Durst v. Nutter
2021 Ohio 710
Ohio Ct. App.2021Background
- Durst sued Nutter alleging fraud, theft, embezzlement; the parties reached a settlement on May 10, 2019 at trial.
- The court instructed counsel to prepare a settlement entry; no agreed entry was timely filed, so the court scheduled further action and permitted submission before an October hearing.
- Nutter submitted a proposed final order; on September 25, 2019 the trial court issued a final, appealable dismissal resolving all Durst’s claims but noting the parties disagreed on the dismissal’s effect on statutes of limitation and savings statutes.
- Durst filed a Civ.R. 60(A)/(B) motion (Nov. 14, 2019) arguing the entry misstated the agreement (she asserted all claims except Count VI were to be dismissed without prejudice); the trial court denied the motion after a hearing.
- Durst appealed the denial; the Fourth District dismissed the appeal as barred by res judicata and, alternatively, held the trial court did not abuse its discretion in denying relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Durst could use Civ.R. 60 to attack the September 25, 2019 settlement entry | Durst: entry contains a clerical error — it fails to state that all claims except Count VI were dismissed without prejudice; correction permitted under Civ.R. 60(A) and relief under Civ.R. 60(B) | Nutter: the settlement entry was a final appealable order; Durst could have raised the dispute on direct appeal; the entry reflects the parties’ disagreement and the court’s reservation | Appeal dismissed under res judicata; alternatively, denial of Civ.R.60 relief was not an abuse of discretion |
| Whether the trial court abused its discretion in denying Civ.R. 60(A)/(B) relief on the merits | Durst: emails and a draft entry show the parties’ intent about prejudice, so relief was warranted | Nutter: no evidence shows mutual agreement on prejudice; the record indicates the parties disagreed and the court expressly declined to opine | Court found no persuasive evidence of a clerical mistake or other grounds for relief; trial court did not abuse its discretion |
Key Cases Cited
- Griffin v. State, 4 N.E.3d 989 (Ohio 2013) (res judicata bars relitigation of matters that were or could have been raised on direct appeal)
- Blasco v. Mislik, 433 N.E.2d 612 (Ohio 1982) (Civ.R. 60(B) cannot be used to relitigate issues available on direct appeal)
- State ex rel. Litty v. Leskovyansky, 671 N.E.2d 236 (Ohio 1996) (distinguishes clerical correction under Civ.R.60(A) from substantive change to judgments)