689 N.E.2d 71 | Ohio Ct. App. | 1996
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *718 Defendant-appellant, GatesMcDonald, appeals from the judgment of the Medina County Court of Common Pleas denying its Civ.R. 60(B)(5) motion for relief from judgment. We affirm.
GatesMcDonald is the authorized workers' compensation service company that administers Owens Corning Fiberglas's self-insured workers' compensation program. In 1979, William A. Wachs was injured in the course of his employment at Owens Corning. In 1980, Wachs hired plaintiff-appellee, attorney Arthur V. Falk, to represent him in his Bureau of Workers' Compensation ("BWC") claim. Falk handled Wachs's claim through the years, and eventually negotiated a $32,500 final settlement with GatesMcDonald. This was approved by the Industrial *719 trial Commission of Ohio on July 24, 1991. Wachs had agreed to pay Falk one-third of any settlement. GatesMcDonald sent the settlement draft for the entire $32,500 directly to Wachs, without sending Falk his fee or including him as a copayee. Wachs cashed the check but failed to pay Falk.
Attorney Falk filed suit against Wachs for failure to pay the fee, and against GatesMcDonald for negligent and wrongful distribution of the settlement check directly to the client, despite having full knowledge of Falk's representation. Both defendants were properly served, but they failed to answer or otherwise make an appearance. After a hearing, the court granted a default judgment on November 16, 1992, finding Wachs and GatesMcDonald jointly and severally liable for the $10,833.33 attorney fee. No further action occurred for almost two years, until November 1994, when Falk attempted to collect from GatesMcDonald by garnishing its bank account.
GatesMcDonald acknowledged that certified mail service of the original complaint and the notice of default judgment were perfected when received by a mailroom employee, but claimed that no one in authority was aware of the legal action until November 1994, when garnishment proceedings commenced. At that time, GatesMcDonald indicated that a Civ.R. 60(B) motion for relief from judgment would be filed within the week.
Eleven months later, on October 2, 1995, GatesMcDonald filed a Civ.R. 60(B)(5) motion, claiming that it was entitled to relief from judgment because plaintiff's complaint had failed to state a claim upon which relief could be granted. GatesMcDonald alleged that a C-230 power of attorney form, entitling Falk to receive the settlement proceeds, had not been filed; therefore, the judgment was based on a legally nonactionable claim. GatesMcDonald maintained that its motion was timely because it had been filed within one year from the time it first learned of the default judgment.
On December 1, 1995, the trial court denied GatesMcDonald's Civ.R. 60(B)(5) motion. The court found that the motion, filed approximately eleven months after GatesMcDonald allegedly learned of the judgment and thirty-five months after the judgment itself, was untimely. On January 2, 1996, GatesMcDonald appealed.1 *720
"The trial court erred in denying separate defendant GatesMcDonald's motion for relief from judgment by order dated December 1, 1995."
In order to prevail on a motion for relief from judgment pursuant to Civ.R. 60(B), the movant must demonstrate (1) a meritorious claim or defense, (2) entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) timeliness of the motion. GTE Automatic Elec., Inc. v. ARCIndustries, Inc. (1976),
GatesMcDonald has invoked the fifth, catchall category under Civ.R. 60(B), "any other reason justifying relief from the operation of the judgment." Such a motion must be given a narrow application, and the grounds for its use should be substantial, not merely a substitute for an appeal. Caruso-Ciresi, Inc. v.Lohman (1983),
The determination as to what constitutes a reasonable time is left to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.Miamisburg Motel v. Huntington Natl. Bank (1993),
Courts have held that unjustified delays of considerably less time than the eleven months GatesMcDonald waited were untimely. See, e.g., Larson v. Umoh (1986),
GatesMcDonald has not offered any reasons why its motion, filed almost three years after the default judgment, and eleven months after appellant acknowledged that it learned of the judgment, should be considered timely. In the absence of any explanation for the delay in filing the Civ.R. 60(B) motion, the movant has failed to meet its burden of establishing the timeliness of the motion. See Youssefi v. Youssefi (1991),
On appeal, GatesMcDonald now argues that it was entitled to relief from the default judgment because the trial court lacked subject matter jurisdiction.2 A judgment rendered by a court lacking subject matter jurisdiction is void ab initio and may be vacated by virtue of the inherent power of the court independent of the grounds for vacation of a judgment pursuant to Civ.R. 60(B). Patton v. Diemer (1988),
GatesMcDonald argues that subject matter jurisdiction for a fee dispute concerning a workers' compensation claim lies only with the Industrial Commission of Ohio, relying upon R.C.
R.C.
Ohio Adm. Code
"When a controversy exists between a party and his representative concerning fees for services rendered in industrial claims, either the party or the representative may make a written request to the commission to resolve the dispute. Such request must be completed and filed in accordance with the rules of the industrial commission, the matter being within the exclusive jurisdiction of the industrial commission."
GatesMcDonald has not demonstrated how either the statute or the administrative regulations mandate exclusive jurisdiction before the Industrial Commission according to the facts in the case sub judice. While the statute grants the commission broad authority to prevent the exploitation of claimants, it mandates specific attorney fee approval procedures only where there is a fee controversy and with respect to services rendered in securing a lump-sum payment under R.C.
Moreover, the language of the Administrative Code and the statute is plain on its face; it is intended to address only disputes "between a party and his representative"; "[t]he fee controversy has to be between the attorney and his client."Sonkin Melena Co., L.P.A. v. Zaransky (1992),
The administrative regulation provides an option by which a party or attorney "may" request the commission to resolve a dispute. The provision, however, *723 specifically pertains to "fee controversies"; Falk's complaint alleges breach of contract and negligence.
Kahan v. Greathouse, supra, Cuyahoga App. No. 65544, illustrates where it would be appropriate to request the authority of the Industrial Commission to intervene and resolve an actual fee dispute between an attorney and his client. The attorney, Julian Kahan, claimed he was entitled to more than $31,000 in fees for services rendered from 1982 until 1988. His client admitted that he had agreed to a one-third contingency fee, but denied that the attorney had represented him during most of those years. The attorney submitted the fee dispute to the Industrial Commission, which issued a binding ruling finding that the claimant owed only $3,483 in fees. The commission ruled that the attorney was not entitled to take a percentage of ongoing temporary total compensation and that the attorney's billing was time-barred as a matter of law. The jurisdictional issues present in Kahan are distinguishable from those now before us.
In the case sub judice, Falk's legal entitlement to the fee and its amount are not being disputed. The courts have recognized an "attorney's contractual right to collect a portion of a workers' compensation lump-sum award as payment for the attorney's efforts in obtaining the award." Rowan v. Rowan
(1995),
GatesMcDonald has not demonstrated how the facts in this case would preclude the Medina County Court of Common Pleas from exercising jurisdiction pursuant to R.C.
Appellant's assignment of error is overruled. The judgment of the trial court is affirmed.
Judgment affirmed.
QUILLIN, P.J., and DICKINSON, J., concur.
Because an appeal had already been filed, the trial court was without jurisdiction to issue that order. This court granted GatesMcDonald's motion to remand in order to properly vest the trial court with jurisdiction to reconsider the matter. SeeHoward v. Catholic Social Serv. (1994),
Accordingly, the appeal proceedings for the Civ.R. 60(B) denial were resumed.