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Overbee v. Van Waters Rogers

United States Court of Appeals, Sixth Circuit
Jun 19, 1985
765 F.2d 578 (6th Cir. 1985)

Summary

holding Rule 60(b) relief appropriate where judgment not final

Summary of this case from Blue Diamond Coal Co. v. Trustees of the UMWA Combined Benefit Fund

Opinion

No. 84-3324.

Argued March 15, 1985.

Decided June 19, 1985.

Bernard K. Bauer, argued, O'Brien Bauer Co., L.P.A., Findlay, Ohio, for plaintiffs-appellants.

M. Donald Carmin, argued, Eastman and Smith, Toledo, Ohio, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Ohio.

Before MERRITT, and MILBURN, Circuit Judges, and GILMORE, District Judge.

The Honorable Horace W. Gilmore, Judge, United States District Court for the Eastern District of Michigan, sitting by designation.


In this second appeal to this court, plaintiffs present the question of whether relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) in a diversity action should be granted, where during the first appeal to this court, the Ohio Supreme Court settled a question of law adversely to the plaintiffs, but during the remand from this court on an unrelated issue, the state court reversed itself with the result that the federal district court was clearly in error on a question of Ohio state law.

I.

Plaintiffs originally filed this products liability action in Ohio state court seeking recovery in strict liability and negligence for injuries received by Mr. Overbee in an industrial accident. The case was subsequently removed to federal court pursuant to diversity jurisdiction. At the close of plaintiffs' proof, the defendants obtained a directed verdict on the issue of strict liability. At the end of all proof, the plaintiffs requested an instruction on comparative negligence; however, the court instructed the jury on contributory negligence. The jury returned a verdict in favor of the defendants on the issue of negligence and the court entered judgment on April 3, 1981. Plaintiffs then moved for a judgment notwithstanding the verdict and an evidentiary hearing pursuant to a Rule 59 motion for a new trial based on the allegation that extraneous prejudicial information was improperly brought before the jury. The court denied all motions without conducting a hearing on the jury misconduct issue. Plaintiffs then filed their first appeal.

Effective June 20, 1980, the Ohio legislature substituted comparative negligence for contributory negligence. Ohio Rev. Code Ann. § 2315.19 ("Act"). The legislation was unclear, however, as to whether the new Act applied only to those causes of action that accrued after June 20, 1980, or to actions tried after that date. (This cause of action accrued on November 11, 1977; trial began on March 31, 1981.) On August 11, 1982, while the case sub judice was on the first appeal, the Supreme Court of Ohio held that the Act establishing comparative negligence applied only to causes of action which accrued after June 20, 1980. Viers v. Dunlap, 1 Ohio St.3d 173, 438 N.E.2d 881 (1982). Although in their post-trial motions and in their brief in the first appeal to this court plaintiffs urged the applicability of comparative negligence, the plaintiffs conceded during oral argument that the issue was settled as a result of the Viers decision. Overbee v. Van Waters Rogers, 706 F.2d 768, 770 n. 2 (6th Cir. 1983).

On May 10, 1983, this court affirmed the district court's directed verdict on the issue of strict liability, but reversed the court's denial of the motion for a new trial holding that the district court erred in refusing to hold an evidentiary hearing on the issue of jury misconduct and remanded the case for an evidentiary hearing on that issue. While the case was on remand to the district court for reconsideration of the motion for a new trial, but prior to the evidentiary hearing, the Ohio Supreme Court reversed itself and held that the Act, supra, applied to all actions tried after June 20, 1980. Wilfong v. Batdorf, 6 Ohio St.3d 100, 451 N.E.2d 1185 (1983). Consequently, the plaintiffs filed a motion pursuant to Federal Rule of Civil Procedure 60(b)(6) for relief from the judgment requesting a new trial in order that the jury might be instructed on comparative negligence.

Upon remand the district court conducted the evidentiary hearing and thereafter held that there was no basis for setting aside the jury verdict. In the same opinion and order, the court overruled the Rule 60(b)(6) motion for relief from judgment without analysis. Judgment was entered for the defendants and this appeal followed.

