Adomeit v. Baltimore

• Decision Date: 11 April 1974
• Citation: 316 N.E.2d 469,39 Ohio App.2d 97,68 O.O.2d 251
• Parties: , 68 O.O.2d 251 ADOMEIT, Appellee, v. BALTIMORE et al., Appellants.
• Court: Ohio Court of Appeals

Page 97

39 Ohio App.2d 97

316 N.E.2d 469, 68 O.O.2d 251

ADOMEIT, Appellee, v. BALTIMORE et al., Appellants.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 11, 1974.

Syllabus by the Court

1. Civil Rule 60(B) applies to relief from all judgments, including cognovit judgments (R.C. 2323.12 and 2323.13); default judgments (Civil Rule 55); summary judgments (Civil Rule 56); and judgments after trial (Civil Rule 58).

2. In order to obtain relief under Civil Rule 60(B), the movant must file a motion as provided for in Civil Rule 7(B). He must also file a brief or memorandum of fact and law, and affidavits, depositions, answers to interrogatories, exhibits and any other relevant material. The material submitted must contain operative facts which demonstrate:

(1) Timeliness of the motion.

The motion must be filed within a reasonable time and for reasons stated in Civil Rule 60(B)(1), (2) and (3) not more than one year after the judgment order or proceeding was entered or taken.

(2) Reasons for seeking relief.

Operative facts which will demonstrate that the party is entitled to relief under one of the grounds stated in Civil Rule 60(B)(1) through (5).

(3) Defense.

3. A person filing a motion for relief from judgment under Civil Rule 60(B) is not automatically entitled to such relief nor to a hearing on the motion. The movant has the burden of proving that he is entitled to the relief requested or to a hearing on the motion. It is discretionary with the trial court whether the motion will be granted and in the absence of a clear showing of abuse of discretion the decision of the trial court will not be disturbed on appeal.

4. If the material submitted by the movant in support of a motion for relief from judgment under Civil Rule 60(B) contains no operative facts or meager and limited facts and conclusions of law, it will not be an abuse of discretion for the trial court to overrule the motion and refuse to grant a hearing.

If the movant files a motion for relief from judgment and it contains allegations of operative facts which would warrant relief under Civil Rule 60(B), the trial court may grant a hearing to take evidence and verify the facts before it rules on the motion. This is proper and is not an abuse of discretion. If, under the foregoing circumstances, the trial court does not grant a hearing and overrules the motion without first affording an opportunity to the movant to present evidence in support of the motion, its failure to grant a hearing is an abuse of discretion.

Lawrence E. Stewart. Cleveland. for appellee.

Schulman & Schulman, Cleveland, for appellant.

KRENZLER, Judge.

On June 29, 1971 plaintiff filed a complaint against defendants, Oscar Baltimore, Circle Parking, Inc., John Doe Construction Company, and the City of Cleveland, alleging that she was a pedestrian on the public sidewalk in front of a business known as Circle Parking, 2035 E. 102 Street, Cleveland, Ohio, which was owned and managed and operated by defendant, Oscar Baltimore, and that she was injured because of a defect in the sidewalk which was negligently and carelessly caused and allowed to exist by the defendants. She further alleges that as a direct and proximate result of the negligence, she was injured and damaged and is seeking $30,000.

The City of Cleveland filed an answer denying liability and filed a cross complaint alleging that if plaintiff sustained any damages, they were as a direct result of the negligence of Oscar Baltimore, Circle Parking, Inc., and John Doe Construction Company. The City of Cleveland also filed a third-party complaint against DeeKay Realty Company alleging that it is the adjoining property owner in the area where the plaintiff was injured and it had knowledge of the existence of the defective sidewalk and driveway and failed to correct the defect, and if the City of Cleveland is held liable, it has a right to indemnity from the third-party defendant whose negligence was the proximate cause of plaintiff's injury.

