Petition for Writ of Certiorari — Palac v. Smith

FILE D (1)

01 851 NOVO 4 2001

CEICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

DEBORAH S. PALAC,

Petitioner,

v.

GARY R. SMITH and PRECISION ELECTRIC, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Ohio

PETITION FOR A WRIT OF CERTIORARI

Fred Austin Culver

239 Maryland, N.E.

Warren, Ohio 44483

(330) 394-6711

Counsel of Record

Lois L. Miller

401 Hawthorne Trail

Cortland, Ohio 44410

(330) 637-5438

i

QUESTION PRESENTED

Whether the Due Process Clause of the Federal

Constitution prohibits a state court from applying procedural

rules in a manner that, without fair notice, deprives a

plaintiff of her opportunity to appeal on a state law claim?

ii

PARTIES

The parties to this proceeding are set forth in the

Caption. -

ili

TABLE OF CONTENTS

Page

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Constitutional Provision, Code and Rules Involved ............ l

i oi cinwessueeadoceaencnoesioencenivenres 2

Reasons For Gramting the WEI ...0...00.sc0scccccesscevessesosssecsoneess 6

I. There is a conflict of decisions among

the states respecting the proper practice

with regard to the use of the substance and

form analysis when time tolling provisions

I sdaniemsnonsnentervnoneee 6

II. The lower court ruling was erroneous

since it left the Petitioner without proper

due process notice or fair warning of when

her notice of appeal ought to have been

a cnidictetlbeenmarniemnonsonene 8

III. This case raises an important due

process Of law iSSUE ..............scssereeseereeseseneseesees :. 10

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TABLE OF AUTHORITIES

Page(s)

CASES:

Barr v. City of Columbia, 378 U.S. 146 (1964) .........see0 11

Board of Regents of State Colleges, et al. v. Roth,

Se se Oe ED sich ecteiicsccbenidescacadniesebcinsenoiwntes 12

Browder v. Director, Ill. Dep't of Corrections, 434

CF OOO idiineisiciddinestcsanitbinsceviaticbcchecmeiens 9

Cah BR, FIO Fe TOT CGO cecerevvvccssntsitccssecessevcestvcive 7

Connecticut, et al. v. Doehr, 501 U.S. 1 (1991) «uu... 13

DBSI/TRI V, et al. v. Bender, et al., 948 P.2d 151

CRO i siksthscecieainciisnasecaleciaadsanatinashatenieenianenaeianenntanpienss 7

Dozier v. Ingram Barge Co., 706 So.2d 1064 (1998) .......... 7

Goodman v. Lukens Steel Co., et al., 482 U.S. 656

IE B viiciicatinsteiccnsiepniesiontideineinbaneteuencbiaalaniaves wnetene 12

INB Nat'l Bank v. Moran Elec. Serv., Inc., 608

Ie PN ED dicesihaiishaniconitiecceespsiewanenieenonntonianes 7

In re Nomination Petition of Johnson, 516 A.2d 1290

CN snvteuichiccnccdniisvadentindaiiiessstspitnidemuntotiactacctartomes 7

Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10

a Fe saircheckivcecstivissccnitnitcsibsevnvanniasititets 7

vi

Table of Authorities continued

Page(s)

Logan v. Zimmerman Brush Co., et al., 455 U.S. 422

SEITE iisssteu cbuiesa cbmc clisassbininstces ckieasuni nnsiadntane 9,11, 13

Manufacturers Mut. Ins. Co., et al. v. Sullivan, 526

Se GD scitdiciieeestegaossteineeinsabiinbiidestcbian’ 11,12

Michigan v. Long, 463 U.S. 1032 (1977) ......ccccccsceesseeeesees 1]

Montgomery Ward & Co. v. Duncan, 311 U.S. 243

UNS sc csiisithcaeiniaieiietacntbininiaaideieapich cae Ni a iaaceg 10

Morse v. United States, 270 U.S. 518 (1925)... ccceeeeeeeees 8

Mullane v. Central Hanover Bank & Trust Co., et |

EF ee OED aiaihialinsinsndetyrtiteteesechcinsatnses 12

Perez-Perez v. Popular Leasing Rental, Inc., 993

ee ES | enc ee EET 9

Pitts v. Ohio Dep't of Transp., 423 N.E.2d 1105

| REO Een acne wc Eee ee 12 eS Tee 11

Quinn v. Millsap, 491 U.S. 95 (1989) ......ccccesesseteeseeeeeenees 11

Southern Maine Properties Co. v. Johnson, 724 A.2d

ee Se echidna lisintiltnnbcbbabenntdstllcbialibninbinasbedbved 7

Strucki v. State of Florida, 365 So.2d 222 RARDIN 7

Tennessee Farmers Mut. Ins. Co. v. Farmer, 970

Be I ITED ss iccsiscs cs ssicelasedelieibetigsnnaneaenbiinaent 7

Vii

Table of Authorities continued

Page(s)

