A.IN THE SUPREME COURT OF OHIO

ROBERT BERRY, et al., )

)Appellees, ) Case No. 2009-1507

vs.

JAVITCH, BLOCK & RATHBONE, L.L.P.,

Appellant.

On Appeal from the Cuyahoga CountyCourt of Appeals, Eighth Appellate District

MERIT BRIEF OF APPELLANT JAVITCH, BLOCK & RAT$BONE, L.L.P.

Roger M. Synenberg, Esq. (0032517) (COUNSEL OF RECORD)Dominic J. Coletta, Esq. (0078082)Clare C. Christie, Esq. (0081134)

SYNENBERG & ASSOCIATES, L.L.C.55 Public Square, Suite 1200

Cleveland, Ohio 44113Phone (216) 622-2727Fax (216) 622-2707Email office@synenberg.com

COUNSEL FOR APPELLANT, JAVITCH, BLOCK & RATHBONE, L.L.P.

Christopher M. DeVito, Esq. (0047118) (COUNSEL OF RECORD)Alexander J. Kipp, Esq. (0081655)MoRGANsrERN, MACADAMS & DEVrro Co., L.P.A.623 West Saint Clair AvenueCleveland, Ohio 44113Phone (216) 621-4244Fax (216) 621-2951Email cdevito @mmd-law.com

and

Paul Grieco, Esq. (0064729)LANDSKRONER, GRIECO, MADDEN, LTD.

1360 West 9' Street, Suite 200

Cleveland, Ohio 44113

% CI)I!i^^1'^UI'!^I IUlE_ ()1Jf^"+ F lol

COUNSEL FOR APPELLEES, ROBERT AND DIANE BERRY

TABLE OF CON'1'ENTS

'1'ABLE OFAUTHORITIES ......................................... ........................................... ................iii

STATEMENT OFFACTS .. . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . ..................................1

ARGUIvlENT .. ... .. . .. . .. .... . . . .. ... .... .. . .. ....... .... .. .. . .. .. . . .. . .. ... . .. . .. ... . . ..... .. ... . . . ... . .. . ....5

Propositiou of Law No. l:

Where a tort clairn is rcleased by execution of a settlement agreeinent and

consent judgment entry and the releasor desires to recover more than anyonelias paid or agreed to pay for the release, the releasor of that tort claim may

not pursue a separate action for fraud in the inducement of the release, but

inust seek relief from the consent judgment and rescind the settleinentagreenient ..............................................................................................5

A. The Court of Appeals' Decision Below Disregards Well-Settled Law Set

Out by this Court that a'I'ort Claim lteleasor May Not Retain

Consideration Paid for the Release and Simultaneously Attack the

Release's Validity .........................................................................................................6

B. The Court of Appeals' Decision Similarly Dlsregards the Principle ofFinality in Litigation, Instead Establishing a Rule That a Party May

Ignore a Validly and Voluntarily Entered Settleinent Agreexnent and

Consent Judgment Without First 12emonstrating That the Ends of Justice

Would Be Better Served By Setting the Settlcment and Judgment ...................... 12

C.ON CLU SION . ..... . .. .. .. . .. .... .. ... ... ... . .. ....... .. ...... . .. . . ..... .. ...... . .. . .. . ...... .. . .. ... . . . ....17

CERTIFICATE OF SERVICE .............................................................................18

APPENDIX AppX-Pam

Notice of Appeal to the Ohio Supremc C.ourt .....................................................1

Journal Entry and Opinion of the Cuyahoga County Court of Appeals .......................3

Judgment Entry of the Cuyahoga County Court of Common Pleas ..........................19

Umeported Cases

Cyclops Corp. v. Deiriclc Petroleum, Tiac. (May 29, 1986),Coshocton App. No. 85-CA-35, unreported, 1986 WL 6446 ........................20

Javitch, Block Eisen &Rnthborae, P.L.L_ v. 7'cirget Capital

Partners, Inc., (June 29, 2006), 2006-WL-1781095, unreported,

2006 WL1781095 ......................................................................................25

Richey 13arrett Co. v. S.E.C. Corzst., Inc. (Ohio App. 8 Dist. Doc.

