Antonopoulos v. Eisner

• Decision Date: 08 June 1972
• Citation: 284 N.E.2d 194,30 Ohio App.2d 187
• Parties: , 59 O.O.2d 309 ANTONOPOULOS, Appellee, v. EISNER, Appellant.
• Court: Ohio Court of Appeals

Page 187

30 Ohio App.2d 187

284 N.E.2d 194, 59 O.O.2d 309

ANTONOPOULOS, Appellee, v. EISNER, Appellant.

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

June 8, 1972.

Syllabus by the Court

1. Where relief is sought in the trial court from a judgment not void for want of jurisdiction, Rule 60 of the Ohio Rules of Civil Procedure provides an exclusive remedy, and relief must be sought under Rule 60 whether the motion is made during term, or not. (Civil Rule 60 construed in light of Civil Rule 6(C).)

2. Rule 60(B)(5) is a residuary provision meant to permit relief in the interest of justice, where relief would not be available under any other provision of Rule 60(B), but which may not be used as a substitute or any of those other provisions.

3. Rule 60(B)(1) empowers the court to grant relief if judgment is the result of the 'mistake, inadvertence, surprise or excusable neglect' of any person, including the party seeking relief, provided relief is sought within a reasonable time and within one year from the time judgment is taken. Within the technical meaning of the Rule, however, relief is precluded, in an otherwise proper case, only if the movant's personal inexcusable neglect was the efficient cause of the judgment taken. The inexcusable neglect, if any, of his agents is not to be imputed to him to preclude relief as a matter of law.

4. Rule 60(B) is to be construed and applied to effect just results, and when timely relief is sought from a default judgment, doubt, if any, should be resolved in favor of the motion so that cases may be decided on their merits.

Parks, Eisele, Lawrence & Bates, Cleveland, for appellee.

Weston, Hurd, Fallon, Sullivan & Paisley, Cleveland, for appellant.

SILBERT, Judge.

This is an appeal from a decision of the Court of Common Pleas, overruling defendant appellant's motion to vacate a $10,000 default judgment, taken upon her failure to answer or otherwise appear and defend. Plaintiff's claim is in tort, for negligence, to recover for injuries sustained in a parking lot collision between automobiles driven by the parties. The whole of her special damages came to approximately $500.

By the motion to vacate, as supported by briefs, affidavits, and testimony, the defendant contends that her failure to answer was due to excusable neglect, and that she has a good and adequate defense that she ought to be permitted to plead, there being good reason justifying relief from the judgment taken against her. She asserts that the accident resulted from the plaintiff's negligence, not from any negligence on her part. She denies that the plaintiff suffered injury, complaining, in the alternative, that any injury was comparatively minor and such a substantial judgment excessive under the circumstances. In turn, the plaintiff has neither alleged nor shown that she would suffer any special prejudice were the default set aside, apart, of course, from the trouble and expense which she incurred in obtaining and defending the judgment taken.

The defendant was served on Friday, November 13, 1970. Since her husband had prior experience with litigation in connection with his business affairs, and since she had none, she gave the summons and complaint to him. He testified that he telphoned her insurance agent the following week and then forwarded the papers to the agent, in Cincinnati, at the latter's request. Sometime later, Mr. Eisner again spoke with the agent by telephone, and was told that the papers had been received and were being sent to the insurance company. Mrs. Eisner testified that she thought the insurance company was going to do whatever was necessary in her defense.

Inexplicably, the papers were not received by the insurance company's east side (Cleveland) office until, or after, January 12, 1971, the date appearing on the Cincinnati postmark. On January 11th the default judgment had been received for journalization.

In due course the papers were forwarded to the insurer's litigation department which, after but a short delay, referred the matter to counsel. The docket was checked, the default discovered, and the motion to vacate prepared.

The trial court overruled the motion, stating that in its view:

'* * * in addition to forwarding the papers to the insurance agent or brokers, as the case might be, * * * the defendant also has an obligation to follow up and see what arrangements are being made by that agent.' (Emphasis added.)

The trial court did not question the credibility of any witness. Much of the testimony was substantially uncontroverted. Appellant has assigned but one error:

'The trial court committed prejudicial error and abused its discretion in failing to grant defendant's motion to vacate the default judgment as a matter of law.'

Specifically, she relies on Civil Rule 60(B), (1) and (5).