OTHER AUTHORITIES:

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MISCELLANEOUS:

Baldwin's Civil Practice, Judgment 624-625, § AT

ERR RDRTEIK Sekai SAU eT ERO 3,4

Petitioner Deborah S. Palac respectfully prays that

this Court grant a writ of certiorari to review the entry of the

Supreme Court of Ohio entered on September 5, 2001.

OPINIONS BELOW

The September 5, 2001 entry of the Supreme Court

of Ohio, which is not officially reported, is set out at p. la of

the Appendix to this petition. The April 23, 2001

memorandum opinion of the court of appeals, which is not

officially reported, is set out at pp. 2a-6a of the Appendix.

The judgment entry thereon is set out at p. 7a of the

Appendix. The October 31, 2000 judgment entry of the

court of common pleas, which is not officially reported, is

set out at p. 8a of the Appendix.

JURISDICTION

The Supreme Court of Ohio entered its entry on

September 5, 2001. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISION, CODE

AND RULES INVOLVED

Section One of the Fourteenth Amendmert of the

Federal Constitution states in pertinent part:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

2

Ohio Rule of Civil Procedure 59, NEW TRIALS,

States in pertinent part, "(B) Time for motion. A motion for

a new trial shall be served not later than fourteen days after

the entry of the judgment."

Ohio Rule of Appellate Procedure 4, APPEAL AS

OF RIGHT -- WHEN TAKEN, states in pertinent part:

(B) Exceptions. The following are exceptions

to the appeal time period in division (A) of

this rule: . . . (2) Civil . . . post-judgment

motion. In a civil case... if a party files a

timely motion for . . . a new trial under Civ.

R. 59(B) . . . the time for filing a notice of

appeal begins to run as to all parties when the

order disposing of the motion is entered.

STATEMENT OF THE CASE

On November 5, 1991, the Plaintiff-Petitioner

Deborah S. Palac ("Petitioner") was seriously and

permanently injured as a result of the tortious negligence of

Defendants-Respondents Gary R. Smith and Precision

Electric, Inc. ("Respondents"), whose truck failed to yield

the right of way and crashed into her car.

On November 4, 1993 and on July 22, 1996, the

Petitioner filed and re-filed a state law cause of action

against the Respondents pursuant to OHIO R. Civ. P.

41(A)(1) and OHIO REV. CODE § 2307, alleging the tort of

negligence during the course, scope, or authority of

employment or agency.

On May 1, 2000, the case proceeded to jury trial.

The jury returned a verdict in favor of the Petitioner, and

judgment on the verdict was entered on May 5, 2000. The

Petitioner was very disappointed in the amount of the verdict

since it was barely enough to cover her medical and legal

3

bills to date, and she was worried since she could not provide

for her future medical care with the inadequate amount of the

verdict.

Shortly thereafter, Respondents contacted Petitioner

wanting a reduction in the jury's verdict, making reference to

a letter, written some six years earlier, in which one of

Petitioner's former attorneys, who had not individually

signed a contract of employment with the Petitioner, -greed

to reimburse the Heritage Insurance Company regarding a

subrogation claim.

Petitioner was in the process of looking for this letter

and its exact terms when Respondent filed a pleading entitled

"motion for credit against the jury verdict or for remittur"

[sic]. This pleading was served on the Petitioner on the

fourteenth day after the entry of the jury's verdict, May 19,

2000.

Remittitur is a special form of motion for new trial

seeking to reduce the amount of awarded damages. A

motion for remittitur must be served within fourteen days of

the entry of the judgment, and falls within the ambit of OHIO

R. Civ. P. 59. OHIO R. App. P. 4(B)(2) then operates to toll

the time within which to file a notice of appeal until the court

rules on the remittitur motion.’