14, 1995), Cuyahoga App. No. 68437, unreported, 1995 WL739616 .......................................................................................30

Sako v. Ilutledge (Oct. 19, 1977), Medina App. No. 706,unreported, 1977 WL 199030 ............................................................33

Still v. Still (June 25, t996), Gallia App. No. 95CA15, unreported,1996 WL 362259 ...........................................................................37

Stone v. City qfRocky River (Oct. 31, 1985), Cuyahoga App. No.49434, unreported, 1985 WT, 8539 ......................................................41

YYeismun v. Blaushild, (Jan. 24, 2008), 2008-Ohio-219, unreportcd,2008 WL 192139 ...........................................................................45

Ohio Civ. R. 60 . . . . . .. . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .. . .. . ...53

TABLE OF ALJ'I'ILORITIES

CASES:

Abrahanasen v. Trans-State Exp., Inc. (6th Cir. 1996), 92 F.3d 425 .................................15

Babcockv. Farwell, 245 111, 14 (Ill. 1910) ............................................................... 11

Boam-d of Commrs, of Columbiana Cty. v. Samuelson (1986), 24 Ohio St.3d 62,

493 N.B.2d 245 ....................................................................... .. .-........12

Caruso-Ciresi, Inc. v. Lohinan (1983), 5 Ohio St.3d 64, 448 N.F..2d 7365 ..........................15

Cyclops Corp. v. DerrickPetroleum, Inc. (May 29, 1986), Coshocton App.No. 85-CA-35, inu'eported, 1986 WL

6446 ............................................................................................................14

Davis v. Hargett, 244 N.C. 157 (N.C. 1956) ....:................................... .....................11

Davis v. Rockavelllnternat'1 Corp. (N.D.Ohio 1984), 596 F.Supp. 780 ...............................9

Doe v. Golnick, 251 Neb. 184, 556 N.W.2d 20 (Neb. ] 996) ................... _................. 11

Economou v. Economou, 136 Vt. 611, 399 A.2d 496 (Vt. 1979) ......................................1 I

Edmondsonv. Dressman, 469 So.2d 571 (Ala. 1985) ...................................................11

Fredrickson v. Nye, (1924), 110 Ohio St.459, 144 N.E. 299 ..........................................8-9

Garcia v. California Truck Co. (Ca. 1920), 183 Cal. 767 ........................................ ......11

Gilbraith v. Ilixson (1987), 32 Ohio St.3d 127, 512 N.E.2d 956 ..................................12-13

Glover v. Louisville & N.R.Co., 10 Smith (TN) 85, 40 S.W.2d 1031 (Teru1. 1931) .................10

GTE Automatic Elec. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113........14

Haller v. Borror Corp. (1990), 50 Ohio St.3d 10, 552 N.E.2d 207 .....................5, 8, 11, 12, 13

Jacobs v. Invisible Fence Co., Inc. (6th Cir. 1999), 201 F.3d 440 ......................................8

Javitch, Block F,isen & Rathbone, P.L.L. v. Target Capital Partners, Inc. (Jtme 29, 2006),2006-WL.-1781095, unreported, 2006 WL 1781095 .............................................4

Kentueky CentralLife &AccidentIns. Co. v. Burrs, 256 Ky. 64, 75 S.W.(2d) 744

(Ky.App. 1934) . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . .. . . . . . . . . . . ...10

Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 567 N.E.2d 1291 ...................................

