Moccabee v. Bashore
2021 Ohio 4345
Ohio Ct. App.2021Background
- Feb. 1, 2015: Layne Moccabee was a passenger in a crash caused by driver Lauren Bashore; four passengers seriously injured.
- USAA initially disclosed two policies (combined $50,000 per person / $100,000 per accident); Moccabee sued Lauren and Thomas Bashore and settled for $25,000 on Aug. 27, 2017.
- On Nov. 1, 2017 the case was dismissed with prejudice by a stipulated dismissal that expressly stated the court retained jurisdiction to enforce the settlement and resolve liens.
- Moccabee later learned of a third USAA policy (grandparents) with much higher limits and on Oct. 15, 2020 filed Civ.R. 60(B) motions alleging USAA fraud/misrepresentation for failing to disclose that policy (moved under 60(B)(3), later added 60(B)(5) and 60(B)(1)).
- Trial court denied relief: found 60(B)(1)-(3) claims untimely (not filed within one year of the Nov. 1, 2017 judgment), rejected equitable tolling for 60(B) motions, and concluded plaintiff failed to present operative facts showing intentional fraud by USAA; also (erroneously) held second 60(B) motion barred by res judicata but ruled on its merits.
- On appeal the Sixth District affirmed: 60(B)(1)-(3) motion untimely because the dismissal was a final judgment despite retained limited jurisdiction; the second motion was not barred by res judicata but was denied for failure to present operative evidentiary facts proving fraud.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Nov. 1, 2017 stipulated dismissal was non-final because the entry expressly retained jurisdiction to enforce the settlement (so a 60(B)(1)-(3) motion remains timely) | Moccabee: dismissal was not final until settlement terms and liens were resolved, so her Oct. 15, 2020 60(B) motion is timely | Lauren/Thomas: dismissal was final when journalized on Nov. 1, 2017; 60(B)(1)-(3) requires filing within one year of that date | Court: dismissal was a final judgment despite limited retention of jurisdiction; 60(B)(1)-(3) time ran from journalization and motion was untimely |
| Whether alleged misrepresentations by USAA (insurer/third party) can support relief under Civ.R. 60(B)(3) (fraud by an adverse party) | Moccabee: USAA concealed a material policy and induced settlement; fraud defeated finality or supports relief | Lauren/Thomas: Civ.R. 60(B)(3) applies to fraud by an adverse party; insurer is not an adverse party and no party-to-litigation fraud shown | Court: 60(B)(3) requires fraud by an adverse party; plaintiff’s allegations concerned a third party insurer, so 60(B)(3) did not apply |
| Whether equitable tolling or treating the date liens were resolved as the start of the 60(B) clock makes the motion timely | Moccabee: one-year period should run from lien resolution or be tolled because USAA concealed the third policy | Defs: equitable tolling inapplicable to Civ.R. 60(B); one-year clock began at journalization | Court: equitable tolling inapplicable here; one-year deadline began when the judgment was journalized |
| Whether relief under Civ.R. 60(B)(5) (fraud on the court / other reasons) supports vacatur and whether the second 60(B) motion was barred by res judicata | Moccabee: 60(B)(5) applies because USAA’s conduct was third‑party fraud and/or fraud on the court; second motion should be considered | Defs: second motion repeats same grounds and is barred; no fraud on the court shown | Court: res judicata did not bar the second motion (no prior final decision on first motion), but plaintiff failed to present operative evidentiary facts (affidavits, sworn testimony) showing intentional concealment by USAA, so 60(B)(5) relief was denied |
Key Cases Cited
- Infinite Security Solutions, L.L.C. v. Karam Properties, II, Ltd., 37 N.E.3d 1211 (Ohio 2015) (trial court retains jurisdiction to enforce a settlement only if dismissal entry incorporates the settlement or expressly states it retained jurisdiction)
- GTE Automatic Elec., Inc. v. Arc Indus., Inc., 351 N.E.2d 113 (Ohio 1976) (standards for Civ.R. 60(B) relief: meritorious defense, grounds under rule, reasonable time)
- Blakemore v. Blakemore, 450 N.E.2d 1140 (Ohio 1983) (abuse of discretion standard for appellate review)
- Hughes v. Calabrese, 767 N.E.2d 725 (Ohio 2002) (res judicata bars subsequent actions based on same transaction or occurrence)
- Portage Cty. Bd. of Commrs. v. Akron, 846 N.E.2d 478 (Ohio 2006) (four-factor test for res judicata)
- Futernick v. Sumpter Twp., 207 F.3d 305 (6th Cir.) (retention of limited jurisdiction to enforce settlement does not render an otherwise final judgment non-final)
- Hirshon v. Republic of Bolivia, 979 F.Supp. 908 (D.D.C.) (reservation of limited jurisdiction to administer/enforce settlement does not make final judgment non-final)