The trial court set a hearing on Respondents’ "motion

for credit against the jury verdict or for remittur" on July 20,

2000. Seven days before the hearing, on July 13, 2000,

on"

' Baldwin's Civil Practice, Judgment 624-625, § AT 59-41 (1999)

Timing of Service states:

Rule 59(B) requires the motion to be served

within fourteen days of the judgment entry. This time

limit cannot be extended by the trial court or by the

parties. The trial court is prohibited from considering

or entertaining a motion for a new trial served later

than the time allowed. Further if the motion for a new

trial is not timely made, it does not suspend the running

of the time for filing a notice of appeal. . . .

4

Petitioner served and filed her opposition to the motion for

remittitur in accordance with OHIO R. Civ. P. 6(D).

Petitioner's opposition contained its own motion for

new trial and she entitled it "opposition to defendants'

motion for remittitur; plaintiffs motion for additur or new

trial solely on the issue of damages as an alternative to

defendant's motion for remittitur."

Such an opposition is not governed by the fourteen

day time limit for service in OHIO R. Civ. P. 59 because it is

an assertion for a new trial contained within an opposition.

According to Baldwin's Civil Practice, such a pleading is

subject to the time limits imposed for filing and service of

briefs in response to motions made by an opposing party.”

Several days before the hearing, Respondents

requested that the hearing be taken off calendar, and the

hearing was rescheduled and conducted on August 25, 2000.

On October 31, 2000, the trial court made its

dispositive ruling granting Respondents’ motion, allowing a

$2,000 reduction of the verdict. In its judgment entry, the

trial court refers to Respondents' pleading as a "motion for

2 Ohio Rule of Civil Procedure 6, TIME, states in pertinent part, "(D)

Time: motions. A written motion . . . and notice of the hearing thereof

shall be served not later than seven days before the time fixed for the

hearing... ."

> Baldwin's Civil Practice, Judgment 624-625, § AT 59-41 (1999)

Timing of Service states:

The time limit on the service of a motion does

not preclude a party from arguing, in a brief in

opposition, made outside the time limit of the Rule . . .

that, as an alternative to not denying the Rule 59(B) . . .

motion, the court should order a new trial. An

argument for a new trial contained in a brief

responding to an opposing party's motion . . . is nota

true Rule 59 motion. Such an assertion in a reply brief

is subject to the time limits imposed by local rules of

court on the service and filing of briefs in response to

motions by an opposing party... .

5

credit against the jury's verdict." The trial court refers to

Petitioner's pleading as a "motion for new trial and/or

additur," and denied it as being untimely filed. (App. 8a).

On November 30, 2000, Petitioner filed her notice of

appeal, within thirty days of the October 31, 2000 trial court

ruling.

On April 23, 2001, the court of appeals dismissed

Petitioner's appeal as being untimely filed since it ruled that

the "true nature" of Respondents’ "motion for credit against

jury verdict or for remittur [sic] was a motion for credit.

(App. 2a-7a).

On June 6, 2001, Petitioner filed her memorandum in

support of jurisdiction with the Supreme Court of Ohio,

pursuant to the Constitution of Ohio and the Federal

Constitution, setting forth the denial of protection of due

process of law since she was without proper notice of when

else she could have filed her notice of appeal.

On September 5, 2001, the Supreme Court of Ohio

declined jurisdiction to hear the case and dismissed

Petitioner's appeal as not involving any _ substantial

constitutional question. (App. 1a).

In summary, Petitioner has a state law cause of action

that she wishes to pursue by filing her notice of appeal.

However, because of the way Respondents filed their

ambiguously worded motion and because of the way that the

lower courts treated this motion, Petitioner was deprived of

her opportunity to appeal on a state law claim.

Under the rules of the state, if the Respondents’

motion was a motion for remittitur, it would toll the time for

appeal. The Respondents then said their motion was not a

remittitur. The lower courts then said it was not a remittitur.

When the Petitioner filed her notice of appeal, it was deemed

to be untimely, the courts saying, in effect, that the tolling

did not count. |

6

REASONS FOR GRANTING THE PETITION

The use of a substance and form analysis in motion

and pleading practice has become prevalent among the

states. However, there are factions among the states

regarding when and how to implement such an analysis,

especially when time tolling provisions are implicated.

Since few decisions from this type of practice receive

appellate review, this case presents a timely opportunity for

this Court to provide guidance. Moreover, the decision

below is erroneous, and raises an important due process of

law issue.

I. There is a conflict of decisions among the states

respecting the proper practice with regard to the

use of the substance and form analysis when time

tolling provisions are affected.

