Fors v. BeroskeFors v. Beroske
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Stewart W. Jones, for appellee.
Matthew D. Harper and Mark W. Sandretto, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Theodore Beroske appeals a January 11, 2012 judgment of the Fulton County Court of Common Pleas that denied appellant’s
{¶ 3} Fors filed her complaint against appellant on June 13, 2011. Appellant did not file an answer or otherwise respond to the complaint. On motion, the trial court awarded appellee default judgment against appellant on August 4, 2011, and scheduled the case for an assessment of damages hearing on September 6, 2011. Although appellant received notice of the hearing, he failed to appear at the assessment of damages hearing. The hearing proceeded in his absence. Afterwards, the trial court issued its September 16, 2011 judgment.
{¶ 4} Appellant filed a
Assignment of Error
The trial court erred by denying aрpellant Theodore Beroske’s motion for relief from default judgment in a partition action where appellant demonstrated the requisite elements of
Civ.R.60(B) and GTE Automatic Electric, Inc. v. Arc Industries, 47 Ohio St.2d 124 (1976). (Docket No. 16: Judgment Entry).
Motion for Relief from Judgment
{¶ 6}
On motion and upon such terms as are just, the court may relieve a party or his legal rеpresentative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is basеd has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made
within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
{¶ 7} To prevail on a
(1) the party has a meritorious defense or claim to present if relief is granted; (2) thе party is entitled to relief under one of the grounds stated in
Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief areCiv.R. 60(B)(1) , (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.
{¶ 8} Where a movant fails to demonstrate any of these three requirements for
{¶ 9} Appellant argues that he did not oppose the partition relief sought by appellee in her complaint and therefore did not appear or defend the action. Appellant
{¶ 10} Appellant argues that these two claimed errors present meritorious defenses to the September 16, 2011 judgment and grounds for relief from judgment under
Meritorious Defense
{¶ 11}
{¶ 12} Ohio appellate courts have recognized that the limitations on default judgments set forth in
The primary purpose of
Civ. R. 54(C) ’s limitations on default judgments is to ensure that defendants are clearly notified of the maximum potential liability to which they are exposed, so that they may make an informed, rational сhoice to either: (1) enable a default judgment by not responding, or (2) invest the time and expense involved in defending an action. See White Oak Communities v. Russell (Nov. 9, 1999), 10th Dist. No. 98AP 1563. The plain language ofCiv. R. 54(C) unequivocally requires this notification of the maximum potential liability to be communicated through a demand for judgment in thе complaint. Id. at ¶ 11.
{¶ 13} The relief demanded by appellee in her complaint was for the court to partition the timeshare pursuant to statute, appoint a commissioner to facilitate sale of the property, and for the property to be appraised, advertised and sold. The complaint sought distribution of the proceeds of sale to the parties in accordance with their respective interests. Appellee also sought reimbursement for the cost of attornеy fees and title work expenses incurred in bringing the action and court costs. The complaint did not assert any claim for monetary damages against appellant or any claim for indemnity.
{¶ 14} The trial court’s judgment, however, ordered appellant tо pay appellee $6,500 and to indemnify and hold appellee harmless on any debts owed by appellee and
{¶ 15} We agree with appellant that the relief accorded appellee in the Sеptember 16, 2011 judgment is markedly different in kind and amount from what appellee demanded in the complaint. Appellant was not placed on notice in the complaint that he would be subject to a claim for $6,500 in damages and an obligation to defend and indemnify appellee on her obligations arising out of her purchase and ownership of the timeshare.
{¶ 16} In Belmon v. Hicks, 6th Dist. No. L-08-1066, 2009-Ohio-511, ¶ 21-22, this court held that
{¶ 17} In Masny v. Vallo, the plaintiff sought damages of $600 in the complaint but submitted evidence of greater damages at thе hearing on damages. The Eighth District Court of Appeals reversed a default judgment for $3,275 in the case, because
{¶ 19} The parties agree that the timeshare constitutes аn interest in real property and that they are the joint owners of the property, having purchased it together. Appellee sought partition of their interests under
{¶ 20} The second element under GTE is for the movant to demonstrate that he is entitled to relief under one of the grounds set forth in
{¶ 21} The Ohio Supreme Court has recognized:
Civ.R. 60(B)(5) is intended as a catch-all provision reflecting the inherent power of a court to relieve a person from the unjust operation of a judgment, but it is not to be used as a substitute for any of the other more spеcific provisions ofCiv.R. 60(B) .- The grounds for invoking
Civ.R. 60(B)(5) should be substantial. Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983) at paragraphs one and two of the syllabus.
{¶ 22} Appellant argues that the fact a default judgment grants relief prohibited under
{¶ 23} Appellee argues that appellant willfully and deliberately chose to ignore the complaint and not to file a timely answer. Appellee contends that such a failure does not constitute a basis for
{¶ 24} In Blasco the defendants “simply disregarded or ignored their obligation under the Civil Rules to timely present their defenses.” Blasco at 686. In Mount Olive Baptist Church, the defendant received the complaint and threw it away. Mount Olive Baptist Church at 288. The court concluded that the defendant had deliberately chosen to ignore the complaint and the defendant stated no other reason for failing to defend the action. Id. at 288.
{¶ 25} In Masny, the court recognized that the limitations on default judgments in
Reasonable Time
{¶ 26} The third requirement to grant relief from judgment under
{¶ 27} Accordingly, we conclude that appellant’s motion met the requirements for
{¶ 28} We find appellant’s assignment of error well-taken.
{¶ 29} We reverse the January 11, 2012 judgment of the Fulton County Court of Common Pleas that dеnied appellant’s
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Stephen A. Yarbrough, J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.