Render v. BelleRender v. Belle
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-631227
JOURNALIZED:
ATTORNEY FOR APPELLANT
David M. Gauntner
Gurney, Miller & Mamone
75 Public Square
Suite 1100
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
Patrick M. Foy
Kelly M. Jackson
625 Alpha Drive
Box #011
Highland Heights, Ohio 44143-2114
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} This case came to be heard upon the accelerated calendar pursuant to
{¶ 2} Appellant, Kenneth Render (“Render“), appeals the judgment of the trial court that denied his
Factual and Procedural History
{¶ 3} On July 30, 2007, Render filed suit in the Cuyahoga County Court of Common Pleas seeking damages for injuries related to a motor vehicle accident. Render asserts that his counsel failed to communicate with him, engage in discovery, and to appear at any court hearings, including the case management conference and settlement conference, despite receiving notice.
{¶ 4} On March 12, 2008, the trial court entered an order dismissing Render‘s case with prejudice based upon his counsel‘s failure to participate in the case.
{¶ 6} On March 30, 2009, the trial court denied this motion.
{¶ 7} On April 22, 2009, Render filed the instant appeal. Render‘s sole assignment of error states:
“The trial court erred in denying plaintiff-appellant‘s Rule 60(B) motion to vacate the trial court‘s previous order dismissing plaintiff-appellant‘s case with prejudice when plaintiff-appellant‘s former counsel failed to appear at the scheduled case management conference and settlement conference and failure to file a response to defendants-appellees’ motion to compel discovery responses which constituted mistake, inadvertence or excusable neglect under Ohio R. Civ. P. 60(B)(1) or gross misconduct which should not be imputed to plaintiff-appellant under Ohio R. Civ. P. 60(B)(5).”
Standard of Review
{¶ 8} We review appeals from the award or denial of
{¶ 9}
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
* * *
(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. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.”
{¶ 10} In order to prevail on a motion for relief from judgment under
{¶ 11} In its March 30, 2009 journal entry denying Render‘s
{¶ 12} We turn now to the second prong of the test — whether Render can show facts that entitle him to relief under any of the grounds enumerated in
{¶ 13} In this case, since the conduct of Render‘s former counsel goes beyond mere mistake, inadvertence or excusable neglect, Render cannot state sufficient grounds for relief under
{¶ 14}
{¶ 15} Although a party is not entitled to use
{¶ 16} Both in his appellate brief and in his motion in the trial court, Render submitted affidavits outlining the extent of his former attorney‘s lack of representation. He states, in part, that his attorney never notified him of any court dates, discovery deadlines, or any developments in the case. He
{¶ 17} This case is distinguishable from other recent cases in this jurisdiction upholding the denial of relief under
{¶ 18} Finally, we note that it was unreasonable for the trial court to dismiss Render‘s motion as untimely, as he meets the one-year requirement of
{¶ 19} In this case, the trial court denied Render relief in part because “nearly a year” had passed since the trial court entered judgment. Savage filed his
{¶ 20} The trial court abused its discretion in denying Render relief under
{¶ 21} If the trial court had dismissed Render‘s cause of action without prejudice our decision might be different. “Although reviewing courts espouse an ordinary ‘abuse of discretion’ standard of review for dismissals with prejudice, that standard is actually heightened when reviewing decisions that forever deny a plaintiff a review of a claim‘s merits.” Autovest L.L.C. v. Swanson, 8th Dist. No. 88803, 2007-Ohio-3921, quoting Jones v. Hartranft (1997), 78 Ohio St.3d 368, 372, 678 N.E.2d 530. In this case, the trial court‘s
{¶ 22} In Willis v. RCA Corp. (1983), 12 Ohio App.3d 1, 465 N.E.2d 924, this court held that “[t]he power of the trial court to prevent undue delays and to control its calendars must be weighed against the policy which favors disposition of litigation on the merits.” Id. at 3. In Willis, we held, inter alia, where the case was dismissed with prejudice after counsel repeatedly failed to appear, such circumstances in and of themselves “did not justify an order that plaintiff should forever lose his day in court.” Id. Such is the case here.
{¶ 23} The judgment of the trial court denying Render‘s motion to vacate under
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
MARY EILEEN KILBANE, PRESIDING JUDGE
MELODY J. STEWART, J., and
ANN DYKE, J., CONCUR