Summary
holding that one is entitled to Civ.R. 60(B) relief where one had not received notice of the filing of a suit
Summary of this case from In re Estate of HortonOpinion
No. 77-124
Decided January 4, 1978.
Judgments — Default judgment — Motion to vacate granted — Evidentiary hearing unnecessary, when — Civ. R. 60(B)(1).
Where the record contains sufficient evidence of excusable neglect on which to base a decision to grant a Civ. R. 60(B)(1) motion to vacate a default judgment and the movant has made a timely motion and has a meritorious defense, a trial court does not abuse its discretion if it grants the Civ. R. 60(B)(1) motion to vacate a judgment without first holding an evidentiary hearing on the Civ. R. 60(B)(1) issue.
APPEAL from the Court of Appeals for Franklin County.
The instant cause arises out of an automobile accident occurring in Columbus, Ohio, on April 14, 1970, involving appellant Doni Mae Doddridge and appellee Michael James Fitzpatrick. On October 27, 1971, Doni Mae Doddridge and her husband, Earl Doddridge, filed a complaint in the Court of Common Pleas of Franklin County alleging that appellee's negligence was the proximate cause of the automobile accident and of Mrs. Doddridge's injuries and Mr. Doddridge's subsequent loss of her companionship and services.
Appellants thereafter attempted service on defendant at five different addresses, three of which were allegedly supplied by defendant to the police investigating officer and to his insurance carrier. Three attempts at service of summons were returned "addressee unknown"; one was returned "moved, left no address"; and one other attempt at service was returned "no such address." Appellants then obtained service upon appellee by serving the Secretary of State as his agent pursuant to R.C. 2703.20.
On September 25, 1973, appellants were awarded a default judgment by the Court of Common Pleas. Approximately two months later, appellee filed a motion to vacate the default judgment. That motion alleged, in part, that appellee had a valid defense. Submitted in support of that motion was an affidavit by appellee stating that he received no summons or other legal papers in connection with the lawsuit prior to the date of the default judgment; and that appellee had not resided at the addresses to which appellants had sent service of summons, and had not known of the action pending against him until after judgment had been rendered.
On July 24, 1974, the trial court overruled appellee's motion to vacate. The trial court's denial of the motion to vacate was appealed to the Court of Appeals for Franklin County. In decisions rendered on December 3, 1974, and January 7, 1975, the Court of Appeals granted appellee's motion to vacate and overruled appellants' motion to reconsider or in the alternative to certify to the Supreme Court of Ohio as a case in conflict with a decision rendered by another Court of Appeals. In its December 3 decision, the Court of Appeals sustained a portion of appellee's fifth assignment of error and granted his motion to vacate on the grounds that "`the appellant [appellee herein] had a valid defense.'" On January 7, 1975, the court stated at page three:
"Under Civ. R. 60(B), the defendant, Fitzpatrick, was entitled to a hearing on his motion for relief after judgment, for which reason the cause was remanded for further proceedings according to law." Finally, in its journal entry of January 22, 1975, the Court of Appeals reversed "[f]or the reasons stated in the decisions of this court rendered herein on December 3, 1974 and January 7, 1975 * * *" and remanded the cause "for further proceedings according to law and consistent with said decision."
Appellants contend that a Court of Appeals may not overrule a motion for relief from judgment under Civil Rule 60(B) "without first finding that the trial court abused its discretion." In the prior appeal the Court of Appeals apparently did not find an abuse of discretion. However, since that was a final appealable order from which appellants did not appeal, see GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph one of the syllabus, appellants have forfeited their right to raise that issue at this time.
Upon remand, the trial court sustained appellee's motion to vacate, apparently without conducting a hearing to review the validity of appellee's Civ. R. 60(B) claims. After unsuccessfully requesting a writ of prohibition from the Court of Appeals for Franklin County to bar the trial court from sustaining the motion to vacate without holding a hearing pursuant to terms of the remand, appellants appealed the question of the necessity for a hearing to the Court of Appeals for Franklin County, The Court of Appeals found that there was "some language" in its earlier decisions "from which it could be inferred that an evidentiary hearing was required," but it also concluded that, "[f]rom the totality of the record * * * there appears to be no necessity for conducting an evidentiary hearing with respect to the motion to vacate the default judgment," and affirmed the trial court.
The cause is now before this court upon an allowance of appellants' motion to certify the record.
Mr. Willis E. Wolfe, Jr., for appellants.
Mr. Ted L. Earl, for appellee.
The central issue raised by the instant cause is whether the Court of Common Pleas of Franklin County abused its discretion when it granted appellee's motion to vacate the default judgment.
In their brief before this court appellants also contend that the proper section of Rule 60(B) to be applied to the instant cause is (B)(1) and not the catch-all provision of (B)(5); and that constructive service, per se, does not constitute reason for relief pursuant either to Rule 60 (B)(5) or 60(B)(1).
