appeal and that a liberal construction of the rules is required in order to promote the objects of the Appellate Procedure Act and to assist the parties in obtaining justice. In re Guardianship of Love (1969), 19 Ohio St.2d 111, 115. See, also, In re Guardianship of Wisner (1947), 148 Ohio St. 31, 34-35. "* * * The legislative purpose throughout the act was obviously to liberalize procedure upon appeals and to prevent technicalities from being fatal to substantive rights." Couk v. Ocean Accident Guar. Corp., Ltd. (1941), 138 Ohio St. 110, 115.
An examination of the prior decisions of this court reveals that this court has consistently adhered to the policy of exercising all proper means to prevent the loss of valuable rights when the validity of a notice of appeal is challenged solely on technical, procedural grounds. For example, in Couk v. Ocean Accident Guar. Corp., Ltd., supra, this court upheld the refusal to dismiss an appeal where the notice of appeal contained a defect in that the judgment appealed from was given an erroneous date. See, also, Mosey v. Hiestand (1941), 138 Ohio St. 249. And, an amendment of the notice of appeal to include an order not mentioned in the original form of the notice was permitted by this court in Richards v. Indus. Comm. (1955), 163 Ohio St. 439. In reaching these results, this court has emphasized that the rules must be construed in light of the purpose to which they are to serve.
Under App. R. 3(E), the Court of Appeals may, within its discretion and upon such terms as are just, allow the amendment of a timely filed notice of appeal.
These cases construed R.C. 2505.05, or its predecessor, which is to the same effect as App. R. 3(C).
The purpose of a notice of appeal, as stated in Capital Loan Savings Co. v. Biery (1938), 134 Ohio St. 333, 339, is to "* * * apprise the opposite party of the taking of an appeal." "* * * If this is done beyond [the] danger of reasonable misunderstanding, the purpose of the notice of appeal is accomplished." Couk v. Ocean Accident Guar. Corp., supra, at page 116. See, also, Richards v. Indus. Comm., supra.
In this spirit of liberal construction of procedural questions and in light of the policies underlying the notice of appeal requirement, this court must find that appellants have preserved their right to appeal. Although appellants' notice of appeal perhaps did not comply in a technical sense with App. R. 3(C), the notice nonetheless served the purpose intended. A careful review of the record in this case clearly indicates that neither the Court of Appeals nor the appellee can pretend that it was not fully advised by this notice of appeal of just what appellants were undertaking to appeal from.
By looking behind the form of the notice, it is obvious that the clear intent of the appellants was to appeal from the final judgment on the merits. The appeal, as evidenced by the assignments of error, attempted to probe, as did the motion for new trial, the validity of the judgment wherein appellants were denied recovery of damages of $30,000 against appellee for the manufacture and sale of an alleged unseaworthy boat. Indeed, both sides fully briefed the merits and orally argued the same. Based on these factors, it is clear that the notice of appeal did not materially mislead the appellee. Under these circumstances, appellee was not prejudiced nor taken by surprise. Hence, this court holds that any mistake in appealing from the order denying the motion for new trial rather than from the judgment should be treated as harmless error and that the appeal should be treated as if arising from the final judgment.
Our holding today is also in accord with the approach taken by the United States Supreme Court. In Foman v. Davis (1962), 371 U.S. 178, the dismissal of an appeal because of the failure to specify in the notice of appeal that review was sought of the original judgment as well as the district court's denial of motions to vacate the judgment and amend the complaint was reversed. In so holding, the court stated, at pages 181-182, that:
"It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. `The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' Conley v. Gibson, 355 U.S. 41, 48. The Rules themselves provide that they are to be construed `to secure the just, speedy, and inexpensive determination of every action.' Rule 1."
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
Judgment reversed.
W. BROWN, Acting C.J., REILLY, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.
REILLY, J., of the Tenth Appellate District, sitting for CELEBREZZE, C.J.