[Cite as Smith v. Gilbert, 2015-Ohio-444.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
JODY J. SMITH :
: Appellate Case No. 2014-CA-81
Plaintiff-Appellant :
: Trial Court Case No. 13-CVF-277
v. :
: (Civil Appeal from
ANGELA GILBERT : Clark County Municipal Court)
:
Defendant-Appellee :
:
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OPINION
Rendered on the 6th day of February, 2015.
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JAMES D. MILLER, II, Atty. Reg. No. 0088136, 6316 Far Hills Avenue, Dayton, Ohio
45459
Attorney for Plaintiff-Appellant
SCOTT BISSELL, Atty. Reg. No. 0085229, 5455 Paddington Road, Centerville, Ohio
45459
Attorney for Defendant-Appellee
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HALL, J.
{¶ 1} Jody J. Smith appeals from the trial court’s denial of his Civ.R. 60(B) motion
for relief from judgment.
{¶ 2} In his sole assignment of error, Smith contends the trial court erred in
denying his motion. Specifically, he claims the trial court erred in failing to find grounds for
relief from judgment under Civ.R. 60(B)(5) where his attorney was suspended from the
practice of law and, therefore, did not appear for trial or request a continuance, resulting in
a final judgment for appellee Angela Gilbert.
{¶ 3} The record reflects that Smith filed a municipal-court complaint against
Gilbert in which he sought the return of a $4,000 engagement ring (or the cash value of
the ring) and the repayment of a $4,000 loan. Gilbert filed a counterclaim in which she
sought $5,542.60 due to Smith’s allegedly unlawful repossession of her van.
{¶ 4} The case proceeded to a scheduled bench trial on November 5, 2013. Gilbert
and her attorney, Scott Bissell, appeared for trial, but neither Smith nor his attorney,
Wilfred Potter, appeared. After noting the absence of Smith and his attorney, the trial
court made the following record:
* * * [At] about 11:30 or 11:40 this morning, Mr. Potter came to the
Court and indicated that he had just learned that his license was suspended
for failing to pay his registration fee. Mr. Potter was advised to contact you,
Mr. Bissell[,] and to contact his client as well. The Court did not direct the
Plaintiff, Mr. Smith, not to appear today. The Court has had no
communications with Mr. Smith.
(Trial Tr. at 3).
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{¶ 5} Gilbert’s counsel, attorney Bissell, then made the following record regarding
his communication with Smith’s counsel:
* * * I was back at my office around noon [today], and I got a voice
mail that said that, from his secretary that said that there was an emergency
and that the hearing was not going forward.
My client had contacted the court and advised me that there had
been no motion to continue or anything else, or no, no ruling on that so I
came prepared to try this case, Your Honor. And if I may, I would like to
enter an oral motion to dismiss the Plaintiff’s claim and to grant default
judgment on the Defendant’s counterclaim. This trial date has been
scheduled for quite some time. Mr. Potter and Mr. Smith both had ample
notice of this situation. Mr. Potter’s being suspended, I think, you know, his
client had the option to come to the court and ask for a continuance which I
suspect that this court would grant, if he did that.
(Id. at 4).
{¶ 6} The trial court declined to grant a default judgment on the counterclaim but
allowed Gilbert to testify in support of it. Based on her testimony, the trial court entered
judgment in her favor on the counterclaim for $5,542.60. It also dismissed Smith’s
complaint with prejudice. (Id. at 9; see also Doc. # 15).
{¶ 7} Following the trial court’s November 2013 judgment entry, Smith filed a pro
se April 2014 motion for relief from judgment. (Doc. #22A). In an accompanying
memorandum, he alleged that Potter’s secretary had told him on the day of trial “that Mr.
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Potter had a personal matter and that our court date would be postponed.” (Doc. #22D).
Smith argued, among other things: “I feel that my attorney abandoned me and that I ask
the court to consider this as reason one to enact a Rule 60(B).” (Id.).
