Medina County Courthouse

Tuesday, September 07, 2010

Judge Kimbler Decision on Motion for Relief from Judgment

Procedural History of the Case

On July 13, 2007, the Plaintiff filed her complaint and named seven defendants. One of the named defendants was Robert L. Klooz. Mr. Klooz did not file an answer to the complaint. One September 26, 2008, the Plaintiff filed a motion for a default judgment against Mr. Klooz. That motion was granted by Judge Collier on October 22, 2008, but the judgment entry that granted the default judgment did not address any of the other claims against the other defendants nor did it contain any finding that there was no just reason for delay in that entry being a final order.

On February 18, 2009, a judgment entry settling the case was signed by Judge Collier. That entry was marked as a final and appealable order. The Medina County Clerk of Court sent out notice of that entry pursuant to Civ.R. 58, notifying all parties and/or counsel of record that the dismissal entry had been filed as a final order.

On November 25, 2009, Mr. Klooz filed a motion for relief from judgment pursuant to Civ. R. 60. That motion is now before this Court for disposition.

Findings of Fact

This lawsuit is the second action that has been brought against Mr. Klooz. (¶5 of Klooz affidavit attached to the motion for relief from judgment.)

When he was served with the first lawsuit, he sent a letter to the opposing attorney and to the court explaining why he was not liable to the plaintiff. (¶6, ¶8 of the Klooz affidavit attached to the motion for relief from judgment).

In the letter filed in the first case, Mr. Klooz set forth why he believed he had no liability to the plaintiff. (¶7 of the Klooz affidavit attached to the motion for relief.).

Mr. Klooz believed that if anything more was required, someone would notify him. (¶9 of the Klooz affidavit attached to the motion for relief.)

The summons that is sent out by the Medina County Clerk of Courts informs a defendant that failure to file an answer will result in a default judgment being entered against the defendant for the amount prayed for in the complaint.

Conclusions of Law

A judgment entry that does not dispose of all the claims in a case, or does not state that there is “no just reason for delay” in the entry being a final order is not a final order. Civ. R. 54 (B).

Such order is subject to revision by the judge issuing the order anytime up until a final order is issued in the case. Civ. R. 54 (B).

A motion for relief from judgment must be filed within a reasonable time, and if the motion is being filed pursuant to Civ. R. 60 (B) (1), (2), and/or (3), not more than one year after the judgment was taken.

To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (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. See GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St. 2d 146 (Ohio 1976), Syllabus ¶ 2.

All three of the requirements must be met for the motion to be granted. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17, 20, 520 N.E.2d 564. In other words, if the movant cannot satisfy each element, relief from judgment would be improper. Bailey v. Lake Erie Educ. Computer Ass'n, 2000 Ohio App. LEXIS 5160, 11-12 (Ohio Ct. App., Lorain County Nov. 8, 2000)

Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits. See GTE Automatic Electric, Inc., supra, Syllabus ¶ 3.

“The burden is upon the movant to demonstrate that the interests of justice demand the setting aside of a judgment normally accorded finality. A mere allegation that the movant's failure to file a timely answer was due to "excusable neglect and inadvertence," without any elucidation, cannot be expected to warrant relief.” Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17, 21.

The Court of Appeals for the Ninth Appellate District, which includes Summit, Lorain, Medina, and Wayne Counties has held that courts should not waive the requirements of the Ohio Rules of Civil Procedure just because a litigant proceeds pro se. See, for example, Martin v. Wayne County Nat'l Bank Trust & Inv. Div., 2004 Ohio 4194, ¶ 16.

Where the facts and circumstances surrounding a case rise to the level of a "complete disregard for the judicial system," "excusable neglect" is necessarily precluded. See Kay v. Marc Glassman, Inc. (1996), 76 Ohio St. 3d 18, 20, 665 N.E.2d 1102; see, also, Dooley v. Lorain, 2000 Ohio App. LEXIS 4928 (Oct. 25, 2000), Lorain App. No. 99CA007487, unreported, at 5.

Although the law favors deciding cases on their merits, a court cannot set aside a default judgment on the sole assertion of a meritorious defense. Manson v. Gurney, 62 Ohio App. 3d 290, 293 (Ohio Ct. App., Summit County 1989).