II.

Federal Rule of Civil Procedure 60(b)(6) provides, in pertinent part, that:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (6) any other reason justifying relief from the operation of the judgment.

Relief from judgment under Rule 60(b)(6) is appropriate to accomplish justice in an extraordinary situation and is addressed to the sound discretion of the court. Pierce v. Cook Co., 518 F.2d 720 (10th Cir. 1975), cert. denied, 423 U.S. 1079, 96 S.Ct. 866, 47 L.Ed.2d 89 (1976). Numerous courts have held that the mere showing of a change in the law is not enough to demonstrate such an extraordinary situation when the judgment has become final. See, e.g., id. However, we are of the opinion that the unique facts of this case compel the granting of the motion and accordingly, we hold that the district court abused its discretion in denying the motion.

in our view, at the time the plaintiffs filed the motion, the judgment was not final. On the date of the filing of the Rule 60(b)(6) motion, the district court had not held the evidentiary hearing on the issue of jury misconduct pursuant to this court's reversal of the denial of the plaintiffs' motion for a new trial. A motion for a new trial suspends the finality of a judgment. See Morse v. United States, 270 U.S. 151, 46 S.Ct. 241, 70 L.Ed. 518 (1926) (motion for new trial suspends the running of time for taking an appeal).

Second, we think this case presents extraordinary circumstances justifying relief from the April 3, 1981, judgment. The action of the Ohio Supreme Court in reversing itself within one year is certainly an unusual occurrence. Had that court reached the decision in Viers, supra, that it ultimately reached in Wilfong, supra, plaintiffs would have prevailed on the instruction issue during the first appeal to this court. See Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941) (federal appellate courts must apply state law in accordance with then controlling decision of the state courts even if such requires reversal of a judgment which was correct when rendered); Junge v. Brothers, 16 Ohio St.3d 1, 475 N.E.2d 477 (1985) (per curiam) (jury given contributory negligence instruction in trial commenced after June 20, 1980; direct appeal pending when Wilfong decided; held, appellant entitled to new trial with comparative negligence instruction). Cf. Doggrell v. Great Southern Box Co., 208 F.2d 310 (6th Cir. 1953) (change in state law while petition for rehearing pending before federal appellate court). Relief under Rule 60(b)(6) should be provided "when substantial justice will thus be served." Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538, 542 (2d Cir. 1963). In our opinion justice would not be served by penalizing plaintiffs for the actions of the Ohio Supreme Court.

The defendants argue that the plaintiffs failed to effectively and properly object to the court's refusal to give the comparative negligence charge. Our review of the record convinces us that this argument is without merit. Additionally, the defendants contend that this court does not have the power to review or reopen an aspect of litigation from which a prior appeal was taken, then conceded and abandoned. Although plaintiffs may have conceded the instruction issue during the first appeal to this court, see 706 F.2d at 770 n. 2, we believe that this argument is without merit. Plaintiffs timely raised the issue before the district court as soon as possible following the Wilfong decision. This is all that could be expected and nothing more should be required.

III.

For the reasons stated herein, the decision of the district court is REVERSED and the case is remanded with instructions to grant the plaintiffs a new trial.


Summaries of

Overbee v. Van Waters Rogers

United States Court of Appeals, Sixth Circuit
Jun 19, 1985
765 F.2d 578 (6th Cir. 1985)

holding Rule 60(b) relief appropriate where judgment not final

Summary of this case from Blue Diamond Coal Co. v. Trustees of the UMWA Combined Benefit Fund

holding that since the judgment was not final, and the Ohio Supreme Court reversing itself within one year was unusual, the district court abused its discretion in not granting Rule 60(b) relief

Summary of this case from Blue Diamond Coal Co. v. Trustees of the UMWA Combined Benefit Fund

holding on the basis of "the unique facts of this case" that district court abused its discretion in denying Rule 60(b) relief where, at time plaintiff filed motion, judgment was not final, and action of Ohio Supreme Court of reversing itself within one year was certainly unusual

