607 N.E.2d 537 | Ohio Ct. App. | 1992
These consolidated appeals arise from a civil action filed by plaintiff, Eunice Justice, against defendants, Lutheran Social Services of Central Ohio and the law firm of Delligatti, Hollenbaugh, Briscoe Milless. Following a judgment in defendants' favor, plaintiff moved for relief from judgment pursuant to Civ.R. 60(B) and defendant Lutheran Social Services moved for an award of reasonable attorney fees, pursuant to R.C.
This appeal is but the latest chapter in a lawsuit originally filed in 1988 by plaintiff's daughter, Deborah K. Hurley. The suit was first brought in the United States District Court for the Southern District of Ohio after defendants removed three foster children from Hurley's home. That action was ultimately terminated in defendants' favor on a motion for summary judgment. *442 An identical action was also filed in the Franklin County Court of Common Pleas. That case was voluntarily dismissed several days after the termination of the federal case. This action was filed on July 7, 1989, naming the same defendants as those named in the previous actions, as well as the law firm representing those defendants. Though styled as an action for libel, slander and malicious prosecution, plaintiff's complaint merely attempts to relitigate those issues previously determined in defendants' favor by construing defendants' conduct in the prior litigation as libel and slander. Otherwise, the only material difference between this action and the previous litigation is the substitution of plaintiff's name in the complaint for that of her daughter.
The parties engaged in substantial discovery over a period of two years, after which defendants moved for summary judgment. The court referred the motion to a referee. In her report, the referee carefully considered the evidence offered by plaintiff and concluded that there was no factual basis for any of plaintiff's claims. The referee's report and recommendation were adopted by the trial court and judgment was entered for defendants on July 22, 1991. Plaintiff did not appeal from this judgment within the thirty days allowed by App.R. 4(A). Instead, plaintiff filed a motion for relief from judgment pursuant to Civ.R. 60(B). In that motion, plaintiff alleged that the referee assigned to the case conspired with defendants and fraudulently misrepresented the evidence in her report. The motion was overruled by the trial court and plaintiff filed this appeal, asserting three assignments of error:
"I. The court erred in that plaintiff was denied equal protection of the law.
"II. The court erred in that plaintiff was denied due process of law.
"III. The court erred in granting the decision under the influence of passion, confusion and prejudice."
Plaintiff's assignments of error are interrelated and they will be considered together. For the most part, plaintiff merely reiterates arguments which concern the merits of the case and which could have been raised on appeal. Relief under Civ.R. 60(B) is not available as a substitute for appeal. Blasco v.Mislik (1982),
Plaintiff's assignments of error are not well taken.
The second appeal, case No. 91AP-1198, concerns a motion for an award of reasonable attorney fees filed by defendant Lutheran Social Services. The motion was filed on August 9, 1991, eighteen days after the trial court's ruling on the motion for summary judgment. On September 19, 1991, the trial court denied the motion. The court ruled that under R.C.
"I. The court misconstrued the provisions of Ohio Revised Code Section
"II. The trial court erred in failing to set a hearing for the awardance [sic] of attorneys fees within 21 days after the entry of judgment."
In its first assignment of error, Lutheran Social Services contends that the trial court erroneously held that a hearing on a motion for attorney fees under R.C.
R.C.
When construing statutory language, we must avoid ridiculous or absurd results. In re Little Printing Co. (1983),
Lutheran Social Services' first assignment of error is well taken.
In the second assignment of error, Lutheran Social Services contends that the trial court erroneously failed to schedule and hold a hearing on the motion for attorney fees.
R.C.
Lutheran Social Services' second assignment of error is not well taken.
In case No. 91AP-1215, plaintiff's assignments of error are overruled and the judgment of the trial court is affirmed. In case No. 91AP-1198, the first assignment of error is sustained and the second assignment of error is overruled. The judgment of the trial court is reversed and the cause is *445 remanded for further proceedings consistent with this decision and in accordance with law.
Judgment affirmed in caseNo. 91AP-1215; judgmentreversed and cause remandedin case No. 91AP-1198.
DESHLER and STRAUSBAUGH, JJ., concur.
DEAN STRAUSBAUGH, J., retired, of the Tenth Appellate District, was assigned to active duty under authority of Section