The practice of examining moving papers, pleadings,

and claims with a substance and form analysis has become a

widespread practice among the states. Since this is an

analysis that takes place mostly within the pleading and

motion practice, the decisions that are made by the trial court

are usually of an unreported nature and rarely reach the level

of appellate review, even though they are often outcome

determinative. Yet, the inconsistencies among the states in

utilizing this analysis are evident from those cases that have

been reported that address this issue.

In the instant case, the lower court held to a

substance-controls-title rule even though the Respondents’

motion for remittitur has procedural significance beyond the

merits of its substance. In holding to this substance over

form analysis, the lower court denied notice to the Petitioner

that is guaranteed by due process of law protection. This

decision underscores the conflict among the states over when

7

and how a substance and form analysis is appropriate when

time tolling provisions are affected. (App. 2a-7a).

The State of Ohio ruling expressly conflicts with the

Supreme Court of Montana which has never denied

jurisdiction based on a post-trial Rule 59 motion that has

been properly labeled but does not include substantive

language in support of its label. Carr v. Bett, 970 P.2d 1017,

1022 (1998).

In Carr v. Bett, the Supreme Court of Montana

specifically held that when a motion is identified and titled

pursuant to Rule 59, it will not analyze the substance of the

motion because to do so "would mean that a party who has

filed a Rule 59" motion could "never be confident that it fell

within the framework of Rule 59" with its tolling provision.

It reasoned that to do so would mean that there would always

be a "looming possibility" that the subsequent appeal could

be dismissed if examined under a "judicial microscope." Jd.

On the contrary, the States of Idaho, Louisiana and

Pennsylvania have used a similar form and substance ~

analysis in a manner that has denied tolling provisions.‘

On the other hand, the States of Florida, Indiana,

Maine, Tennessee, and Texas have applied the substance

over form examination to decide that certain motions will

confer time tolling provisions.

A decision from this Court holding that pleadings

that have procedural significance founded in the Due Process

Clause beyond the merits of their content cannot be

* DBSI/TRI V, et al. v. Bender, et al., 948 P.2d 151 (1997); Dozier v.

Ingram Barge Co., 706 So.2d 1064 (1998); Jn re Nomination Petition of

Johnson, 516 A.2d 1290, 1292 (1985).

> Strucki v. State of Florida, 365 So.2d 222 (1978); INB Nat'l Bank v.

Moran Elec. Serv., Inc., 608 N.E.2d 702 (1993); Southern Maine

Properties Co. v. Johnson, 724 A.2d 1255 (1998); Tennessee Farmers

Mut. Ins. Co. v. Farmer, 970 S.W.2d 453 (1998); Lane Bank Equip. Co.

v. Smith S. Equip., Inc., 10 S.W.3d 308 (2000).

8

subjected to a substance over form analysis could resolve

some of the conflicts that exist among the states.

For systemic and economic reasons, securing

appellate review within a motion and pleading practice on

the substance and form issue is difficult. Therefore, this case

presents a good gpportunity for this Court to clarify the Due

Process Clause protections of citizens who are faced with

inconsistent and often ad hoc applications of a substance and

form analysis that may inhere lesser rights than are

guaranteed by the Federal Constitution. (App. 2a-7a).

II. The lower court ruling was erroneous since it

left the Petitioner without proper due process

notice or fair warning of when her notice of

appeal ought to have been filed.

Although it is accurate to contend that a motion for

credit does not act to toll appellate timelines, this is not the

case regarding a motion for remittitur that is served on an

opponent on the fourteenth day after entry of judgment, and

is governed by OHIO R. Civ. P. 59 and OHIO R. App. P.

4(B)(2).

There can be no doubt that "a duly and seasonably

filed" motion for remittitur "suspends the running of the time

for . . . an appeal," and that the time within which one has to

file her notice of appeal "begins from the date" of the ruling

on that motion. Morse v. United States, 270 U.S. 518, 519

(1925). '

The Petitioner was denied the protection of due

process of law and proper notice when the lower courts

resorted to a "substance over form" analysis or "true nature"

construction of Respondents' motion for remittitur, and

thereby dismissed Petitioner's notice of appeal as being

untimely. U.S. CONST. amend. XIV, § 1.