Summary of this case from Batts v. Tow-Motor Forklift Co.

holding on the basis of "the unique facts of this case" that district court abused its discretion in denying Rule 60(b) relief where, at time plaintiff filed motion, judgment was not final, and action of Ohio Supreme Court of reversing itself within one year was certainly unusual

Summary of this case from U.S. v. Orleans Parish School Board

finding that the Ohio Supreme Court reversing itself was an "unusual circumstance" justifying relief

Summary of this case from Brookdale Senior Living, Inc. v. Caudill

In Overbee for example, we explained that "[n]umerous courts have held that the mere showing of a change in the law is not enough to demonstrate... an extraordinary situation when the judgment has become final," but concluded that the unique facts of that case actually compelled the grant of Rule 60(b)(6) relief. 765 F.2d at 580 (emphasis added).

Summary of this case from Wogoman v. Abramajtys

In Overbee, for example, we explained that "[n]umerous courts have held that the mere showing of a change in the law is not enough to demonstrate... an extraordinary situation when the judgment has become final", but concluded that the unique facts of that case actually compelled the grant of Rule 60(b)(6) relief. 765 F.2d at 580 (emphasis added).

Summary of this case from Stokes v. Williams

In Overbee, a diversity case, the Ohio State Supreme Court reversed itself on a legal issue which had been controlling in the federal court.

Summary of this case from Klein v. U.S.

In Overbee v. Van Waters & Rogers, 765 F.2d 578, 580 (6th Cir. 1985), the Sixth Circuit concluded a change in the law and the unique fact that it occurred while the case was on remand to the district for reconsideration of a motion for a new trial, but prior to the evidentiary hearing compelled the granting of the Rule 60(b)(6) motion.

Summary of this case from West v. Carpenter

In Overbee v. Van Waters & Rogers, 765 F.2d 578 (6th Cir. 1985), the Sixth Circuit found that a district court abused its discretion when it denied a Rule 60(b)(6) motion, where an Ohio Supreme Court case the Court had previously relied on was overturned subsequent to the district court's order.

Summary of this case from Richter v. Process Mach., Inc.

In Overbee v. Van Waters Rogers, 765 F.2d 578, 580 (6th Cir. 1985), the Sixth Circuit stated that a district court should grant relief from operation of an order or judgment under Rule 60(b)(6) when it determines in its sound discretion that "substantial justice would be served" by vacating a prior order.

Summary of this case from U.S. v. Certain Land Situated in Detroit

In Overbee v. Van Waters Rogers (6th Cir. 1985), 765 F.2d 578, the Ohio Supreme Court essentially changed the effective date of a statutory change by the legislature regarding contributory and comparative negligence.

Summary of this case from Koch v. Billings School District No. 2

In Overbee, on June 20, 1980, the Ohio legislature changed relevant statutory provisions from contributory negligence to comparative negligence.

Summary of this case from Koch v. Billings School District No. 2

In Overbee, the plaintiff appealed several issues to the Ohio Supreme Court, including whether the jury should have been instructed on comparative negligence. During the pendency of that appeal, but before oral argument, the Ohio Court decided a separate case in which it reached a result directly opposite of Overbee's argument on comparative negligence.

Summary of this case from Koch v. Billings School District No. 2

In Overbee v. Van Waters Rogers, 765 F.2d 578 (6th Cir. 1985), the state supreme court reversed itself while there was a motion pending for a new trial on different grounds in the case in federal court.

Summary of this case from Norman v. Nichiro Gyogyo Kaisha, Ltd.
Case details for

Overbee v. Van Waters Rogers

Case Details

Full title:ISSAC OVERBEE, JR.; BETTY S. OVERBEE, PLAINTIFFS-APPELLANTS, v. VAN WATERS…

Court:United States Court of Appeals, Sixth Circuit

Date published: Jun 19, 1985

Citations

765 F.2d 578 (6th Cir. 1985)

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