Courtney v. Sosbe

• Decision Date: 28 March 1996
• Docket Number: No. CVE-93-13029,CVE-93-13029
• Citation: 670 N.E.2d 1092,79 Ohio Misc.2d 50
• Parties: State Farm Insurance Company et al. v. SOSBE. * Toledo Municipal Court, Ohio
• Court: Ohio Court of Common Pleas

Page 50

79 Ohio Misc.2d 50

670 N.E.2d 1092

COURTNEY; State Farm Insurance Company et al. v. SOSBE. ^*

No. CVE-93-13029.

Toledo Municipal Court, Ohio.

Decided March 28, 1996.

Gary F. Kuns, Maumee, for plaintiff State Farm Insurance Company et al.

Vijay K. Puligandla, Toledo, for defendant James Sosbe, Jr.

THOMAS J. OSOWIK, Judge.

The court finds that this matter came on for determination of the defendant's motion to vacate a default judgment rendered against him on May 24, 1994.

On December 1, 1995, the defendant filed a motion to vacate this default judgment.

Pursuant to Civ.R. 55(B), default judgments may be set aside in accordance with Civ.R. 60(B).

Civ.R. 60 governs the procedure to be followed when a party seeks to vacate a judgment. That rule states as follows:

"(A) Clerical mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

"(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."

"To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken." GTE Automatic Elec. Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, at paragraph two of the syllabus.

In the case before the court, the evidence adduced at hearing and exhibits attached and memorandum in support filed by the defendant establishes that the original complaint was filed on August 26, 1993, and the defendant personally signed for the certified mail receipt indicating service of the summons. The defendant was in the United States Army and was on leave when he received the summons. No action was taken on the part of the defendant to respond to this complaint.

Sometime on April 28, 1995, at or near the date of his discharge from the United States Army, he discovered that his driver's license was under a security suspension as a result of the default judgment.

The defendant moves the court to vacate the judgment, relying upon Section 510, Title 50 App., U.S.Code, the Soldiers' and Sailors' Civil Relief Act of 1940.

The court further finds that the defendant alleges that he has a meritorious defense in that he was not operating the vehicle involved in this collision, which is the basis of the underlying cause of action.

Section 510, Title 50 App., U.S.Code states:

"In order to provide for, strengthen, and expedite the national defense under the emergent conditions which are threatening the peace and security of the United States and to enable the United States the more successfully to fulfill the requirements of the national defense, provision is made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period herein specified over which this Act [sections 501 to 591 of this Appendix] remains in force."

Proceedings may be stayed under Section 521, which provides:

"At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act [sections 501 to 591 of this Appendix], unless, in the opinion of the court, the ability of ...