Blasco v. Mislik

Ohio Supreme Court

Blasco v. Mislik

433 N.E.2d 612, 69 Ohio St. 2d 684, 23 Ohio Op. 3d 551, 1982 Ohio LEXIS 629

CourtOhio Supreme Court

DecidedMarch 9, 1982

DocketNo. 81-616

StatusPublished

Cited by133 cases

This text of 433 N.E.2d 612 (Blasco v. Mislik) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blasco v. Mislik, 433 N.E.2d 612, 69 Ohio St. 2d 684, 23 Ohio Op. 3d 551, 1982 Ohio LEXIS 629 (Ohio 1982).

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Opinions

Per Curiam.

A party seeking relief from a default judgment pursuant to Civ. R. 60(B) must show (1) the existence of a meritorious defense, (2) entitlement to relief under one of the grounds set forth in the rule, and (3) that the motion is made within a reasonable time. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St. 2d 146. In the instant case, the appellant has failed to allege operative facts which meet the second and third requirements of this test.

Civ. R. 60(B) is a remedial rule and should be liberally construed, Colley v. Bazell (1980), 64 Ohio St. 2d 243, 248. Nevertheless, absent a showing of one of the grounds for relief set forth in Civ. R. 60(B)(1) through (5), duly entered default judgments must be accorded a degree of finality. As noted in GTE Automatic Electric, supra, at pages 149-150, “[Regardless of whatever else may be said of a default judgment, it is a judgment. It is as good as any other judgment. It is a final determination of the rights of the parties.”

Here the movant showed none of the grounds enumerated in Civ. R. 60(B)(1) through (4) nor “any other reason justifying relief from the judgment.” Civ. R. 60(B)(5). In attempting to explain her failure to timely answer the complaint, the movant claimed only that judgment never should have been granted against her, that the complaint was “precatory,” and that she “never anticipated that * * * [the] court would render a judgment against the Defendants.” The appellant also contends [686]*686that the court should not have awarded attorney’s fees of $1,450 to the plaintiffs.

These contentions merely challenge the correctness of the court’s decision on the merits and could have been raised on appeal. Rule 60(B) relief, however, is not available as a substitute for appeal, see Colley v. Bazell, supra, nor can the rule be used to circumvent or extend the time requirements for filing an appeal. Town & Country Drive-In Shopping Centers, Inc. v. Abraham (1975), 46 Ohio App. 2d 262, 266. In the instant cause, the defendants simply disregarded or ignored their obligation under the Civil Rules to timely present their defenses.

Nor does a lapse of nearly two years constitute a “reasonable time” within which to seek Rule 60(B) relief absent unusual circumstances not present in this case.

Because the movant failed to allege any reason justifying her failure to timely answer the complaint, and because her Rule 60(B) motion was not made within a reasonable time, the trial court did not abuse its discretion in failing to grant relief from the default judgment.

Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

W. Brown, Sweeney, Holmes and Krupansky, JJ., concur. Celebrezze, C. J., Locher and C. Brown, JJ., dissent.

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Per Curiam.

A party seeking relief from a default judgment pursuant to Civ. R. 60(B) must show (1) the existence of a meritorious defense, (2) entitlement to relief under one of the grounds set forth in the rule, and (3) that the motion is made within a reasonable time. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St. 2d 146. In the instant case, the appellant has failed to allege operative facts which meet the second and third requirements of this test.

Civ. R. 60(B) is a remedial rule and should be liberally construed, Colley v. Bazell (1980), 64 Ohio St. 2d 243, 248. Nevertheless, absent a showing of one of the grounds for relief set forth in Civ. R. 60(B)(1) through (5), duly entered default judgments must be accorded a degree of finality. As noted in GTE Automatic Electric, supra, at pages 149-150, “[Regardless of whatever else may be said of a default judgment, it is a judgment. It is as good as any other judgment. It is a final determination of the rights of the parties.”

Here the movant showed none of the grounds enumerated in Civ. R. 60(B)(1) through (4) nor “any other reason justifying relief from the judgment.” Civ. R. 60(B)(5). In attempting to explain her failure to timely answer the complaint, the movant claimed only that judgment never should have been granted against her, that the complaint was “precatory,” and that she “never anticipated that * * * [the] court would render a judgment against the Defendants.” The appellant also contends [686]*686that the court should not have awarded attorney’s fees of $1,450 to the plaintiffs.

These contentions merely challenge the correctness of the court’s decision on the merits and could have been raised on appeal. Rule 60(B) relief, however, is not available as a substitute for appeal, see Colley v. Bazell, supra, nor can the rule be used to circumvent or extend the time requirements for filing an appeal. Town & Country Drive-In Shopping Centers, Inc. v. Abraham (1975), 46 Ohio App. 2d 262, 266. In the instant cause, the defendants simply disregarded or ignored their obligation under the Civil Rules to timely present their defenses.

Nor does a lapse of nearly two years constitute a “reasonable time” within which to seek Rule 60(B) relief absent unusual circumstances not present in this case.

Because the movant failed to allege any reason justifying her failure to timely answer the complaint, and because her Rule 60(B) motion was not made within a reasonable time, the trial court did not abuse its discretion in failing to grant relief from the default judgment.

Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

W. Brown, Sweeney, Holmes and Krupansky, JJ., concur. Celebrezze, C. J., Locher and C. Brown, JJ., dissent.

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Bluebook (online)

433 N.E.2d 612, 69 Ohio St. 2d 684, 23 Ohio Op. 3d 551, 1982 Ohio LEXIS 629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blasco-v-mislik-ohio-1982.

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