We agree that the excusable neglect standard of Rule 60(B)(1) rather than the catch-all provision of 60(B)(5) is applicable to the facts of the instant cause (see staff note to Rule 60[B]), and note that 60(B)(1) was applied by the Court of Appeals on this appeal. (See the January 1977 decision in the Court of Appeals for Franklin County on appellants' motion for reconsideration.)
Since the record in the instant cause indicates that there was evidence that appellee had no actual knowledge, as well as no actual notice, of the suit pending against him, it is not necessary for this court to determine whether constructive service, per se, would constitute grounds for granting a Rule 60(B)(1) "excusable neglect" motion to vacate.
Appellants argue, in effect, that the trial court abused its discretion (1) because, on a prior appeal, the Court of Appeals reversed and remanded for a hearing which the trial court never held and (2) because movant did not demonstrate to the trial court that his failure to answer was the result of excusable neglect, pursuant to Civ. R. 60 (B)(1).
Civ. R. 60 provides, in pertinent part:
"(B) On motion and upon such terms as are just, the court may relieve a party or his legal represenative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect * * *. 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."
It is generally accepted that Rule 60(B)(1), which allows a party to obtain relief from a judgment or order, "attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done." 11 Wright Miller, Federal Practice Procedure 140, Section 2851. Therefore, a motion to vacate a judgment pursuant to Rule 60(B) is addressed to the sound discretion of the trial court. See Terwoord v. Harrison (1967), 10 Ohio St.2d 170; GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146; Wright, supra, at page 157, Section 2857; 7 Moore's Federal Practice 227, Paragraph 60.19.
However, that discretion is not unbridled. A court considering a motion to vacate a judgment pursuant to Rule 60(B)(1) must determine that the motion was made within a reasonable time not exceeding one year after the judgment was entered and that the movant has demonstrated (1) that he has a meritorious claim or defense to present if relief is granted and (2) that he is entitled to relief under one of the grounds stated in Civ. R. 60 (B)(1). See GTE Automatic Electric, supra, paragraph two of the syllabus.
Under the facts of the instant cause, we find that the trial court had sufficient evidence of grounds for Civ. R. 60(B)(1) relief to grant appellee's motion to vacate the default judgment without abusing its discretion. In paragraph three of the syllabus in GTE Automatic Electric, this court stated:
"Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be in favor of the motion to set aside the judgment so that cases may be decided on their merits."
Appellee made his motion to vacate well within a year of the default judgment. Moreover, the record reveals that Mrs. Doddridge may have been required to yield the right of way to cars entering the intersection from appellee's direction. Therefore, appellee has a "meritorious defense" within the meaning of Civ. R. 60(B). Finally, there was evidence before the trial court that appellee was due relief under Rule 60(B)(1) because his default was the result of "excusable neglect." The record reveals that appellee had no actual notice of the lawsuit pending against him. In addition, appellee submitted an affidavit that he also had no actual knowledge of the pending legal action. In view of the fact that appellee had neither knowledge nor actual notice of the suit against him and of the fact that it is court policy, when deciding Civ. R. 60(B) motions, to encourage the resolution of cases on their merits, we find that appellants' second contention is not well taken.
See Stradler v. Hall (1975), 20 Fed.R. Serv. 2d 531; Schwab v. Bullock's Inc. (C.A. 9, 1974), 508 F.2d 353; Horn v. Intelectron Corp. (S.D.N.Y. 1968), 294 F. Supp. 1153; and Ameday v. United States Trucking Co. (E.D. Pa. 1974), 62 Fed.R. Dec. 72; for cases supporting the proposition that lack of knowledge of a pending suit constitutes excusable neglect.
Appellants also argue that the trial court abused its discretion because it granted appellee's motion to vacate without first holding the hearing which the Court of Appeals had ordered when it remanded the cause from a prior appeal.
We disagree. Failure to hold such a hearing before granting a Rule 60(B) motion does not automatically constitute an abuse of discretion. To require a hearing even though there is sufficient evidence of a valid Rule 60(B) (1) claim on the record would not further the interests of justice, implement speedy litigation or encourage the decision of cases on the merits.
Finally, the court's failure to hold a hearing did not constitute reversible error. We have already determined that the trial court had sufficient evidence of excusable neglect on the record to grant appellee's Rule 60(B) motion. Therefore, even if the Court of Appeals' judgment entry ordered a hearing, the trial court's failure to hold one did not, under the facts of the instant cause, affect a substantial right.
For the foregoing reasons we find that the trial court did not abuse its discretion when it granted appellee's Civ. R. 60(B) motion to vacate the default judgment, and we affirm the Court of Appeals.
Judgment affirmed.
O'NEILL, C.J., HERBERT, P. BROWN, SWEENEY and LOCHER, JJ., concur.
CELEBREZZE, J., concurs in the judgment.