Being unable to join with the majority in reconsidering and changing the nature of the judgment previously entered herein by this court, I must respectfully dissent.
There are several basic reasons why this court should not reconsider our prior decision and judgment predicated upon the arguments made for the first time in this case by new counsel for appellee Ohio National Bank: (1) the Supreme Court of Ohio has already determined that the judgment previously entered by this court in this case is not one justifying review by overruling a motion to certify; (2) the issues presented for the first time on motion for reconsideration were not raised in the trial court; (3) the movant failed to file any notice of appeal or cross-assignments of error in this case at an earlier time; (4) the movant has demonstrated no valid reason why this court should reconsider our prior decision as the majority opinion points out; (5) it is inappropriate for this court to attempt to afford a party a second opportunity to appeal to the Supreme Court after that court has overruled a motion to certify our judgment in the case.
The rationale of the majority appears to be that defendant-appellee trustee should be afforded by this court an opportunity to raise an issue in the trial court, which it failed to raise prior to judgment in that court and failed to raise upon appeal to this court.
The basic issue, which the majority would afford the trustee an opportunity to raise, is the validity of the prior judgment of the court of common pleas upon which this action is predicated. Contrary to assertions by the trustee and a reference in the majority opinion, there is nothing in the record on appeal indicating that this issue was raised in any manner whatsoever by the trustee at trial or upon appeal to this court. By its answer, the trustee denied the allegation of the existence of the judgment for past support only for want of knowledge or information. No allegation, by means of denial or affirmative defense, was raised as to the validity of any such judgment. All that appears in the record is a statement by counsel that neither the trustee nor the beneficiary was a party to the prior action. However, the pretrial statement filed on behalf of the beneficiary does not indicate validity of the prior judgment to be an issue to be determined upon this appeal. The record does not contain a pretrial statement filed by defendant trustee, and its trial brief does not raise any issue with respect to validity of the prior judgment.
The judgment in the prior case was the result of a trial at which evidence was adduced and judgment entered accordingly, even though defendant Matthews failed to appear.
At trial, counsel for defendant beneficiary Hensley did make argument in a pretrial brief and did state in his opening statement that he felt the prior judgment *Page 148 was "void" because it was in default and exceeded the prayer in the action. First, it was not a default judgment but a judgment predicated upon evidence received at a trial at which defendant Matthews failed to appear, and entry of an excessive judgment would constitute error but would not subject a judgment to a collateral attack. It is not clear as to which respect it is contended the judgment exceeded the prayer, since the judgment in this case is predicated only on a portion of the judgment in that prior case. However, Civ. R. 54(C) limits only the amount of the judgment not the validity thereof.
Although defendant Hensley did suggest in the trial court there might be some issue, the matter was not pursued further at trial, and defendant Hensley is not in privity with defendant William Matthews. Defendant trustee, however, clearly is in privity with defendant William Matthews, the initial beneficiary of the trust. Any duty of the trustee necessarily exists because of an obligation of defendant William Matthews, which under the terms of the trust should be paid for his benefit from the trust income. A clearer case of privity could not be found. The issue is not one of initial obligation of the trustee to plaintiffs but, rather, whether or not the trustee is required under the trust to make payment of defendant William Matthews' obligation of support to plaintiffs as adjudicated in the prior action. There can be no obligation of defendant trustee unless there exists an obligation of defendant William Matthews. Privity is clear.
In addition, the attempted collateral attack upon the prior judgment is an affirmative defense which is required to be set forth specifically and affirmatively in an answer pursuant to Civ. R. 8(C). Defendant trustee's answer did not raise such an affirmative defense, nor was it raised as an affirmative defense by any other party defendant, nor was any evidence presented which conceivably could be the predicate for raising the issue pursuant to Civ. R. 15(B) as having been tried with implied consent of the parties.
The basic issue involved is one which has been apparent at all times in this case. The fact that some of the support obligation predated the death of the testator was apparent. This was the sole issue raised and determined by this court upon the prior appeal. That is, we determined that the judgment against defendant William Matthews was for support of his daughter prior to October 1976, stating in our opinion:
"* * * Furthermore, the trustee has determined that it is within its discretion to pay present and future child support, refusing only to pay the arrearage. It is inconsistent for the trustee to maintain that it would not be in its discretion to pay child support for the earlier period where such payment does not place in jeopardy the beneficiaries' interest in the trust. * * *"
By this language, we determined the precise issue.
In addition, as noted by the majority, defendant trustee failed to file either a cross-appeal or a cross-assignment of error. No affirmative relief from the judgment of the trial court can be afforded defendant trustee in accordance with Parton v. Weilnau (1959), 169 Ohio St. 145 [8 O.O.2d 134]. A cross-assignment of error may, however, be asserted defensively so as to prevent a reversal of a judgment. The majority permits the motion to reconsider to be considered a cross-appeal raising for the first time defensive issues in this case and then finds it to be prejudicial error for the trial court to have failed to consider these issues which were not raised by defendant trustee in the trial court in any manner whatsoever, much less an appropriate manner. In effect, therefore, the majority is holding that the trial court should have anticipated these affirmative defenses and asserted them for the trustee, which failed to assert them on its own behalf. Presumably, the *Page 149 majority does not decide these new issues injected into this case for the first time upon motion for reconsideration upon their merits, but it does grant affirmative relief to defendant trustee granting it a right to litigate an issue not raised by defendant trustee in the trial court.
In any event, I am unable to concur in the order granting the motion for reconsideration. Assuming there to be valid issues which defendant trustee failed to raise in the trial court, such failure to raise the issues constitutes a waiver of them, and this court should not resurrect them for a party who has failed to present proper defenses at the appropriate time. This court reversed the judgment of the trial court and remanded for further proceedings consistent with our decision. Whether or not these issues can be raised on remand is not an issue before us at this time. Our order is clear, as is our original decision. We did not determine any issue with respect to the amount of the prior judgment because none was raised on appeal. If there be an error in the amount, defendant trustee must pursue some other remedy, if any be available, but should not be permitted to raise the issue for the first time on motion for reconsideration where the issue was neither raised nor determined in the trial court. Rather, the motion should be directed to the discretion of the trial court upon remand, not determined by this court upon a motion for reconsideration after the Supreme Court has declined to review the issues.
Accordingly, I respectfully dissent and would overrule the motion to reconsider.
(No. 80AP-841 — Decided April 1, 1982.) ON FURTHER RECONSIDERATION