Walton v. Magno

Opinion

GRIGNON, J.

Defendant and appellant Philip L. Magno appeals from an order granting a motion for judgment notwithstanding the verdict brought by plaintiffs and respondents Cumie L. Walton and Neda S. Walton after a jury verdict in favor of Magno on the issue of liability. The trial court ordered a trial on the issue of damages. We conclude the appeal is tajken from a

[1239]

nonappealable order and there is no final judgment. Accordingly, we dismiss.

Procedural Background

Plaintiffs filed an action against defendant for malicious prosecution arising out of an action for fraud brought by defendant against plaintiffs, which fraud action had terminated in plaintiffs’ favor. The malicious prosecution action proceeded to trial before a jury. The trial court found defendant had not acted with probable cause in filing the underlying action. The matter was then submitted to the jury on the issues of malice, compensatory damages and punitive damages. On July 13,1992, the jury returned a special verdict finding defendant had not acted with malice in filing the underlying action. Judgment on the special verdict was entered in favor of defendant on that same date. On July 28, 1992, plaintiffs brought a motion for judgment notwithstanding the verdict. This motion was granted on August 11, 1992, and the trial court ordered a trial on the issue of damages. On August 17, 1992, plaintiffs served a notice of ruling that the motion for judgment notwithstanding the verdict had been granted. On October 6,1992, defendant appealed from the order “granting [plaintiffs’] Motion for Judgment Notwithstanding the Verdict.”

1

Discussion

After reviewing the record, we asked the parties to submit letter briefs addressing whether the appeal was brought from an appealable order or final judgment. The parties filed the requested letter briefs. We conclude there is no appealable order or final judgment and the appeal must be dismissed.

After a jury trial, the clerk must enter a judgment in conformity with the verdict within 24 hours of rendition of the verdict. (Code Civ. Proc., § 664.) This is so whether or not a motion for judgment notwithstanding the verdict is pending.