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In re Guardianship of Matyaszek12/29/2004
rst raised on appeal); Bobinsky v. Tippett, 9th Dist. No. 21444, 2003-Ohio-3787 (promissory estoppel raised for first time on appeal); McBroom v. McBroom, 6th Dist. No L-03-1027, 2003-Ohio-5198 (mutual mistake first raised on appeal); May v. Westfield Village, L.P., 5th Dist. No. 02-COA-051, 2003-Ohio-5023 (estoppel raised for first time as defense); Stables v. Bland, 11th Dist. No. 2002-T-0075, 2003-Ohio-1751 (grounds to vacate under Civ.R. 60(B)(5) raised for first time on appeal); St. Clair v. St. Clair (Oct. 9, 1985), 9th Dist. No. 3835 (grounds to vacate under Civ.R. 60(B)(5) brought for first time on appeal); Atlantic Richfield Co. v. McClellan (1984), 11th Dist. No. 3395 (dower interest as grounds for seeking to vacate judgment under Civ.R. 60(B)(5) first raised on appeal). Appellant's argument in no way presents a new issue.
{ } Appellee next asserts that if appellant is permitted now to argue that appellee, and not its attorneys, perpetrated a fraud upon the court, then such allegations are time-barred under Civ.R. 60(B)(3). Appellee alleges that any fraud it allegedly perpetrated upon the Magistrate is governed by Civ.R. 60(B)(3), and consequently has a one-year time frame. Appellee relies on the case of Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64.
{ } In Caruso-Ciresi, appellee corporation filed suit against appellant corporation and others, alleging that appellant illegally received assets from a debtor of appellee in violation of Ohio Bulk Sales Act. Appellant failed to respond to the complaint and the trial court entered a default judgment against it. Appellant moved to vacate the judgment under Civ.R. 60(B)(1) on the grounds of excusable neglect on the part of its attorneys. The court denied the motion. Appellant then moved the court to reconsider the motion under Civ.R. 60(B)(5). The court granted the new motion under Civ.R. 60(B)(5) on the grounds that appellant had a meritorious defense. The trial court had the same evidence before it which was presented in appellant's motion to vacate on the grounds of excusable neglect.
{ } On appeal after trial, the appellate court reinstated the default judgment against appellant. The Ohio Supreme Court affirmed the appellate court which held that the trialcourt abused its discretion when it properly overruled a motion for relief from judgment based on Civ.R. 60(B)(1) and then reconsidered its ruling, and without additional facts before it, vacated its earlier ruling and granted the motion to vacate based on Civ.R. 60(B)(5) simply because the movant had a meritorious defense.
{ } In this case, however, appellant has not changed grounds under Civ.R. 60. Appellant has always argued that Civ.R. 60(B)(5) applies. This Court has found that fraud upon the court constitutes grounds to vacate under Civ.R. 60(B)(5) whether perpetrated by a party or its attorneys. In Hoyt v. Hoyt (Aug. 15, 2001), 9th Dist. No 20411, we defined fraud upon the court as that "species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by the officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases *," quoting Coulson v. Coulson (1983), 5 Ohio St.3d 12, 15.
{ } Our finding in Hoyt states that either a party or its attorneys may be the entity to perpetrate a the fraud upon the court and have the matter considered under Civ.R. 60(B)(5). Clearly, this is what appellant has always alleged. Appellee's argument that appellant is precluded from raising this issue on appeal is meritless.
B. Whether Appellant's Father Attended the Settlement Hearing
{ } Appellee's argument that appellant has raised
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