Osborne v. Osborne (1992), 81 Ohio App.3d 666 .......................................................1

12

5

Picklesimer v. Baltimore & Ohio R. Co., (1949), 151 Ohio St. 1, 84 N.E.2d 214 ..................6-7

Richey Barrett Co. v. B.E.C. Const., Inc. (Ohio App. 8 Dist. Dec. 14, 1995),Cuyahoga App. No. 68437, unreported, 1995 WL 739616 .....................................9

Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 520 N.E.2d564 .........................................................................................................12, 14

Sako v. Rutledge (Oct. 19, 1977), Medina App. No. 706, unreported, 1977 WL 199030.........15

Shallenberber v. Motorists Mutual Ins. Co., (1958), 167 Ohio St. 494, 150 N.E,2d 295..........7, 9

Southern Ohio Coal Co. v. Kidney (1995), 100 Ohio App.3d 661 ....................................13

Spercel v. Ster•linglbid-ustrtes, (1972), 31 Ohio St.2d 36, 285 N.E.2d 324 ...........................13

Still v. Still (June 25, 1996), Gallia App. No. 95CA15, unreported, 1996 WL 362259............15

Stone v. City of Rocky River (Oct. 31, 1985), Cuyahoga App. No. 49434, unrepotted,1985 WL 8539 .......................................................................................10

Strack v. Pelton (1994), 70 Ohio St.3d 172, 637 N.E.2d 914 ..........................................15

Stivan v. Great Northern Ry. Co., 40 N.D. 258, 168 N.W. 657 (N.D. 1918) .........................11

Taylor v. Federal Kemper Ins. Co., 534 F.Supp. 196 (W.D. Ark. 1982) .............................11

Taylor v. Haven (1993), 91 Ohio App.3d 846, 633 N.E.2d 1197 ......................................15

1'aylor v. Palmetto State Life Ins. Co., 196 S.C. 195, 12 S.E.2d 708 (S.C. 1940) ...................1 l

Triplett v. St. Amour, 444 Mich. 170 (Mich. 1993) ......................................................10

Valley v. Boston & M.R. Co., 103 Me. 106, 68 A. 635 (Me. 1907) ....................................11

Virlcan, Inc. v. Fordees Corp. (6th Cir. 1981), 658 F.2d 1106 .........................................13

1Leisman v. Blaushild, (Jan. 24, 2008), 2008-Ohio-219, unreported, 2008 WL 192139 .............9

Western & A.R. Co, v. Atkins, 141 Ga. 743, 82 S.E. 139 (Ga. 1914) .................................11

iv

Westfield Ihzs. Co. v. Galatis (2003), 100 Ohio St.3d 216, 217, 2003-Ohio-5849,797 N.E.2d 1256 ....................................................................................12

RIJLES:

Civ. R. 60 .......................................................................................4, 5, 13, 14, 15

STATEMENT OF THE CASE AND FACTS

This case arises from a claim by appellees, Robert and Diane Berry (hereinafter

collectively the "Beirys") that appellant, Javitch, Block & Rathbone, L.L.P. (hereinafter "JBR")

fraudulently and negligently provided false and/or incomplete responses to an Interrogatory

during the course of an earlier legal malpractice lawsuit.

In Jrme 2000, the Berrys filed a legal malpractice lawsuit against Javitcli, Block, Eisen &

Rathbone, P.L.L., now known as JBR, in the Cuyahoga County Court of Common Pleas. Upon

receiving service of surnmons, JBR immediately reported the lawsuit to its legal malpractice

insurance agent, who in tuni reported the claim to the managing agent for the can-ier whose

policy was then in effect, Legion Insurance Company (hereinafter "Legion"). Legion initially

provided an attorney to defend against the Ber-rys' claim under a reservation of rights.

