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In re Guardianship of Matyaszek12/29/2004
with the Probate Court regarding the timeliness of appellant's motion to vacate. The Probate Court improperly attributed appellant's father's knowledge and efforts (or lack thereof) to appellant.
{ } Appellant cannot be held to the time frame in which his father, acting on his own behalf, may be held. The Probate Court also abused its discretion in failing to consider the fact that this suit was brought by a minor. All the cases cited by the court, except for Ransone,supra, deal with suits by adults.
Consequently, appellant cannot be attributed with either a twelve and a half or a seven year delay.
{ } Appellant was appointed his current counsel in 1999, when he was 14 years old. His current counsel has diligently pursued his claims. The Probate Court abused its discretion in finding that appellant's motion was not timely filed.
{ } We now proceed to the merits of appellant's motion to vacate.
IV.
ASSIGNMENT OF ERROR
"THE PROBATE JUDGE COMMITTED ERRORS AT LAW AND ABUSED HIS DISCRETION, TO MOVANT-APPELLANT'S SUBSTANTIAL PREJUDICE, BY REJECTING THE MAGISTRATE'S FINDINGS AND CONCLUSIONS AND DENYING THE MOTION TO VACATE THE ORDER OF APRIL 22, 1988 APPROVING THE MINOR'S SETTLEMENT."
{ } In his sole assignment of error, appellant argues that the Probate Court abused its discretion in denying his motion to vacate the 1988 judgment approving the settlement made on his behalf. This Court agrees.
{ } This Court reviews a motion for relief from judgment under Civ.R. 60(B) under an abuse of discretion standard. Hall v. Paragon Steakhouse (July 26, 2000), 9th Dist. No 99CA007443. An abuse of discretion is more than an error of judgment. It involves "perversity of will, passion, prejudice, partiality, or moral delinquency." Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. When applying an abuse of discretion standard, this Court may not substitute its judgment for that of the Probate Court. S. Ohio Coal Co. v. Kidney (1995), 100 Ohio App.3d 661, 667.
{ } Appellant requests that the settlement approved on April 22, 1988, be vacated under Civ.R. 60(B)(5). Civ.R. 60(B) provides:
"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; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under under Civ.R. 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (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."
{ } To prevail on a Civ.R. 60(B) motion, a party must meet three requirements:
"(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment, order or proceeding was entered or taken." GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d
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