2016 Ohio 2976
Ohio Ct. App.2016Background
- Hanko and Nestor were business partners; Hanko sued Nestor in 1999 and refiled claims in 2001 after a voluntary dismissal; Nestor asserted counterclaims.
- In 2009 the trial court dismissed Hanko’s complaint with prejudice for failure to prosecute under Civ.R. 41(B)(1); the counterclaims proceeded.
- Hanko sought reconsideration in 2011; the trial court denied reconsideration by order filed June 17, 2011 (and stated the order was final and appealable). Hanko appealed.
- While the appeal was pending, the trial court issued a July 20, 2011 entry purporting to vacate the June 17 order and grant reconsideration; that entry was void because the trial court lacked jurisdiction after the appeal was perfected.
- The appellate process concluded against Hanko (affirmance and denial of further review); in May 2015 Hanko moved for relief from the June 17, 2011 judgment under Civ.R. 60(A) and Civ.R. 60(B)(5). The trial court granted relief and reinstated Hanko’s claims.
- The Sixth District reversed, holding the trial court erred to the extent it used Civ.R. 60(A) to undo a substantive judgment and abused its discretion under Civ.R. 60(B)(5) because Hanko’s motion was not filed within a reasonable time after remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 60(A) authorized correction of the June 17, 2011 order (i.e., treating the July 20, 2011 entry as a clerical correction) | Hanko: the court intended to grant reconsideration in July 2011 and the July 20 entry merely corrected a clerical mistake | Nestor: the July 20 entry was a substantive reversal entered while an appeal was pending and thus void; Civ.R. 60(A) cannot make substantive changes | Court: Vacating the June 17 order was a substantive change, not a clerical correction; Civ.R. 60(A) relief was improper (assignment 1 sustained) |
| Whether relief under Civ.R. 60(B)(5) was denied for untimeliness (reasonable time) | Hanko: delay was justified because appeals and settlement efforts occupied the parties; the case’s procedural history made the timing reasonable | Nestor: Hanko waited over two years after remand (Feb 2013–May 2015) without sufficient explanation; motion untimely | Court: Motion filed more than two years after remand was unreasonable; trial court abused discretion in granting relief under Civ.R. 60(B)(5) (assignment 2 sustained) |
Key Cases Cited
- State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 97 (Ohio 1996) (defines clerical mistake and limits Civ.R. 60(A) to mechanical, record-evident errors)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard explained)
- Moore v. Emmanuel Family Training Ctr., Inc., 18 Ohio St.3d 64 (Ohio 1985) (standard of review for Civ.R. 60 motions)
- GTE Automatic Elec., Inc. v. Arc Indus., Inc., 47 Ohio St.2d 146 (Ohio 1976) (three-part test for Civ.R. 60(B) relief articulated)
- Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (Ohio 1988) (failure to satisfy any GTE requirement mandates denial of Civ.R. 60(B) motion)
- State ex rel. Rock v. School Emps. Retirement Bd., 96 Ohio St.3d 206 (Ohio 2002) (trial court loses jurisdiction over matters inconsistent with pending appeal)