Michael Hanko v. Michael Nestor, et al. v. Robert Hanko
Court of Appeals No. E-15-041
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
May 13, 2016
2016-Ohio-2976
Trial Court No. 2001 CV 0304
Christian M. Bates, for appellant.
DECISION AND JUDGMENT
SINGER, J.
{¶ 1} This is an appeal from the July 25, 2015 judgment of the Erie County Court of Common Pleas granting appellee‘s motion for relief from judgment. For the reasons that follow, we reverse the judgment of the trial court.
- The Trial Court erred in granting Plaintiff-Appellee relief from judgment under
Civ.R. 60(A) as the Court‘s act of reversing its prior judgment amounted to a substantive change rather than the correction of a clerical mistake. - The Trial Court erred in granting Plaintiff-Appellee relief from judgment under
Civ.R. 60(B)(5) as Plaintiff-Appellee‘s Motion was not made within a reasonable amount of time.
{¶ 3} The facts of this case are fully set forth in this court‘s decision in Hanko v. Nestor, 6th Dist. Erie No. E-11-055, 2012-Ohio-4488 (”Hanko I“). The facts relative to this appeal are as follows.
{¶ 4} Appellee, Michael Hanko, and appellant, Michael Nestor, formed H&N Construction, Inc. (“H&N“) in the early 1990s. In 1999, Hanko filed a complaint against Nestor asserting claims with respect to issues with H&N. Nestor filed a counterclaim against Hanko. In 2001, the case was voluntarily dismissed without prejudice. Hanko re-filed the complaint later in 2001. Nestor again filed counterclaims against Hanko.
{¶ 5} In 2009, Nestor filed two separate motions to dismiss Hanko‘s claims for failure to prosecute. On July 2, 2009, the trial court dismissed Hanko‘s complaint with prejudice for failure to prosecute pursuant to
{¶ 7} On September 28, 2012, we affirmed the trial court‘s July 2, 2009 judgment dismissing Hanko‘s claims for want of prosecution. See Hanko I. Hanko then filed an application for reconsideration with this court; the application was denied. Hanko‘s appeal to the Ohio Supreme Court was not accepted for review. See Hanko v. Nestor, 134 Ohio St.3d 1469, 2013-Ohio-553, 983 N.E.2d 368.
{¶ 9} We apply an abuse of discretion standard in reviewing the trial court‘s ruling on a motion for relief from judgment under
{¶ 10} In his first assignment of error, Nestor contends the trial court erred in granting Hanko‘s motion for relief from judgment under
{¶ 11}
{¶ 12} Here, the trial court, in its July 20, 2011 entry vacating its June 17, 2011 order, set forth in relevant part:
This matter having come to the Court‘s attention, upon review, that it inadvertently signed an Order on June 16, 2011 (filed June 17, 2011) in error; the Court hereby vacates said entry.
It was the Court‘s intention at the time of ruling of [sic] Plaintiff‘s Motion for Reconsideration to grant said motion and to allow this case to proceed on its merits and adjudicate all matters.
{¶ 13} It is undisputed that when the trial court issued its July 20, 2011 ruling, it did not have jurisdiction over the matter as Hanko had already filed an appeal from the trial court‘s June 17, 2011 order. See State ex rel. Rock v. School Emps. Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8 (“[O]nce an appeal is perfected, the trial court is divested of jurisdiction over matters that are inconsistent with the reviewing court‘s jurisdiction to reverse, modify, or affirm the judgment.“). Therefore the trial court‘s July 20, 2011 entry is a nullity. See Horvath v. Packo, 2013-Ohio-56, 985 N.E.2d 966, ¶ 46 (6th Dist.).
{¶ 15} In its July 24, 2015 “Judgment Entry re: Motion for Relief from Judgment,” the trial court set forth:
This matter is before the Court on Michael Nestor‘s [sic] Motion for Relief from Judgment under
Civ.R. 60(A) andCiv.R. 60(B)(5) . Said matter was before the court for an evidentiary hearing on June 25, 2015. After a thorough review of the pleadings, evidentiary hearing, and relevant caselaw, said motion is found well taken and hereby GRANTED. All of Plaintiff‘s claims shall be reinstated.
{¶ 16} A review of the record shows that although the trial court presently maintains it intended to grant Hanko‘s May 20, 2011 motion for reconsideration, this intention is not apparent on the record. The trial court‘s June 17, 2011 order denying Hanko‘s motion for reconsideration was not a simple entry summarily granting or denying a motion. Rather, the order was detailed in its explanation that the trial court “stands by its July 2, 2009 Order dismissing Michael Hanko‘s claims for failure to prosecute.” As such, when the trial court granted Hanko‘s motion for relief from judgment on July 24, 2015, the court went beyond the scope of merely correcting a clerical mistake and substantively changed its June 17, 2011 judgment by permitting Hanko‘s claims to go forward when the claims had previously been dismissed.
{¶ 17} In his second assignment of error, Nestor asserts Hanko‘s motion for relief from judgment under
{¶ 18} To prevail on a
{¶ 19} The party seeking relief from judgment under
{¶ 21} A review of the record shows that Hanko filed his motion for relief from judgment almost four years after the judgment was rendered. As the case was on appeal to this court and the Ohio Supreme Court for almost two years, during those two years it was not unreasonable for Hanko to not file his motion for relief. However, it took Hanko over two years thereafter, from the end of February 2013 when the case was remanded to the trial court to May 2015, to file his motion for relief from judgment. Hanko has failed to present sufficient reasons for such a lengthy delay. Thus, Hanko did not meet his burden of demonstrating the timeliness of his motion. Moreover, the trial court, in addressing the timeliness issue at the hearing on the motion for relief from judgment, noted “to define timely in this case would be a stretch being that it started in 1999[.]”
{¶ 22} We find that under the circumstances, Hanko‘s delay in filing for relief from judgment of more than two years after the case was remanded to the trial court is unreasonable, and the trial court abused its discretion in granting Hanko relief from judgment under
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
CONCUR.
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.