dissenting. For the following reasons I am compelled to respectfully dissent.
The majority correctly points out that to sustain a Civ. R. 60(B) motion a three-part test must be fulfilled. The trial court conceded all but one facet of that test—whether a meritorious claim or defense was presented.
The basis for the trial court’s belief, as it stated in its opinion, was: “* * * [I]f the ‘Agreed Judgment Entry’ had not been entered by the Court and approved by counsel on April 15,1982, the case would have proceeded to trial on April 19, 1982. At trial, the City would surely have produced Ms. Park as its expert witness and her testimony at that time would have been that $553,673.74 represented a reasonable relocation figure based upon plaintiffs’ claims.” The city, however, through the affidavit of a second expert, William Von Klug, and the subsequent reconsideration by Park, demonstrated that the trial court’s assumption was erroneous—a far smaller relocation expense figure would have been presented. As a number of my colleagues in the majority agreed, by their respective concurrences in the case of Colley v. Bazell (1980), 64 Ohio St. 2d 243, “[t]he *394movant’s burden is to allege a meritorious defense, not to prevail with respect to the truth of the meritorious defense.” Id. at 247, fn. 3. Even if, arguendo, we accept that the city is liable for some relocation expense, the allegation has been made and supported that the relocation figure was substantially inflated. The burden of Colley to allege a meritorious defense has been met by the city and it was clearly erroneous for the trial court to make assumptions beyond the allegations presented when evidence was properly adduced to the contrary.
Moreover, from the standpoint of public policy, I might agree to the general principle that an attorney’s actions be imputed, in some instances, to a client to the extent that the general issue of liability is determined. It is, however, difficult for me to accept the majority’s proposition that the amount of liability also be attributed without legal recourse from incompetent or consciously malicious counsel to the client. What good is a malpractice claim, the majority’s suggested means of redress, against a judgment-proof “attorney” with only thousands of dollars in legal malpractice insurance coverage who could not pay for millions of dollars of potential settlement expenses incurred by acts of spite, malice, or incompetence? Additionally, I see no reason for this court to give the appellants herein a windfall in lieu of a just and reasonable settlement established through due process of law. Apparently, summary judgment is appropriate, regardless of the facts, against defendants and yet inappropriate, regardless of the facts, for plaintiffs. See, e.g., Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51, 56 (Locher, J. dissenting). I think it is sufficient to impute the question of liability from attorney to client under some circumstances, but it is unjust, unreasonable, and potentially dangerous to allow the amount of liability to stand where a genuine issue has been raised as to the propriety of the amount. I would therefore affirm the court of appeals.
Holmes, J., concurs in the foregoing dissenting opinion.