Perkins v. Nocum
2011 Ohio 4167
Ohio Ct. App.2011Background
- Perkins filed a second action in July 2007 against multiple defendants including Klooz after dismissing an earlier suit in May 2007.
- The complaints alleged fraud, breach of a real estate sales agreement, deceptive sales acts, and breaches of express and implied warranties.
- Klooz did not respond to Perkins’ second complaint; Perkins moved for default on September 26, 2008, and the trial court entered judgment on October 22, 2008.
- The default judgment awarded Perkins $50,250 in compensatory damages, $50,250 in punitive damages, and $33,500 in attorney fees; Klooz was not present at the hearing and no record of proceedings was made.
- Klooz learned of the judgment on October 23, 2009 and filed a Civ.R. 60(B) motion to vacate on November 25, 2009, asserting timeliness, a meritorious defense, and relief under Civ.R. 60(B)(5).
- The trial court denied the Civ.R. 60(B) motion; on appeal, the court reversed as to the third assignment of error, sustaining relief under Civ.R. 60(B)(5) and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 60(B)(5) relief was proper. | Klooz had a meritorious defense and substantial grounds for relief. | Perkins argues no grounds for relief; the judgment should not be vacated. | Yes; relief granted and judgment reversed on this basis. |
Key Cases Cited
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (Ohio 1976) (defines three-prong test for Civ.R. 60(B) relief)
- Ross v. Shively, 2007-Ohio-5118 (9th Dist. 2007) (improper entry of default judgment where claims not alleged warrants relief)
- Strack v. Pelton, 70 Ohio St.3d 172 (Ohio 1994) (abuse of discretion standard; three-prong test is conjunctive)
- State ex rel. Gyurcsik v. Angelotta, 50 Ohio St.2d 345 (Ohio 1977) (inherent power of court to relieve from unjust operation of a judgment)
- Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (Ohio 1983) (substantial grounds for relief under 60(B)(5) when warranted)
- Buckingham, Doolittle & Burroughs LLP v. Healthcare Imaging Solutions LLC, 2010-Ohio-418 (Ohio 2010) (contemporary application of 60(B) standards in appellate review)