 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Rhoades v. Ameritech Corp.12/15/2005
60(B) motion absent a showing of abuse of discretion. A trial court abuses its discretion when its decision is unreasonable, arbitrary or unconscionable. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.
{ } In the instant case, appellant's brief focuses almost exclusively on why the trial court erred in granting the defendants' motions for summary judgment and judgment on the pleadings. Appellant's recourse for gaining review of the trial court's decisions on these issues was to file a direct appeal with this court within the statutorily allotted time frame of 30 days from the final appealable order. Appellant failed to do this. Furthermore, appellant cannot use a Civ.R. 60(B) motion as a substitute for a timely appeal. See Key v. Mitchell (1998), 81 Ohio St.3d 89; State ex rel. Durkin v. Ungaro (1988), 39 Ohio St.3d 191, 192 (holding that a Civ.R. 60(B) motion is not a procedural device that can be used to obtain review of a judgment where a timely appeal was not filed). The Ungaro court explained its rationale, stating that " f we were to hold differently, judgments would never be final because a party could indirectly gain review of a judgment from which no timely appeal was taken by filing a motion for reconsideration or a motion to vacate judgment."
{ } We expanded on this reasoning in Henderson v. Rosewicz, Cuyahoga App. No. 80038, 2002-Ohio-1266, by holding the following:
"The gist of post-trial relief is to remedy an injustice resulting from a cause that cannot reasonably be addressed during the ordinary trial and appellate proceedings. In other words, Civ.R. 60(B) is not a viable means to attack legal errors made by a trial court; rather, it permits a court to grant relief when the factual circumstances relating to a judgment are shown to be materially different from the circumstances at the time of the judgment."
(Internal citations omitted.)
{ } In the instant case, appellant offers no evidence to satisfy the first two prongs of the GTE test, namely, that she has a meritorious claim to present if relief is granted and that she is entitled to relief pursuant to Civ.R. 60(B)(5). If a movant fails to meet all three of the GTE requirements, the trial court should overrule a Civ.R. 60(B) motion. Vidovic v. Vidovic, Cuyahoga App. No. 81647, 2003-Ohio-1842. Rather than put forth facts suggesting that an extraordinary situation existed in her case, appellant merely reiterated her arguments in opposition to defendants' motions for summary judgment and judgment on the pleadings. These arguments could have been raised in a timely appeal, but were not. Accordingly, appellant's sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover of appellant their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas 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.
ANTHONY O. CALABRESE, JR. JUDGE
ANN DYKE, P.J., and DIANE KARPINSKI, J., CONCUR.
|