When the lower courts decided not recognize the

OHIO R. Civ. P. 59 label and service of Respondents’ moving

9

papers, the tolling provision of OHivu R. App. P. 4(B)(2)

became inapplicable with the prejudicial result that

Petitioner's notice of appeal was deemed to be untimely

filed, and her appeal dismissed. Compare Browder v.

Director, Ill. Dep't of Corrections, 434 U.S. 257, 261 (1978)

(holding that respondent's neglect to label his motion

resulted in its loss of Rule 59's tolling treatment).

This decision by the lower courts is erroneous since it

prejudiced the Petitioner by eliminating the basis for her

timely notice of appeal, and denied her of due process notice

of when her appeal could be timely filed. Further, this denial

violates due process because the Petitioner was not given fair

warning that the appellate tolling rule would not apply. Ata

minimum due process of law requires that the Petitioner be

given notice of when to file her notice of appeal. Logan v.

Zimmerman Brush Co., et al., 455 U.S. 422, 428 (1982).

Moreover, the lower courts have essentially accepted

the argument of Respondents that they used a term they did

not intend to use in their timely served motion for remittitur.

However, Petitioner had no other choice but to rely upon the

plain language of opposing counsel in calculating the

timeliness for filing her notice of appeal. Surely, it must be

presumed that before opposing counsel files moving papers

that any legal terminology has been chosen, researched,

dictated, proof read, and a signature affixed thereto.

Further, remittitur is a term in the law that speaks for

itself and "is a classic Rule 59 claim." Perez-Perez v.

Popular Leasing Rental, Inc., 993 F.2d 281, 283 (lst Cir.

1993). It was not foreseeable to the Petitioner that the

Respondents did not intend to use the legal language that

they themselves selected. Therefore, it is reasonable that the

Petitioner relied upon the Respondents’ use of the remittitur

language, in their alternatively styled motion, as a means

under these circumstances to spring the tolling provision of

OHIO R. App. P. 4(B)(2) when timing her notice of appeal.

See, e.g., Montgomery Ward & Co. v. Duncan, 311 U.S. 243,

10

251 (1940) (recognizing that each motion in an alternatively

styled motion has its own office).

As a result, an anomalous situation has arisen in

which the sins of the Respondents have been visited upon the

Petitioner, who has. been prejudiced and denied appellate

review on the merits of her appeal.

Additionally, the Petitioner does not know at what

other time she could have filed her notice of appeal without

causing serious logistical problems, such as transmission of a

record to the court of appeals that was not yet complete, or

setting in motion a briefing schedule while hearings in the

trial court were still taking place.

The erroneous decision made by the lower courts in

this case underscores the importance of using extreme

caution when utilizing a substance and form analysis,

especially when doing so confers lesser due process rights

than that guaranteed by the Federal Constitution. U.S.

CONST. amend. XIV, § 1.

Since Respondents’ motion for remittitur affected the

Petitioner's judgment of when to file her notice of appeal, it

was prejudicial error for the lower courts to dismiss

Petitioner's appeal as being untimely filed. Ultimately, the

lower court decision deprived the Petitioner of property, that

is her state law cause of action, without fair warning or due

process of law. Jd.

Ill. This case raises an important due process of

law issue.

At the outset, as an important and unresolved

question of law, it cannot it be argued that the State of Ohio

has an independent and adequate state ground for its decision

that would preclude this Court's review of the due process

issue raised in this case.

First, there is no plain statement from the state court

that it was relying on a state law ground as an independent

1]

basis for its decision. Michigan v. Long, 463 U.S. 1032

(1977).

In Quinn v. Millsap, this Court refused to find an

independent or adequate state ground when there was no

express statement from the state court that its judgment was

based on state law grounds. 491 U.S. 95 (1989).

Second, the substance over form analysis that was

applied in the instant case is inconsistently followed by the

state court. In fact, the Supreme Court of Ohio has stated

that complications concerning appeal timeliness and of

having to inspect mislabeled motions to decipher form over

substance should be avoided. Pitts v. Ohio Dep't of Transp.,

423 N.E.2d 1105, 1108 (1981).

This Court has stated that "state procedural

requirements which are not strictly or regularly followed

cannot deprive us of the right to review." Barr v. City of

Columbia, 378 U.S. 146, 149 (1964).

The initial inquiry in every due process challenge is

whether the Petitioner has been deprived of a constitutionally

protected interest in property or liberty caused by state law,

fairly attributable to the state. Manufacturers Mut. Ins. Co.,

et al. v. Sullivan, 526 U.S. 40, 59 (1999).

