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Laidley v. St. Luke's Medical Center6/3/1999
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To prevail on a motion for relief from judgment, the motion must be made within a reasonable time; the party must show that the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)-(5) and the party must invoke a meritorious defense to present if relief is granted. GTE Automatic Electric, Inc. v. ARC Industries, (1976), 47 Ohio St.2d 146. A motion for relief from judgment is entrusted to the sound discretion of the trial court and the court's ruling will not be disturbed on appeal unless it is shown the court abused its discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77.
Civ.R. 60(B)provides in pertinent part:
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 Civ.R. 59(B);
A motion for relief from judgment under Civ.R. 60(B)(1) cannot be predicated upon the argument that the trial court made a mistake in rendering its decision. Chester Twp. v. Fraternal Order of Police(1995), 102 Ohio App.3d 404, 408. It is clear that the type of mistake contemplated by Civ.R. 60(B)(1) is a mistake by a party or his legal representative, not a mistake of substantive law made by the trial court. Antonopoulos v. Eisner (1972), 30 Ohio App.2d 187. Thus, Civ.R. 60(B) may not be used as a substitute for an appeal. Doe v Trumbull Cty. Children Services Bd. (1986), 28 Ohio St. 128, 131.
Further, Civ.R. 60(B)(3) governs fraud, misrepresentation and misconduct of an adverse party. Despite appellant's assertion to the contrary, we find no evidence in the record of misconduct of counsel to warrant relief from the judgment in this case. Accordingly, we find no abuse of discretion in the trial court's denial of appellant's motion made pursuant to Civ.R. 60(B) where the errors complained of are alleged mistakes made by the trial court which are properly the subject of this appeal and no other grounds for relief have been presented. Appellant's fourth assignment of error is without merit.
Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.
This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with the opinion herein.
It is, therefore, ordered that appellees and appellant equally share the costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIMOTHY E. McMONAGLE JUDGE
O'DONNELL, P.J. and BLACKMON, J., CONCUR.
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