Old Phoenix Nat. Bank v. Sandler

Decision Date11 January 1984
Citation14 Ohio App.3d 12,469 N.E.2d 943
Parties, 14 O.B.R. 15 OLD PHOENIX NATIONAL BANK, Appellant, v. SANDLER, Appellee.
CourtOhio Court of Appeals

Syllabus by the Court

Relief from judgment under Civ.R. 60(B)(4) must be warranted by events occurring subsequent to the entry of the judgment in question, i.e., events occurring prior to the entry of the judgment cannot be relied upon as a grounds to vacate the judgment pursuant to Civ.R. 60(B)(4); however, events occurring prior to the entry of the judgment may be the basis for vacating the judgment under some other section of Civ.R. 60(B).

James A. Amodio, Cleveland, for appellant Old Phoenix Natl. Bank.

Matthew Fortado, Akron, for appellee Marian Sandler.

BAIRD, Judge.

On October 31, 1978, defendant's husband borrowed $5,000 from plaintiff. This amount was not repaid, and plaintiff obtained a judgment against Mr. Sandler in Medina Municipal Court. On July 25, 1979, plaintiff instituted this action in the Court of Common Pleas of Medina County against defendant to recover on her guarantee of the debt. Defendant was served by certified mail on July 28, 1979. Defendant failed to answer, and on October 24, 1979, the court granted plaintiff a default judgment. On April 5, 1983, defendant moved to vacate that judgment, and the court granted defendant's motion on June 13, 1983. Plaintiff appeals.

Assignments of Error

"1. The trial court committed an abuse of discretion, and therefore erred, in vacating its judgment rendered October 24, 1979, in favor of plaintiff-appellant Old Phoenix National Bank, for the reason that defendant-appellee Marian Sandler has not shown a right to relief under Civil Rule 60(B)(4), the stated basis for the trial court's decision, or under any other provision of Civil Rule 60(B).

"2. The trial court committed an abuse of discretion, and therefore erred, in vacating its judgment rendered October 24, 1979, in favor of plaintiff-appellant Old Phoenix National Bank, for the reason that defendant-appellee Marian Sandler's motion to vacate was not brought within a 'reasonable time' as required by Civil Rule 60(B)."

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 Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113 , paragraph two of the syllabus.

The trial court found defendant presented no evidence which would entitle her to relief under Civ.R. 60(B)(5), but concluded that defendant was entitled to relief under Civ.R. 60(B)(4) which provides that a judgment may be vacated when:

"* * * 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; * * *."

Defendant's claim is that plaintiff obtained its judgment on a guarantee which did not extend to the debt in question, but instead guaranteed a debt which was paid in 1977. Civ.R. 60(B)(4) offers relief from judgments which have been satisfied or which have become inequitable. In any case, relief under Civ.R. 60(B)(4) must be warranted by events subsequent to judgment. See Wurzelbacher v. Kroeger (1974), 40 Ohio St.2d 90, 320 N.E.2d...

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28 cases
  • Alexander v. Alexander
    • United States
    • Ohio Court of Appeals
    • 4 Junio 1985
    ...In the instant case, the provisions of Civ.R. 60(B)(4) specifically apply as set forth in the syllabus of Old Phoenix Natl. Bank v. Sandler (1984), 14 Ohio App.3d 12, 469 N.E.2d 943: "Relief from judgment under Civ.R. 60(B)(4) must be warranted by events occurring subsequent to the entry of......
  • L. Dale Coad v. Diane v. Coad
    • United States
    • Ohio Court of Appeals
    • 31 Mayo 1985
    ... ... equitable division of certain bank accounts valued at ... approximately Five Thousand Dollars ... See, also, Old ... Phoenix Natl. Bank v. Sandler (1984), 14 Ohio ... App. 3d 12, syllabus ... ...
  • Verna Mae Henderson v. James Lee Henderson
    • United States
    • Ohio Court of Appeals
    • 22 Marzo 1990
    ... ... see also Old Phoenix Nat'l. Bank v. Sandler ... (1983), 14 Ohio App.3d 12, 469 N.E.2d ... ...
  • Kossoudji v. Stamps
    • United States
    • Ohio Court of Appeals
    • 10 Noviembre 2016
    ...v. Ned Peppers, Inc., 2d Dist. Montgomery No. 26180, 2014-Ohio-5169, 2014 WL 6601991, ¶ 19, citing Old Phoenix Nat. Bank v. Sandler, 14 Ohio App.3d 12, 13, 469 N.E.2d 943 (9th Dist.1984).{¶ 37} The case on which Sandler relied for this proposition is Wurzelbacher v. Kroeger, 40 Ohio St.2d 9......
  • Request a trial to view additional results

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