In the instant case, the Petitioner has a statutorily

created and protected property interest for purposes of the

Due Process Clause in her state law cause of action that

resulted from the tortious negligence of the Respondents.

Moreover, the rules of civil procedure are a right or privilege

created by the state. It is undisputed that a legal cause of

action constitutes a "species of property protected by the

Fourteenth Amendment's Due Process Clause." Logan v.

Zimmerman Brush Co., et al., 455 U.S. 422, 428 (1982).

The Petitioner has been deprived of property within

the meaning of the Due Process Clause of the Fourteenth

Amendment since the "substance over form" analysis

conducted in the court below did not comply with due

process of law guarantees The Petitioner was denied notice

12

of when she could timely file her notice of appeal, and

‘thereby deprived of the opportunity to appeal.

After finding that the deprivation of a protected

interest has taken place, this Court will "look to see if the

state's procedures comport with due _ process."

Manufacturers Mut. Ins. Co., et al. v. Sullivan, 526 U.S. 40,

59 (1999).

This Court has previously held that a state cannot

apply its procedural rules to preclude a fair hearing of a

federal claim in circumstances where these state rules fail to

provide adequate notice to the party. Mullane v. Central

Hanover Bank & Trust Co., et al., 339 U.S. 306 (1950).

The same analysis must apply even if the underlying

claim is a state law claim because it is the same theory, that

is that the Petitioner had a cause of action created by state

law that is a kind of property interest protected by the Due

Process Clause, and the state holds out the rules of procedure

of how to process an appeal. Board of Regents of State

Colleges, et al. v. Roth, 408 U.S. 564, 577 (1972).

In this case, the Petitioner followed the state's rules of

procedure in processing her appeal. However, the state

resorted to a substance over form analysis that, in effect,

suspended the operation of the civil rules of procedure when

deciding not to treat the Respondents’ motion as remittitur.

On that basis the state denied Petitioner's notice of appeal as

untimely. (App. 2a-7a).

In the analogous case of Goodman v. Lukins Steel

Co., et al., the opportunity to bring a lawsuit had been

unfairly lost by the petitioners. This Court considered the

constitutionality of a retroactive change in the statute of

limitations, and concluded that a two year statute of

limitations could be retroactively applied since there was no

clear precedent on which petitioners could have relied when

they filed their complaint. 482 U.S. 656, 657 (1987).

Likewise, the Petitioner unfairly lost the opportunity

to timely file her notice of appeal when she relied on the

13

remittitur language of the Respondents. The Petitioner was

not given fair warning of notice that the tolling rule would

not apply. Ohio's substance over form standard is unclear

and inconsistently followed, so it failed to provide notice,

and the requirements of due process were violated.

Connecticut, et al. v. Doehr, 501 U.S. 1, 18 (1991).

Because the Petitioner's cause of action counts as a

species of property she was deprived of property within the

meaning of the Due Process Clause. Logan v. Zimmerman

Brush Co., et al., 455 U.S. 422, 423 (1982).

Finally, this case raises the general issue of due

process guarantees since the Petitioner suspects that there are

other individuals, similarly situated, for whom statutory rules

are applied or misapplied in ways that affect their interests

that are antithetical to the Due Process Clause. U.S. CONST.

amend. XIV, § 1.

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the entry of the Supreme Court of Ohio.

Respectfully submitted,

Fred Austin Culver

239 Maryland, N.E.

Warren, Ohio 44483

(330) 394-6711

Counsel of Record

Lois L. Miller

401 Hawthorne Trail

Cortland, Ohio 44410

(330) 637-5438

APPENDIX

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APPENDIX A

The Supreme Court of Ohio

: FILED

SEP 05 2001

Marcia J. Mengel, Clerk

Supreme Court of Ohio

Deborah S. Palac, : Case No. 01-1040

Appellant,

v. ENTRY

Gary R. Smith, et al., :

Appellees.

Upon consideration of the jurisdictional memoranda

filed in this case, the Court declines jurisdiction to hear the

case and dismisses the appeal as not involving any

substantial constitutional question.

COSTS:

Docket Fee, $40.00, paid by Lois L. Miller, Esq.

