Consolo v. Menter
2014 Ohio 1033
Ohio Ct. App.2014Background
- Consolo and Menter were former business partners in a credit card processing venture who settled a 2007 dispute; the settlement included a $500,000 consent judgment that would be filed if Menter failed to pay $270,000 in installments.
- On Dec. 9, 2009, Consolo filed the consent judgment after Menter stopped direct payments and used an escrow deposit; he sought enforcement and relief under Civ.R. 60(B).
- The trial court voided the consent judgment as an unenforceable penalty and thus denied the Rule 60(B) motion as moot; on appeal, this Court reversed, finding Menter breached by withholding payments and that the penalty label was not proper because the settlement amount was ambiguous.
- On remand, the parties filed cross-motions for summary judgment; the trial court concluded the settlement totaled $270,000 and again treated the consent judgment as an unenforceable penalty, granting Menter’s Rule 60(B) motion.
- Consolo appeals, arguing the consent judgment and promissory note reflect the actual settlement amount and that relief under Civ.R. 60(B) is inappropriate; this Court ultimately sustains Consolo’s assignments of error I–III and remands, reversing the trial court’s judgment.
- The panel notes the ambiguity over the settlement amount and criticizes the trial court for not conducting an evidentiary hearing as required to resolve extrinsic evidence on contract terms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the consent judgment and promissory note reflect the actual settlement amount | Consolo: the documents reflect the agreed settlement value | Menter: the amount is not clearly stated; disputed terms | Yes; the matter requires further fact-finding on the settlement amount |
| Whether the consent judgment constitutes an unenforceable penalty under Civ.R. 60(B) | Consolo: not an unenforceable penalty; no basis for Rule 60(B) relief | Menter: the penalty label renders relief under Rule 60(B) appropriate | No; the court abused discretion; 60(B) relief not warranted on these facts |
| Whether relief from judgment under Civ.R. 60(B) was proper | Consolo: 60(B) relief inappropriate since no extraordinary circumstances | Menter: relief warranted due to penalty characterization | No; the trial court abused its discretion; 60(B)(5) not satisfied; judgment reversed |
Key Cases Cited
- Bank of New York Mellon Trust Co. v. Bowers, 2013-Ohio-5488 (9th Dist. Lorain No. 12CA010289 (2013)) (abuse of discretion standard under Civ.R. 60(B))
- Kish v. Kish, 2012-Ohio-5430 (9th Dist. Lorain No. 12CA010185 (2012)) (GTE test for Civ.R. 60(B) relief requires meritorious defense, proper grounds, and reasonable timing)
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 ((1976)) (three-prong GTE test for Civ.R. 60(B) relief)
- In re J.W., 2013-Ohio-4368 (9th Dist. Summit No. 26874 (2013)) (Rule 60(B)(5) requires substantial, extraordinary circumstances)
- Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 ((1983)) (limitations on grounds for 60(B) relief; substantiality of grounds)
- Mynes v. Brooks, 2010-Ohio-2126 (4th Dist. No. 07CA3185 (2010)) (consent judgments cannot be collaterally attacked absent irregularity or fraud)
- Shanks v. Shanks, 1997 WL 114397 (4th Dist. No. 96CA2252 (1997)) (collateral attack cautions on final judgments)