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In re Guardianship of Matyaszek12/29/2004
e of appellant's settlement required disclosure of additional consideration paid to the parents as the result of the incident causing the injury to the minor. He stated that the purpose of the rule was to prevent parties from paying money to individuals other than the minor in order to avoid the scrutiny of the probate court.
{ } As a result of the foregoing failures to disclose, the Magistrate found by clear and convincing evidence that appellee's attorneys committed a fraud on the court to the detriment and prejudice of appellant.
{ } Also, as a matter of law and equity, the Magistrate found that once appellant's attorneys began representing his interests in 1999, they proceeded with due diligence and that relief from judgment under Civ.R. 60(B)(5) was proper. He ruled that the judgment should be reopened.
F. Probate Court's Review
{ } Appellee appealed the Magistrate's decision and the Probate Court reversed. The Probate Court found that appellant was not entitled to relief under Civ.R. 60(B)(5) because a twelve-and-a-half year delay between the settlement and the motion to vacate was not reasonable as a matter of law. The court found that appellant's father was fully aware of all the proceedings involving his son and that he was responsible, as representative of his son, to set aside the judgment within a reasonable time.
{ } Further, in 1995, attorneys who were allegedly acting on behalf of both appellant and his father contacted appellee with respect to the judgment. The Probate Court concluded that the motion to vacate was not filed within a reasonable time even using this later date.
{ } The Probate Court also found that appellant's father was present at the hearing and was the only party who may have perpetrated a fraud on the court. The court found that appellant was bound by the representations his father made to the court that he had fully recovered from his injuries. The Probate Court also found that Magistrate Wertz had before him all the information necessary to approve the settlement.
{ } The court also found that appellee's attorneys did not perpetrate a fraud on the court because appellant did not prove that appellee's attorneys made any representations to the Magistrate about appellant's condition, that its attorneys had any knowledge of the falsity of statements made by appellant's father regarding his condition, or that they had any intent to defraud the court.
{ } The court found that appellee's attorneys had no obligation under the Superintendence Rules to disclose medical payments or property damage received by appellant's father from appellee.
{ } Last, the court found that Dr. McLaughlin's letter was of virtually no value because it was predicated on hearsay and did not change the diagnosis, treatment or prognosis given by the treating physician.
{ } For these reasons, the Probate Court reversed the Magistrate and denied appellant's motion to vacate the judgment.
{ } Appellant has appealed from the Probate Court's finding that he was not entitled to relief from judgment under Civ.R. 60(B)(5). First, appellant argues that he has timely sought relief. He further argues that relief was warranted because fraud is not the only basis upon which to vacate a judgment. He argues that the procedural irregularities such as occurred here also provide grounds to vacate which the Probate Court improperly failed to consider.
{ } Appellee disputes that appellant is entitled to relief from judgment on several grounds. First, appellee argues that appellant has raised new issues which may not be considered on appeal. Appellee also claims that one
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