Civil Rule 55(B) provides that 'If a judgment by default has been entered, the court may set it aside in accordance with Rule 60(B).' Rule 60(B) reads, in part, as follows:

'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order of proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for (reason) (1) * * * not more than one year after the judgment, order of proceeding was entered or taken * * *.

'* * *.'

Save for minor stylistic differences and wholly inconsequential changes in enumeration, the five grounds for relief included within Rule 60(B) were taken nearly verbatim from Rule 60(b) of the Federal Rules of Civil Procedure. In addition to the two grounds just set out, relief is available if warranted by newly discovered evidence or as a result of the misconduct of an adverse party, or where a prior judgment, although not voidable of itself, should not be permitted to stand or given prospective application. Void judgments are expressly included among the grounds enumerated in the federal rule, but not in the Ohio rule, which also omits language (1) abolishing the writs of coram nobis, coram vobis, and audita querela, and the bills of review and bills in the nature of a bill of review, and (2) providing that the rule has no effect on the power of the courts to grant relief in an independent action in certain cases.

While appellee urges that we look to prior Ohio law in construing Rule 60(B), sensibly '* * * when a statute is adopted from another jurisdiction, in substantially the same language, the provisions so adopted * * * (should be) construed in the sense in which they were understood at the time in the jurisdiction from which they were taken.' Fiske v. Buder (C.C.A. 8, 1942), 125 F.2d 841, 844.

If an overview of prior Ohio law is useful, as background, it would be hazardous, at best, were the Civil Rules given a narrow construction, making them accord with former practice, and not treated as an effort to rectify the inadequacies of prior procedural law. Cf. Civil Rule 1(B) and the Staff Notes thereto.

Under prior Ohio practice, a court could vacate its final or interlocutory decisions during term, in the exercise of a sound legal discretion. First Natl. Bank of Dunkirk v. Smith (1921), 102 Ohio St. 120, 130 N.E. 502. Unless the judgment were void or might be attacked independently, in equity, a final order or judgment could be vacated after term only for one of the grounds listed in R.C. 2325.01. Grelle v. Humbel (Franklin Co., 1948), 84 Ohio App. 277, 181 N.E.2d 718. Cf., Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, 133 N.E.2d 606; Northern Ohio Power & Light Co. v. Smith (1933), 126 Ohio St. 601, 611, 186 N.E. 712.

Had the Civil Rules not been adopted, appellant's motion would have been determined under the Dunkirk rule. Nevertheless, Rule 60(B) is to be read in pari materia with Rule 6(C). Because '(t)he effect of Rule 6(c) * * * upon the power of the court over its civil judgments (is) substantially similar to the effect which the abolition of terms of court would have had * * *' (Moore's Federal Practice, supra, para. 6.09(2), p. 1500.113; Cf., Advisory Committee Notes (1946) and cases cited therein as illustrative), Rule 60(B) must be read as exclusive and, therefore, as effecting a significant liberalization of R.C. 2325.01, reflecting the broad power inherent during term under pre-rule practice.

Insofar as material, R.C. 2325.01 provided that:

'The court of common pleas * * * may vacate or modify its own final order, judgment, or decree after the term at which it was made;

'* * * '(C) For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order;

'* * *; (or)

'(G) For unavoidable casualty or misfortune, preventing the party from prosecuting or defending;

'* * *.'

As originally adopted, Federal Rule 60(b) provided that the court could 'relieve a party or his legal representative from a final judgment, order or proceeding (taken against him through his) mistake, inadvertence, surpise or excusable neglect' (emphasis added), and little more. Unlike R.C. 2325.01, this language clearly permitted relief, though judgment resulted from the movant's own neglect, provided his neglect were excusable. Cf., Andring v. Andring (Cuyahoga Co., 1965), 3 Ohio App.2d 417, 211 N.E.2d 59.

However, the very clarity of the original rule rendered it too limited in scope, leading to the view that it was merely cumulative, and not exclusive, allowing relief where the writs of coram nobis, coram vobis, audita querela, or bills of review or bills in the nature of the bill of review would lie. See discussion, Moore's Federal Practice, supra, Vol. 7, paragraph 60.13 et seq. and, in particular, paragraph 60.17 pp. 33 et seq. and 91, and cases cited therein. In redrafting the rule in 1946, abolishing the common law writs and chancery bills, and adding five additional...