{¶ 8} The trial court held a June 10, 2014 hearing on Smith’s Civ.R. 60(B) motion.
Smith appeared for the hearing pro se. Gilbert appeared with her attorney. Smith
reiterated his claim that Potter’s secretary had told him on the morning of trial that Potter
had a personal matter and that the trial would be continued. (Motion Transcript at 6).
Gilbert’s attorney, Scott Bissell, opposed the motion. He acknowledged receiving
essentially the same message from Potter’s office on the morning of trial. (Id. at 5). He
argued, however, that Potter’s “neglect” did not justify relief from judgment. Rather,
Bissell argued that the proper course of action was for Smith to file a malpractice suit
against Potter. (Id.). After hearing the parties’ arguments, the trial court found no grounds
for relief under Civ.R. 60(B). Addressing Smith, the trial court explained:
* * * You selected Mr. Potter to represent you in this case and you
brought this action.
* * * And then on the day and time of the trial, you weren’t here, nor
was Mr. Potter here. This trial took place on November the 5th. Notice of
that trial date went out three months before. This case was set for trial on
August the 6th. What Mr. Bissell says is accurate. Your lawyer neglected
you here, but it’s not a basis under which the court can set aside this
decision.
You have other remedies, but they are not this court vacating this
decision. You chose your lawyer and it appears that’s what got you here
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today. * * *
Miss Gilbert and her lawyer were here pursuant to the notice that the
court sent out. I don’t have any reason to doubt what you say Mr. Potter’s
secretary told you, but that doesn’t change the fact that this case was set for
trial, had been set for trial ninety days in advance; and when the trial day
and time came, half the case was here and the case---the half that caused
the case to be filed in the first place was not. So the court met its obligation
on November 5th. It heard evidence and rendered a decision. And based on
the information you’ve provided today, you haven’t satisfied what Civil Rule
60(B) requires in order for the court to vacate the decision in this case.
So the decision stands and Mr. Smith, as I’ve indicated and as Mr.
Bissell has suggested, you’re free to pursue other remedies but this
decision stands.
(Id. at 7-8).
{¶ 9} The trial court followed its oral ruling with an entry denying Smith’s motion. In
its entry, the trial court stated that “while the defendant [sic—the plaintiff] may have
received inaccurate advice from the lawyer who previously represented him, he has not
demonstrated grounds for the Court to vacate its judgment.” (Doc. #26).
{¶ 10} On appeal, Smith (now represented by new counsel) claims he was entitled
to relief from judgment under Civ.R. 60(B)(5) on the basis of abandonment by his
attorney. In response, Gilbert maintains that the present case does not present an
extraordinary situation to which Civ.R. 60(B)(5) applies. She argues that the remedy for
Smith’s attorney’s conduct is a malpractice action. Finally, even if grounds for relief from
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judgment under Civ.R. 60(B)(5) do exist, Gilbert claims Smith cannot satisfy other
requirements for relief from judgment.
{¶ 11} Civil Rule 60(B) allows parties to be relieved from final orders or judgments
on the following grounds:
(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 Rule 59(B); (3) fraud
(whether heretofore denominated intrinsic or extrinsic), misrepresentation
or other misconduct of 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 no longer equitable that the
judgment should have prospective application; or (5) any other reason
justifying relief from the judgment.
{¶ 12} “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.” GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47
Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. “These
requirements are independent and in the conjunctive; thus the test is not fulfilled if any
one of the requirements is not met.” Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d
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914 (1994). We review the disposition of a Civ.R. 60(B) motion for an abuse of discretion.
Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). “‘Abuse of discretion’ has
been defined as an attitude that is unreasonable, arbitrary, or unconscionable.” (Citation
omitted.) AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is unreasonable if there is no
sound reasoning process that would support that decision.” Id.