(Trumbull County Court of Appeals; No. 2000T0147)

/s/ Thomas J. Moyer

THOMAS J. MOYER

[SEAL] Chief Justice

2a

APPENDIX B

COURT OF APPEALS

ELEVENTH DISTRICT

TRUMBULL COUNTY, OHIO

FILED

Court of Appeals

APR 23 2001

~ Trumbull County, Ohio

Margaret R. O'Brien, Clerk

| JUDGES

Deborah S. Palac, HON. DONALD R. FORD, P.J.,

HON JUDITH A. CHRISTLEY, J.,

Plaintiff-Appellant, HON. DIANE V. GRENDELL, J.

-vs-

Gary R. Smith, et al., CASE NO. 2000-T-0147

Defendants-Appellees)5 MEMORANDUM OPINION

CHARACTER OF PROCEEDINGS: Civil Appeal from the

Court of Common Pleas

Case No. 96 CV 1233

JUDGMENT: Appeal dismissed.

Atty. Lois L. Miller Atty. William J. Meola

401 Hawthorne Trail 155 South Park Avenue, #130

Cortland, OH 44410 Warren, OH 44481-1055

(For Plaintiff-Appellant) (For Defendants-Appellees)

3a

GRENDELL, J.

The above-captioned case comes before this court to

address appellees’ motion to dismiss appellant's appeal of the

May 5, 2000 judgment by the Trumbull County Court of

Common Pleas. The following circumstances are relevant

for our determination of this motion.

On Mz; 5, 2000, a judgment on the verdict was filed

in favor of Deborah S. Palac ("appellant"), against

defendants, Gary R. Smith and Precision-Electric

("appellees"). Appellant was awarded the sum of $75,000,

arising out of a complex civil litigation involving personal

injury resulting from an automobile accident.

On May 19, 2000, appellees filed a "Motion for

Credit Against Jury Verdict or for Remittur" [sic]. Appellees

moved the court for a credit of $2,000 against the $75,000

general verdict. Appellees asserted that a $2,000 payment

was made prior to trial by appellees’ insurance carrier to

Westfield Insurance Company ("Westfield"). This payment

satisfied a subrogation claim by Westfield regarding medical

benefits payments that were made to appellant after the

automobile accident. An agreement was entered into

between counsel for both sides by which the satisfaction of

the claim would result in a $2,000 credit against any jury

verdict that would be awarded to appellant after trial.

Attached to appellees’ motion were two letters, which

reflected this agreement, a copy of a general release signed

by Westfield absolving appellees from any claims and

liabilities arising out of the automobile accident, and a copy

of a check issued to Westfield.

On July 13, 2000, appellant filed an "Opposition to

Defendants' Motion for Remittitur; Plaintiffs Motion for

4a

Additur or New Trial Solely on the Issue of Damages as an

Alternative to Defendant's [sic] Motion for Remittitur."!

On October 31, 2000, a judgment entry was filed by

the trial court denying appellant's motion because it was

untimely filed and presented no evidence to justify additur or

a new trial. However, the trial court granted appellees’

motion. Specifically, the court found that an agreement was

entered into between counsel for both sides concerning a

$2,000 credit against the verdict. In this judgment entry, the

trial court described appellees' motion as a "Motion for

Credit Against the Jury's Verdict."

On November 30, 2000, appellant filed a notice of

appeal with this court appealing the judgment entries of May

5, 2000 and October 31, 2000. On January 18, 2001,

appellees filed a motion to dismiss appellant's appeal as to

the May 5, 2000 judgment entry because it was not filed

within the thirty-day requirement. Appellees contend that

appellant's time to appeal the May 5, 2000 judgment entry

was not extended by her motion for a new trial or additur

because that motion was also untimely filed.

In response, appellant submitted a memorandum

opposing the motion to dismiss. Appellant maintains that

her appeal time for the May 5, 2000 judgment entry did not

commence until after the trial court's October 31, 2000

judgment entry, which disposed of the parties' motions.

Appellant claims that appellees' motion for remittitur,

pursuant to Civ. R. 59, tolled the time to appeal until October

31, 2000 when the trial court ruled on that motion.

In rebuttal, appellees submitted a brief asserting that

their motion was not a request for remittitur even though the

' Civ. R. 59(B) requires a motion for new trial or additur to be filed

within fourteen (14) days of the judgment.

Sa

word was used in the caption. Rather, appellees assert that

the substance of their motion did not use the word

"remittitur"; rather, it was directed solely to requesting the

trial court to grant the $2,000 credit against verdict pursuant

to the prior agreement of the parties.