“Courts will not condone or reward a party's choice to ignore the judicial process by the grant of relief pursuant to Civ. R. 60(B). See Manson, 62 Ohio App. 3d at 294”, see Morgan Adhesives Co. v. Sonicor Instrument Corp., 107 Ohio App. 3d 327, 335-336 (Ohio Ct. App., Summit County 1995).

Issues Presented

The motion for relief presents two issues:

1. Did Mr. Klooz file his motion for relief under the time limits prescribed in Civ. R. 60 (B); and

2. Did he show “excusable neglect” or “inadvertence” as those terms are used in Civ. R. 60 (B)?


With respect to the two issues listed above, this Court finds that:

1. Mr. Klooz did file his motion for relief from judgment within the time limits set forth in Civ. R. 60 (B); and

2. Mr. Klooz did not show “excusable neglect” or inadvertence as those terms are used in Civ. R. 60 (B).


Ms. Perkins argues that since Judge Collier signed the judgment entry granting her a default judgment against Mr. Klooz in October of 2008 and since Mr. Klooz did not file his motion for relief until December of 2009, he failed to file it within one year of the date of the entry. Her argument, however, overlooks the fact that the entry signed by Judge Collier was not a final order. Therefore, under Civ. R. 54, Judge Collier could have rescinded that order at anytime up until the date that the settlement entry was journalized.

This Court finds that if a judge issues a judgment entry that is a default judgment, but does not make that a final order, then the issuance of that order does not trigger the running of the one year period for filing a motion under Civ. R. 60. This Court further finds that in this case that when a default judgment is taken against one defendant and the entry is not a final order, but then at a subsequent time a final order is put on disposing of the claims against the remaining defendants, the time period in which the defaulting defendant may file a motion for relief starts to run upon the filing of the second and final order.

If this was the only issue raised by the Defendant’s motion for relief, this issue would be quickly resolved, but it is not. The second issue is somewhat harder to decide because of the tension between two principles. The first is that disputes should be decided on the merits, and the second is that there should be finality of judgment so that parties involved in litigation can get on with their lives.

Civ. R. 60 (B) is the way that the Ohio Rules of Civil Procedure balance these two interests. On the one hand the existence of the rule is an recognition that there are times when judgments have to be set aside. On the other hand, requiring parties to bring such motions within a certain time frame and requiring them to show that the reason why the judgment was entered was due to “excusable neglect” or inadvertence means that trial courts have discretion to grant such motions. It also means that final judgments won’t be easily set aside.

In the Ninth Appellate District, the Court of Appeals has limited the discretion of trial courts by holding that ignoring the judicial process won’t lead to the granting of relief from otherwise final judgments. If a litigant chooses to ignore the judicial process, he or she does so at his or her peril.

In this case, Mr. Klooz did ignore the judicial process. Although he apparently filed a pro se answer in the case filed in 2006, he chose to totally ignore the effect of being served with a complaint in the 2007 case. Although he was expressly told by the language contained in the summons that a default judgment could be taken against him, he decided to ignore the proceedings and hope for the best. Consequently he should be not be surprised when his gamble leads to problematic results.

This Court finds that his explanation that he expected to be notified by the court or the attorney for the Plaintiff that he needed to take further action not to be reasonable. Indeed, the first time when he received the summons he proceeded to file an answer and did not ignore the judicial process. Inexplicably the second time he gets the notice, he chooses to ignore his obligation to file an answer.

By his own logic, he should have taken action. He states in his affidavit that he was waiting for the court or counsel to tell him whether he needed to file more pleadings. He receives a notice from the court, which arguably tells him that the court expects more information from him, but he ignores it, even though he was supposedly looking for just such a communication.

Given the facts in this case, this Court cannot find that his neglect was either excusable or inadvertent. This Court cannot find that Mr. Klooz acted pursuant to a mistake or pursuant to a surprise. Further, it does find any other reason exists to grant the motion.


Motion for relief from judgment pursuant to Civ. R. 60 (B) is denied.

So Ordered

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