Moore v. Emmanuel Family Training Center, Inc.

• Decision Date: 26 June 1985
• Docket Number: 84-1196,Nos. 84-752,s. 84-752
• Citation: 18 Ohio St.3d 64,479 N.E.2d 879,18 OBR 96
• Parties: , 18 O.B.R. 96 MOORE, Guardian, Appellant, v. EMMANUEL FAMILY TRAINING CENTER, INC., d.b.a. Emmanuel Care Center, Appellee. COLOMA FROZEN FOODS, INC., Appellant, v. TJL ENTERPRISES, INC. et al., Appellees.
• Court: Ohio Supreme Court

Page 64

18 Ohio St.3d 64

479 N.E.2d 879, 18 O.B.R. 96

MOORE, Guardian, Appellant, v. EMMANUEL FAMILY TRAINING CENTER, INC., d.b.a. Emmanuel Care Center, Appellee.

COLOMA FROZEN FOODS, INC., Appellant, v. TJL ENTERPRISES, INC. et al., Appellees.

Nos. 84-752, 84-1196.

Supreme Court of Ohio.

June 26, 1985.

In case No. 84-752 appellant, Gladys Moore, guardian for Gladys Whittington, filed suit on behalf of her ward against, among others, appellee, Emmanuel Family Training Center, Inc., d.b.a. Emmanuel Care Center. Appellant's original complaint alleged that her mother-ward was attacked, beaten and raped while residing in the care of the center because of appellee's failure to provide reasonable care. Following a pretrial conference, the trial court issued two orders. One ordered appellant to effectuate joinder of other defendants within twenty-one days. A copy of the joinder order was mailed to appellant. Upon receipt, appellant promptly complied by joining the other defendants. The second order, though issued on the same day, was never mailed to appellant. This order called on appellant to identify expert witnesses for the purpose of taking depositions. Unaware of this order, appellant failed to identify the experts within twenty-one days which resulted in appellee's filing a motion to dismiss for failure to comply with a court order. Appellant opposed the motion contending her counsel did not receive notice of the discovery order and that she had previously provided a list of all her potential witnesses to appellee.

There were several motions for dismissal and summary judgment pending at this time which had been filed by various parties to the suit. The trial court granted appellee's motion and dismissed the complaint on the grounds that appellant had willfully failed to comply with a court order. A post-card notice was sent to appellant that the court had granted a pending motion to dismiss but did not identify which motion had been granted. Not knowing which of the several motions had been granted, appellant's counsel presented the post-card notice to the clerk of courts office which advised that a different pending motion had been granted dismissing another defendant from the suit.

Appellant did not wish to contest the other defendant's dismissal and mistakenly thought the action against appellee was still pending. Hence, a direct appeal was not filed.

Upon later discovering that the entire action had been dismissed, appellant filed a Civ.R. 60 motion for relief from judgment and also requested an oral hearing. The court overruled the motion without hearing. (A hearing date was apparently set but appellant's notices of same said "pretrial" and appellant did not attend believing the defective notice had been sent in error as the only pretrial scheduled had been canceled.) Appellant appealed the trial court's ruling on the motion for relief and the court of appeals affirmed.

Appellant contends that the trial court erred in dismissing her suit and abused its discretion in denying the motion for relief from judgment. Appellant argues she never received actual notice or had knowledge of the court's discovery order. Appellant asserts that such a scenario establishes mistake or excusable neglect but does not support a finding of willful violation of the court's order.

In case No. 84-1196 appellant, Coloma Frozen Foods, Inc., sued appellees, TJL Enterprises, Inc. et al., to collect money due on account. Following a number of filings and motions, a pretrial conference was scheduled. A week prior to the conference, appellant filed a motion for continuance which was agreed to by opposing counsel. Appellant was instructed by the court's scheduler to file the motion and was informed that counsel would receive notice of the new date.

The trial judge was unaware of these events and had not granted the motion. At the still scheduled pretrial the judge sua sponte dismissed the suit based on appellant's nonappearance. Appellant was not served notice by the court of its intended dismissal nor did counsel receive post-dismissal notice of the order.

Unaware of the dismissal and never having received notice of a new pretrial date, appellant contacted the court and discovered the dismissal order. Appellant filed a timely motion to vacate judgment pursuant to Civ.R. 60(B) which was not opposed by appellees. Appellant's motion was overruled as was a subsequent supplemental motion to vacate. The court of appeals affirmed.

