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In re Guardianship of Matyaszek12/29/2004
a head injury, and the fact that just the hospital bills alone exceeded the settlement all create a strong presumption of serious procedural irregularity solely because the amount of the settlement was at the limit permitted without the appointment of a guardian ad litem.
E. Analysis of the Probate Court's Finding
{ } Based on the above-stated facts, the Probate Court found that appellant was not entitled to relief under Civ.R. 60(B)(5) because he had not proved by clear and convincing evidence that appellee's counsel perpetrated a fraud upon the court. The court further found that any fraud was perpetrated by appellant's father alone. The court found that appellant was bound by his father's representations to the Magistrate about his current medical condition whether they were fraudulent or not.
{ } This Court finds that the Probate Court abused its discretion by improperly focusing on the conduct of the parties and their attorneys and not on the procedural irregularities and their prejudicial impact on appellant. The Probate Court refused to set aside the judgment unless it could find by clear and convincing evidence that either appellee or its counsel perpetrated fraud upon the court.
{ } As set forth above, fraud is not the only grounds for relief under Civ.R. 60(B)(5). Bolivar v. Bolivar (1985), 8th Dist. No 49606. Civ.R. 60(B)(5) arises from the "inherent power of a court to relieve a person from the unjust operation of a judgment." Caruso-Ciresi, Inc, 5 Ohio St.3d at 66. Therefore, the Probate Court's inquiry was not limited to fraud. If the court could find prejudicial error in the proceedings which were detrimental to appellant's interests, then the judgment could be set aside. As shown above, there is abundant evidence of procedural irregularities prejudicial to appellant. The Probate Court abused its discretion in failing to vacate the judgment on the grounds of procedural irregularities prejudicial to appellant.
{ } The Probate Court also abused its discretion in failing to consider the fact that appellant was a very young minor when these proceedings occurred.
It is undoubtedly true that R.C. 2111.18 binds a minor to a settlement even if his injuries later turn out to be worse than anticipated. However, for settlements to be binding on a minor, R.C. 2111.18 requires that the minor's interests be considered and protected. In re Guardianship of Kelley, 172 Ohio St. at 181.
{ } In this case, it is clear to this Court that no one was protecting appellant's interest. The Probate Court's finding that appellant's father had the duty to protect his interests and that appellant is bound by his father's actions is incorrect. As shown above, parents are not always the proper parties to protect their children's interests because their interests often conflict with those of their children. See Guardianship of Muehrcke, 8th Dist. No. 81353, 2003-Ohio-176. The procedures provided in R.C. 2111.18 recognize this reality and provide for appointment of a guardian ad litem who will protect the minor's interests. The provision permitting settlement of claims of $10,000.00 or less recognize that some injuries are so negligible that a guardian ad litem is cost prohibitive and unnecessary. This is certainly not the case here. Appellant's injuries from the start were not negligible.
{ } Furthermore, this Court is left with the distinct belief that appellant's father did not act in his best interest during the settlement hearing by the representations he may have made to the Magistrate regarding his son's recovery and by violating the Magistrate's order regarding how the settlement proceeds were to be set aside for appellant.
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