{¶ 13} With the foregoing standards in mind, we conclude that the trial court acted
unreasonably, and therefore abused its discretion, in denying Smith’s motion on the basis
that he had not demonstrated grounds for relief under Civ.R. 60(B). In reaching this
conclusion, we recognize that “[a]s a general rule, the neglect of a party’s attorney will be
imputed to the party for the purposes of Civ.R. 60(B)(1).” GTE Automatic Elec. at
paragraph four of the syllabus. The rationale for this rule is that a client voluntarily
chooses his attorney and cannot avoid the consequences of his chosen agent’s acts or
omissions. Id. at 152-153. This does not preclude the possibility, however, “that in an
appropriate case other factors may also be present that entitle a party to relief under other
sections of Civ.R.60(B)[.]” Id. at 153.
{¶ 14} In Whitt v. Bennett, 82 Ohio App.3d 792, 613 N.E.2d 667 (2d Dist.1992),
this court reasoned that an attorney’s neglect, including failure to attend a hearing,
constituted inexcusable neglect and did not justify granting the client relief from judgment
under Civ.R. 60(B)(1), which applies to mistake, inadvertence, surprise, and excusable
neglect. Id. at 796-797. Consistent with GTE Automatic Elec., however, this court also
recognized that such inexcusable neglect might fit within the scope of Civ.R. 60(B)(5)
because of its extraordinary nature. Id. at 797. This court reasoned: “Appellants
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demonstrated through their affidavits that their attorney abandoned his representation of
them. Such conduct, depending on the facts and circumstances, may constitute one of
those ‘other factors’ that take the motion out of Civ.R. 60(B)(1) and entitle a party to relief
under another section of Civ.R. 60(B), GTE Automatic Elec. v. ARC Industries, supra, in
this case, under section (5).” Id. This court then added:
We further conclude that the trial court erred in holding that the
conduct of an attorney must be imputed to his client for purposes of Civ.R.
60(B). That requirement has been made concerning Civ.R. 60(B)(1). GTE
Automatic Elec. v. ARC Industries, supra; * * *. The grounds contemplated
in that rule are ordinary in nature. The requirement has not been extended
to the extraordinary circumstances contemplated in Civ.R. 60(B)(5). Upon a
review of the facts and circumstances the court may find that the client is
responsible for some measure of the failures concerned. However, fault
should not automatically be imputed when an attorney has grossly
neglected a diligent client’s case and misleads the client to believe that his
interests are being properly handled.
Id. at 797-798.
{¶ 15} Consistent with Whitt, other courts have recognized that an attorney’s
abandonment of a client may constitute an extraordinary circumstance justifying relief
under Civ.R. 60(B)(5). See, e.g., Melton v. Melton, 1st Dist. Hamilton No. C-130123,
2013-Ohio-4790, ¶ 13 (“In order for an attorney’s conduct to fall outside the purview of
Civ.R. 60(B)(1), and to be considered an extraordinary circumstance contemplated by
Civ.R. 60(B)(5), the conduct must ‘reveal[ ] a complete disregard for the judicial system.’
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[Citation omitted]. In other words, the attorney’s conduct must be egregious; for example,
conduct rising to the level of abandonment.”); Parts Pro Auto. Warehouse v. Summers,
2013-Ohio-4795, 4 N.E.3d 1054, ¶ 23-24 (8th Dist.) (finding that counsel’s “gross
neglect,” which included failure to appear for a hearing, constituted abandonment and
required relief under Civ.R. 60(B)(5)); Robinson v. Miller Hamilton Venture, LLC, 12th
Dist. Butler No. CA2010-09-226, 2011-Ohio-3017, ¶ 19 (“This court and others have
recognized that certain circumstances of egregious conduct on the part of counsel, such
as the abandonment of a client’s case, may remove a motion from the purview of Civ.R.
60(B)(1) and entitle a party to relief under subsection (B)(5).”).