Appellant asserts that, under the circumstances, it was excusable neglect not to attend the pretrial. Counsel filed a proper motion agreed to by opposing counsel and relied on representations by a court official that he would receive notice of a new date. Appellant contends that the court failed to comply with the Rules of Civil Procedure in dismissing the case without prior notice to appellant and abused its discretion by overruling the unopposed motion to vacate, thus violating due process guarantees.

The causes are now before this court pursuant to the allowance of motions to certify the records.

Nicholas M. DeVito & Assoc., Nicholas M. DeVito and Ellen H. Murray, Cleveland, for appellant in case No. 84-752.

Willacy & LoPresti and Aubrey B. Willacy, Cleveland, for appellee in case No. 84-752.

Schmelzer & Goren, Michael Goren, Thomas Schmelzer and Douglas Solomon, Cleveland, for appellant in case No. 84-1196.

PER CURIAM.

The court of appeals found that both appellants had alleged meritorious claims and that their motions were made within a reasonable time. However, the court held that appellants had failed to demonstrate that they were entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5). Specifically, appellants allege, but the appellate court did not find, excusable neglect.

Accordingly, the primary question presented by these appeals is whether the trial courts' erred in overruling appellants' Civ.R. 60(B) motions for relief premised on excusable neglect.

The issue to be decided on an appeal from the denial of a Civ.R. 60 motion for relief from judgment is whether the trial court abused its discretionary authority provided by the rule. State, ex rel. Freeman, v. Kraft (1980), 61 Ohio St.2d 284, 400 N.E.2d 1357 . Although a court is granted discretion, it " * * * is not unbridled." Doddridge v. Fitzpatrick (1978), 53 Ohio St.2d 9, at 12, 371 N.E.2d 214 .

Civ.R. 60(B) provides in relevant part:

"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; * * *."

In GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113 , this court held at paragraph two of the syllabus:

"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."

As we recently reiterated in Argo Plastic Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 474 N.E.2d 328, to prevail on a motion brought under Civ.R. 60(B), a trial court must determine whether the movant has demonstrated " ' * * * (1) the existence of a meritorious defense or claim, (2) entitlement to relief under one of the grounds set forth in the rule, and (3) that the motion is made within a reasonable time.' Should any prong of the standard for granting motions brought under Civ.R. 60(B) be unsatisfied, relief shall be denied." See, also, Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, at 351, 453 N.E.2d 648.

In the cases sub judice the court of appeals reviewed the three prongs of the GTE-Argo test and applied them to the cases before it. Under Civ.R. 60(B), a movant's burden is only to allege a meritorious claim, not to prevail on the merits of the claims. Colley v. Bazell (1980), 64 Ohio St.2d 243, at 247, fn. 3, 416 N.E.2d 605 . In both cases the appellate court correctly found that the appellants had alleged meritorious claims of negligence which would be presented if relief was granted. Thus the first requirement of GTE is met.

The third element of GTE is that the motion be made within a reasonable time. Again, we agree with the appellate courts' findings that under the circumstances the motions herein were timely filed.

The second element of GTE provides that the moving party must demonstrate he is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5). ¹ At issue in the cases before us is whether appellants demonstrate they were entitled to relief for the reasons of mistake, inadvertence or excusable neglect. For the following reasons, we hold that both trial courts abused their discretion and should have granted the relief from judgment requested by appellants. ²

Case No. 84-752

The appellate court herein stated that lack of individual notice of a properly journalized discovery order was not sufficient grounds on which to afford Civ.R. 60(B) relief for excusable neglect. We disagree and find that appellant Moore has set forth sufficient operative facts to warrant relief for mistake or excusable neglect under Civ.R. 60(B)(1).

"As a general rule, the neglect of a party's attorney will be imputed to the party for the purposes of Civ.R. 60(B)(1)." GTE, supra, paragraph four of the syllabus. As we observed in Argo, supra, 15 Ohio St.3d at 392, 474 N.E.2d 328, " * * * the conduct of counsel is imputed to his client." However the attorney's conduct in Argo is distinguishable as it constituted active misconduct between a client and his counsel which the trial court correctly determined...