App. R. (4)(A) establishes a thirty-day deadline for

filing a notice of appeal. Nevertheless, App. R. 4(B)(2)

allows for the tolling of the time to file a notice of appeal

when a party files a timely motion pursuant to Civ. R. 59.

Civ. R. 59(B) provides that "[a] motion for new trial shall be

served no later than fourteen days after the entry of the

judgment." Remittitur and additur are special motions for a

new trial on the issue of damages. Providing the prevailing

party at trial consents, a trial court may grant a remittitur,

which reduces the verdict to an amount warranted by the

evidence, when the court finds that a verdict is excessive, but

not influenced by passion or prejudice. Moskovitz v. Mt.

Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 654.

In addition, when determining the underlying reason

for a motion submitted to a trial court, this court and other

appellate districts have looked to the substance or "true

nature” of the motion, rather than, the form and caption of

the motion as the controlling factor. Chester Twp. v.

Fraternal Order of Police (1995), 102 Ohio App.3d 404,

407; White v. Wong (July 22, 1998), Scioto App. No. 97 CA

2552, unreported; Peterson v. Peterson (Apr. 6, 1998),

Butler App. No. CA97-09-169, unreported; Magee v.

Aluminum Co. of America (Sept. 22, 1988), Cuyahoga App.

No. 54184, unreported.

In the case sub judice, appellees filed a post-

judgment motion captioned "Motion for Credit Against Jury

Verdict or for Remittur” [sic]. However, upon close

examination of appellees’ motion and the attached letters of

6a

counsel by both sides, we conclude that the "true nature" of

appellees' motion was purely a motion moving the trial court

to grant a credit of $2,000 as agreed prior to trial. Similarly,

the October 31, 2000 judgment entry of the trial court

referenced appellees' motion as "Defendants' Motion for

Credit Against the Jury's Verdict." Additionally, the trial

court properly denied appellant's July 13, 2000 motion for

additur or new trial on the grounds that it was untimely filed

pursuant to Civ. R. 59(B).

Accordingly, pursuant to App. R. 4(A), appellant

failed to file a timely notice of appeal with this court

appealing the May 5, 2000 judgment. Appellant's notice was

filed on November 30, 2000. Hence, appellees’ motion to

dismiss appellant's May 5, 2000 appeal is hereby granted.

Appeal dismissed.

/s/ Diane V. Grendell

JUDGE DIANE V. GRENDELL

FOR THE COURT

FORD, P.J.,

CHRISTLEY, J., concur.

FILED

Court of Appeals

APR 23 2001

Trumbull County, Ohio

Margaret R. O'Brien, Clerk

7a

APPENDIX C

State of Ohio ) IN THE COURT OF APPEALS

)SS

County of Trumbull ) ELEVENTH DISTRICT .

Deborah S. Palac,

Plaintiff-Appellant, JUDGMENT ENTRY

-VS- CASE NO. 2000-T-0147

GARY R. SMITH, et al.,

Defendants-Appellees.

For the reasons stated in the Memorandum Opinion

of this Court; it is ordered that Appellees’ motion to dismiss

is hereby granted and the appeal is hereby dismissed.

Pursuant to this judgment entry, any pending motions

are hereby overruled as moot.

/s/ Diane V. Grendell

JUDGE DIANE V. GRENDELL

FOR THE COURT

FILED

Court of Appeals

APR 23 2001

Trumbull County, Ohio

Margaret R. O'Brien, Clerk

APPENDIX D

IN THE COURT OF COMMON PLEAS

TRUMBULL COUNTY, OHIO

FILED

OCT 31 2000

Margaret R. O'Brien

Clerk of Courts

Trumbull County

Deborah S. Palac, ) Case No. 1996-CV-1233

Plaintiff, )

VS. ) JUDGE JOHN M. STUARD

Gary R. Smith, et al., )

Defendant. ) JUDGMENT ENTRY

This matter is before this Court on Plaintiff's Motion

for New Trial and/or Additur and Defendants’ Motion for

Credit Against the Jury's Verdict.

Plaintiff's motion is not timely filed and otherwise

has presented no evidence to justify an additur or basis for

new trial. Plaintiff's Motion is therefore denied.

As to the two thousand dollar reduction or credit

against the verdict Defendants’ request in their Motion, this

court finds that Attorney White did enter into such an

agreement and the motion is granted.

Case is concluded.

/s/ John M.

JUDGE JOHN M. STUARD

10-30-00

Date