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Sutton v. Kim11/4/2005
led voluntary dismissal by the Suttons.
{ } In essence, if the voluntary dismissal would have been filed personally at the clerk's office prior to summary judgment being granted, the court would have lacked the jurisdiction and ability to rule on the appellee's motion for summary judgment, thereby proving a meritorious claim against such judgment. In the event of a properly filed Civ.R. 41(A) dismissal, the court would then lack both subject matter and personal jurisdiction as there would be no pending case.
{ } I assert that the Suttons satisfied the first prong of the definition of a meritorious defense as outlined and required in GTE Automatic Electric.
{ } The second prong of the GTE test requires the Suttons to demonstrate that they are entitled to relief on one of the grounds set forth in Civ.R. 60(B)(1) through (5).
{ } I believe the Suttons were entitled to relief from judgment under the "excusable neglect" provision of Civ.R. 60(B)(1) and also under the catchall provision of Civ.R. 60(B)(5). "The term 'excusable neglect' is an elusive concept which has been difficult to define and apply." Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 21. Instead, the Supreme Court of Ohio has defined "excusable neglect" in the negative and has stated that inaction of a defendant is not "excusable neglect" if it can be labeled as a "complete disregard for the judicial system." GTE Automatic Electric at 15. The Suttons' attorney, in attempting to voluntarily dismiss the plaintiff's complaint without prejudice pursuant to Civ.R. 41(A), filed a notice of dismissal via mail, with no intent to ever respond to the defendant's motion for summary judgment. In the interim, the motion for summary judgment was granted by the trial court. The Suttons' attorney by mailing the 41(A) dismissal instead of filing it personally, did not demonstrate "a complete disregard for the judicial system" and as such, committed excusable neglect.
{ } I would respectfully disagree with this court's reliance on Pearce v. Church Mut. Ins. Co., 9th Dist. No. 02CA0101-M, 2003-Ohio-3174, for the reasons enumerated above. For the foregoing reasons, I respectfully dissent from the majority's opinion.
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