Jizco Ents. v. HehmeyerJizco Ents. v. Hehmeyer
Dated: February 3, 2010
WHITMORE, Judge.
{¶1} Defendants-Appellants, Irmtraud and Kenneth Hehmeyer (collectively “the Hehmeyers“), appeal from the judgment of the Summit County Court of Common Pleas, denying their motion to vacate and motion for relief from judgment in favor of Plaintiff-Appellee, Jizco Enterprises (“Jizco“). This Court affirms.
I
{¶2} On September 12, 2008, Jizco filed an eviction proceeding against the Hehmeyers in Barberton Municipal Court. Based on a counterclaim filed by the Hehmeyers, the case was transferred to the Summit County Court of Common Pleas. Jizco later prevailed on its motion for summary judgment, and the matter was set for a hearing on damages. That hearing was held on March 20, 2009, at which Jizco and the Hehmeyers entered into an agreement on the record as to the calculation of damages. At the direction of the court, Jizco‘s counsel prepared the order memorializing the parties’ agreement. On March 25, 2009, the trial court entered judgment
{¶3} On April 21, 2009, the Hehmeyers filed a motion to vacate the judgment arguing that: (1) their attorney did not review or sign the judgment order; (2) judgment was improperly entered against Kenneth as he does not have a legal interest in the property; and (3) new evidence demonstrated that Irmtraud‘s former spouse, Paul Zetts, was required to make the rental payments under the terms of the parties’ divorce. On May 1, 2009, the Hehmeyers filed a motion for relief from judgment under
II
Assignment of Error
“DID THE TRIAL COURT ERR BY ACCEPTING AN ‘AGREED ORDER’ THAT HAD NOT BEEN ENDORSED BY COUNSEL FOR THE APPELLANTS BECAUSE THE AMOUNT OF DAMAGES WAS TO BE CALCULATED AND HAD NOT BEEN TO THE SATISFACTION OF THE APPELLANTS; AND THEN BY DENYING A MOTION FOR RECONSIDERATION FILED BY THE APPELLANTS.”
{¶4} In the Hehmeyers’ sole assignment of error, they argue that the trial court erred in entering an agreed order as to the amount of damages when their counsel had not reviewed or signed the order. They allege that the amount of damages was never agreed to, arguing that only the “parameters” had been discussed. They further assert that they did not waive their approval
{¶5} This Court reviews the grant or denial of a
{¶6}
“(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 based 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.”
In order to prevail on a
“[T]he 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 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. (1976), 47 Ohio St.2d 146, paragraph two of the syllabus.
If any of the above requirements are not met, the
{¶8} The Supreme Court has held that a party cannot employ a
{¶9} This Court has similarly concluded that it is within the trial court‘s discretion to deny a motion for relief from judgment that is based entirely upon issues that could have been raised on direct appeal. Rock v. Inn at Medina Mgt. Co., Inc., 9th Dist. No. 07CA0072-M, 2008-Ohio-1992, at ¶7. Likewise, where a party‘s grounds for relief do not fall under the terms of
{¶10} Aside from the fact that the Hehmeyers have not related their request for relief to any of the specifically enumerated grounds for relief under
{¶11} Based on the foregoing, the trial court did not err in denying the Hehmeyers’ motions. Accordingly, their sole assignment of error is overruled.
III
{¶12} The Hehmeyers’ sole assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellants.
BETH WHITMORE
FOR THE COURT
BELFANCE, J.
CONCUR
APPEARANCES:
CHRIS G. MANOS, Attorney at Law for Appellants.
WILLIAM LOVE, II, Attorney at Law, for Appellee.