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Sutton v. Kim11/4/2005
{ } In this accelerated calendar appeal, appellants, Dorene and Victor Sutton ("the Suttons"), appeal the judgment entered by the Trumbull County Court of Common Pleas. The trial court denied the Suttons' motion to vacate the court's prior entry of summary judgment in favor of appellee, C. Kim, M.D. ("Dr. Kim").
{ } In March 2003, the Suttons filed a complaint alleging medical malpractice against Dr. Kim, Trumbull Memorial Hospital, and several unknown defendants. On January 22, 2004, Dr. Kim filed a motion for summary judgment. That day, the trial court issued a judgment entry, which provided that responses to Dr. Kim's motion for summary judgment were to be filed by February 23, 2004. In addition, the entry provided "Memo MSJ SET 3/5/04." The Suttons sought additional time to respond to Dr. Kim's motion for summary judgment. On February 20, 2004, the trial court granted the Suttons twenty-eight additional days to respond to Dr. Kim's motion for summary judgment, thereby giving them until March 22, 2004 to file their response.
{ } On February 27, 2004, Trumbull Memorial Hospital sought leave to file a motion for summary judgment. The trial court granted the hospital's motion. In the same judgment entry, the trial court ruled " esponses to be filed by 4/12/04. Memo MSJ reset to 4/16/04."
{ } On March 26, 2004, the trial court granted Dr. Kim's motion for summary judgment. In its judgment entry, the court noted that no response had been filed. On March 29, 2004, the Suttons filed a notice of voluntary dismissal without prejudice. The Suttons claim this notice was mailed to the Trumbull County Clerk of Courts' Office on March 23, 2004.
{ } On April 9, 2004, the Suttons filed a motion to vacate the trial court's March 26, 2004 judgment entry pursuant to Civ.R. 60. In addition, the motion requested an oral hearing. Dr. Kim filed a motion in opposition to the Suttons' motion to vacate. On May 10, 2004, the trial court denied the Suttons' motion to vacate without holding a hearing.
{ } The Suttons timely appealed the trial court's May 10, 2004 judgment entry. On appeal, they raise the following assignment of error:
{ } "The trial court abused its discretion by denying plaintiff-appellant's motion to vacate judgment and request for an oral hearing, resulting in severe prejudice to the plaintiff [sic.]"
{ } "A reviewing court reviews a trial court's decision on a motion for relief from judgment to determine if the trial court abused its discretion." "'The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.'"
{ } Relief from judgment may be granted pursuant to Civ.R. 60(B), which states, in 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); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct or 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 not longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment."
{ } "To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has
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