{¶ 16} In Mayor v. WCI Steel, Inc., 11th Dist. Trumbull No. 200-T-0054, 2001 WL
276976 (March 16, 2001), the Eleventh District determined that “[a]bandonment would
occur if the attorney were prohibited from practicing law by a disciplinary committee * * * in
which case the client would be without scienter.” That is what occurred here. Smith’s
counsel engaged in gross neglect that rose to the level of abandonment by being
suspended from the practice of law shortly before trial. According to the uncontroverted
statements made at the hearing on Smith’s motion, his counsel also misled him into
believing that a continuance would be granted and that his interests, therefore, were
being handled properly. None of the statements made by Smith or counsel for Gilbert
suggest any fault whatsoever on Smith’s part. Notably, the trial court found no “reason to
doubt” Smith’s claims about what had occurred, and Smith’s recitation of what his
attorney told him was consistent with Gilbert’s counsel’s version of events. In our view,
the present case presents a textbook example of an extraordinary circumstance where
the interests of justice warrant relief under Civ.R. 60(B)(5). The trial court, therefore, acted
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unreasonably and abused its discretion in finding no grounds for relief under Civ.R.
60(B).1
{¶ 17} In opposition to the foregoing conclusion, Gilbert contends Smith “should
have sought relief from the trial court as soon as he was made aware that the trial had
taken place without him.” (Appellee’s brief at 8). In particular, she suggests elsewhere in
her brief that Smith could have requested a continuance, filed a motion for
reconsideration, requested relief from judgment, or filed a direct appeal. (Id. at 5). We find
these arguments unpersuasive. It was too late for Smith to request a continuance after
the November 2013 trial. Moreover, as noted above, Smith’s attorney told him the trial
would be continued. Smith had no reason to believe otherwise. With regard to
reconsideration, any such motion after the trial court’s judgment would have been a
nullity. S. Christian Leadership Conf. v. Combined Health Dist., 191 Ohio App.3d 405,
2010-Ohio-6550, 946 N.E.2d 282, ¶ 37 (2d Dist.) (recognizing that a motion for
reconsideration after final judgment is a nullity). As for seeking relief from judgment, that
is precisely what Smith did when he filed his Civ.R. 60(B) motion. Finally, a direct appeal
would not have been effective because the testimony presented at the trial held in Smith’s
absence supports the trial court’s judgment. The only question is whether extraordinary
circumstances warrant granting Smith relief from that judgment. Smith could not have
raised that issue in a direct appeal.
{¶ 18} Gilbert also argues that the trial court properly denied relief from judgment
1
In reaching this conclusion, we recognize that Smith’s pro se motion specifically
referenced Civ.R. 60(B)(1), which did not apply due to the inexcusable nature of his
attorney’s neglect. In his accompanying memorandum, however, Smith explicitly argued
that his attorney’s actions constituted abandonment, which as noted above, constitutes
grounds for relief under Civ.R. 60(B)(5).
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even if grounds for such relief exist under Civ.R. 60(B)(5). This is so, Gilbert claims,
because Smith failed to satisfy the other two requirements for Civ.R. 60(B) relief---namely
that he demonstrate the existence of a meritorious defense or claim and show that he filed
his motion within a reasonable time. We decline to decide whether Smith met these two
additional requirements. The sole basis for the trial court’s denial of his motion was his
failure to establish grounds for relief under Civ.R. 60(B)(1) through (5). The trial court did
not address whether Smith had demonstrated a meritorious claim or defense. Nor did it
decide whether he had filed his motion within a reasonable time. Because these matters
are committed to a trial court’s sound discretion, we will leave it to the trial court to
address them in the first instance on remand. We hold only that the trial court abused its
discretion in failing to find grounds for relief under Civ.R. 60(B)(5).
{¶ 19} Based on the reasoning set forth above, Smith’s assignment of error is
sustained. The trial court’s denial of Civ.R. 60(B) relief is reversed, and the cause is
remanded for further proceedings consistent with this opinion.
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FROELICH, P.J., and DONOVAN, J., concur.
Copies mailed to:
James D. Miller, II
Scott Bissell
Hon. Denise L. Moody