591 N.E.2d 821 | Ohio Ct. App. | 1990
The issue presented in this appeal is whether the trial court abused its discretion by denying the motion of plaintiffs-appellants, Kevin and Sherry Gurkovich, for relief from judgment pursuant to Civ.R. 60(B). We affirm. *573
The facts of this case are not disputed. The Gurkoviches filed their complaint in the common pleas court on January 12, 1990 and a management conference was set for April 24, 1990. When the Gurkoviches' counsel was unable at the last moment to attend, the trial judge scheduled a pretrial hearing for June 26, 1990. The Gurkoviches' counsel failed to appear at this proceeding as well. Consequently, the court dismissed the complaint sua sponte on that date without first providing notice of its intention to do so. The Gurkoviches' ensuing motion for relief from judgment pursuant to Civ.R. 60(B) was denied on July 23, 1990. Their notice of appeal to this court was filed on August 6, 1990.
The Gurkoviches' notice of appeal seeks a review of both the trial court's initial dismissal of their complaint and the denial of relief after judgment. While this notice was filed within thirty days of the latter entry, it was not submitted in time to appeal the court's original entry of dismissal. App.R. 4(A). Accordingly, we can only address the rejection of the Gurkoviches' Civ.R. 60(B) motion. See Argo Plastic Products Co.v. Cleveland (1984),
The Ohio Supreme Court established in GTE Automatic Electricv. ARC Industries (1976),
"To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the 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 are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken."
If any of these three requirements is not satisfied, the motion should be overruled. Rose Chevrolet, Inc. v. Adams
(1988),
Civ.R. 60(B) is a remedial measure and should be liberally construed so as to advance these objectives. Id. at 248, 18 O.O.3d at 445,
Addressing the second prong of the Civ.R. 60(B) analysis, the Gurkoviches' motion for relief after judgment asserts only that:
"The pre-trial in this case was set for June 26, 1990. Plaintiffs' counsel inadvertantly [sic] omitted to note the date on his calendar, but made an appearance before the Ohio Liquor Control Commission on that date."
Civ.R. 60(B)(1) does identify "mistake, inadvertence, surprise or excusable neglect" as proper grounds for granting relief. However, no evidence of any kind supporting this claim was presented to the court or appeared in the record.
Our decision in this case is controlled by the Ohio Supreme Court's reasoning in Rose Chevrolet, supra. In that case, the moving party alleged "inadvertence and excusable neglect" but failed to offer any evidence permitting a factual determination as to whether Civ.R. 60(B)(1) was actually satisfied. Id.
"* * * It is true that neither Civ.R. 60(B) itself nor any decision from this court has required the movant to submit evidence, in the form of affidavits or otherwise, in support of the motion, although such evidence is certainly advisable in most cases. But the least that can be required of the movant is to enlighten the court as to why relief should be granted. The burden is upon the movant to demonstrate that the interests of justice demand the setting aside of a judgment normally accorded finality. A mere allegation that the movant's failure to file a timely answer was due to `excusable neglect and inadvertence,' without any elucidation, cannot be expected to warrant relief.
"In Colley [supra,
Rose Chevrolet is not distinguishable merely because the trial court in those proceedings permitted an evidentiary hearing on the Civ.R. 60(B) motion. In the instant case, the Gurkoviches did not request a hearing and do not now argue that they were entitled to one. Moreover, such a proceeding is not required when no material disputes appear in the record or evidentiary materials submitted. Hornyak v. Brooks (1984),
The thrust of the Gurkoviches' argument to this court is that the trial court erred by sua sponte dismissing their complaint without providing notice of its intention to do so. While we do agree with this contention,1 we cannot reverse the common pleas court since this issue is not before us directly. It is well settled that a Civ.R. 60(B) motion is a special collateral proceeding which cannot be employed as a substitute for an appeal. Blasco v. Mislik (1982),
The Gurkoviches' assignment of error is overruled and the trial court's judgment is affirmed.
Judgment affirmed. *576
BAIRD and MAHONEY, JJ., concur.
EDWARD J. MAHONEY, J., retired, of the Ninth Appellate District, sitting by assignment.