The plaintiff filed an amended complaint against Dellarisco Baltimore, ¹ Circle Parking, John Doe Construction Co., the City of Cleveland and DeeKay Realty Co. The City of Cleveland filed an answer to the amended complaint.

The DeeKay Realty Company, defendant, filed an answer denying liability and alleged assumption of risk and contributory negligence as affirmative defenses.

All of the defendants were served with the complaint and the amended complaint.

On May 17, 1972 plaintiff moved for default judgment under Civil Rule 55 against Dellarisco Baltimore, Circle Parking, Inc., and DeeKay Realty in the sum of $30,000.

The trial court after hearing entered a default judgment on July 20, 1972 in the amount of $1,500 for the plaintiff against Dellarisco Baltimore and Circle Parking, Inc. only for failure to plead or appear in the instant action.

Defendants Dellarisco Baltimore and Circle Parking, Inc. moved to vacate the default judgment on December 5, 1972. Attached to the motion was an affidavit of Dellarisco Baltimore alleging that she and Circle Parking, Inc. did not enter an appearance or defend because she was under the impression that the insurance company which represents the owner of the subject property was defending not only the owner but also their interests. The affiant states that she was so advised by one of the owners of the property. She also alleged a defense to the action. She further contends that it will not prejudice the plaintiff if the judgment is vacated.

Plaintiff filed a brief in opposition to the motion to vacate, alleging that the motion for default judgment was filed on May 17, 1972, and a hearing was held on the motion on June 27, 1972, at which time evidence was introduced as to the facts of the occurrence and the amount of the damage plaintiff incurred, and that default judgment was entered on July 20, 1972 in the amount of $1,500. Plaintiff alleges that over one year elapsed between the time plaintiff's original complaint was filed and the default judgment was journalized, and that the motion for relief from judgment was filed five months after the judgment was entered. Plaintiff alleges that the defendants deliberately, willfully and wantonly disregarded the judicial process and the judgment should not be vacated, and that the affidavit submitted by the defendant is not an affidavit of fact, but rather conclusions of law and is of no merit.

The trial court did not have a hearing and denied the defendants' motion to vacate the judgment. A motion for reconsideration was also filed and it was denied.

Defendants appellants have two assignments of error:

1. The trial court erred and abused its discretion in refusing to grant the defendants' motion to vacate.

2. The trial court erred in refusing to hold a hearing upon the defendants' motion to vacate.

Throughout the history of litigation various rules were developed by court decisions, court rules and legislation dealing with cognovit judgments, default judgments, summary judgments and judgments after trial.

One of the principal rules is that there should be finality in every case, and that once a judgment is entered it should not be disturbed. Application on this rule resulted in a certain amount of unfairness and injustice. This necessitated adoption of other rules which are exceptions to the 'finality of judgment rule.' One of these exceptions is that in the interest of fairness and justice, given the proper circumstances, judgments can be vacated and set aside so that a person may have his day in court.

In Ohio prior to the adoption of the Civil Rules on July 1, 1970, rules regarding vacation of judgment were incorporated into various statutes, Chap. 2325 R.C. On July 1, 1970, Ohio adopted the Rules of Civil Procedure which superseded the foregoing statutes. The Ohio Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, which were adopted in 1938 and amended several times.

The Ohio Rule dealing with relief from judgment is Civil Rule 60(B), which is as follows:

(B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. 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; (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.

The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules.

It is noted that Civil Rule 60(B) applies to the vacation of all judgments, and therefore includes cognovit judgments (R.C. 2323.12 and 2323.13); default judgments (Civil Rule 55); summary judgments (Civil Rule 56) and judgments after trial (Civil Rule 58). But in this case we are only concerned with a motion for vacation of a default judgment.

Ohio has few reported cases dealing with Civil Rule 60(B) and most of them deal more with its substantive aspects such as what facts constitute grounds for relief under Civil Rule 60(B)(1) through (5). Brenner v. Shore (1973), 34 Ohio App.2d 209, 297 N.E.2d 550; Cautela v. McFadden (1972), 32 Ohio App.2d...