During the pendency of that malpractice action, the Berrys served written discovery

requests, including several interrogatories. (Snpp. 11.) One of the Berrys' Interrogatories

requested "the name of insurer, type of policy/policies, policy numberh7umbers, and limits of

coverage of each and every insurance policy that may cover your alleged liability in this action,

including umbrella coverage" (hereinafter "subject Interrogatory"). (Supp. 14.) JBR responded

to the subject lnterrogatory on or about March 13, 2001, stating "Legion lnsurance

Company/Claims made policy 10-12-99 througli 10-12-00/Policy No. PL 106-572-42/Limits: $1

million per claim/$3 million aggregate." Ict However, JBR did not disclose an earlier policy

fiom Clarendon National Insurance Company (hereinafter "Clarendon") in effect from October

12, 1998 to October 12, 1999 as, by its express language, the time for reporting a claim expired

October 22, 1999. (Supp. 26, 36.) This policy was not disclosed as it was a claims-made policy,

and no claim was made during the effective dates of the policy. (Supp. 6-10.) As the time 9-or

reporting claims to trigger the Clarendon policy had long since expired, even if JBR had

idcntiCed the policy in its answei-s to [lie subject inten-ogatory and Berrys' counsel inunediately

seized upon that itifonnation, Clarendon would have owed neither coverage nor an indemnity

obligation to JBR or Berrys. (Supp. 56-58.) Thus, by the time the Berrys initiated their legal

malpractice lawsuit in June 2000, the Clarendon policy was no longer an "insurance policy that

may cover" JBR's alleged inalpractice liability and Legion was the only policy that "may have

covered" JBR's alleged rnalpraetico liability. (Supp. 63.)

Subsequent to JBR's response to the subject Interrogatory, Legion infonned JBR that

there was no coverage for the Berrys' inalpraetice claim and that it would be withdrawing the

deConse. JBR supplemented its March 13, 2001 response to the subjeet Interrogatory, stating:

°Since providing our original answer to this inteirogatory, we have been advised by

representatives of Legion Insurance Cosnpany that there is no coverage for plaintiffs' claim."

(Supp. 66-)

After attempts to prompt reconsideration of the coverage denial failed, JBR retained an

attorney to pursue litigation against the insurance agent, managing agent and carrier. (Supp. 76.)

This action was talcen as JBR believed that the coverage denial was inappropriate and in bad

faith. (Supp. 79.) Contemporaneously, JBR filed a Motion to Stay or Continue Trial and

Request for a Pretrial I-3earing in the malpractice lawsuit so that it could obtain a declaration

concerning coverage before settling or proceeding in the malpractice lawsuit. (Supp. 62.)

Attached to JBR's Motion was a copy of the correspondence from Legion denying coverage,

specifically identifying the basis for the denial, and articulating Legion's belief that JBR was on

notice of a claim prior to tlre effective date of its policy. (Supp. 64.) 17re Berrys' received and

opposed this request and the Motion to Stay or Continue Trial was denied. Id..

As JBR's attetnpt to i-esolvc the coverage issue before procceding in the malpractice

action failed, the parties agreed to resolve the malpractice action in lieu of continued litigation.

The Berrys knowingly entered into a scttlement agrceinent as they bclieved it to be in their best

interest: duo to expediency. (Supp. 87.) Although JBR maintains that Berrys' claims of

malpractice had rio merit, it likewise agreed that settlernent rnade economic sense. The parties

agreed to a unique settlement pursuant to which JBR conscntcd to judgment in the arnount of

S195,000, $65,000 ofwhich was to be paid by JBR upfront. (Supp. 90, 91.) Following

execution of the agi-eemcnt, JBR, through its attorney, was to attempt to persuade Legion to

satisfy the judgmont for ninety days. (Supp. 91-) Thereafter, the Berrys were permitted to file a

supplemental petition at their own costs in an attempt to collect the balance of the consent

judgment anomit from Legion. (Supp. 92.) By the express terms of the agreement, the parties

acknowledged Legion's denial of coveragc and refusal to defend JBR in the malpractice action.

(Supp. 90.) The settlement agreement also states:

The parties will enter into a mutual settlement and release of any and all claims,except that Plaintiffs will not release Javitch Block with respect to the amount of

the conscnt judgment, until such time as that judginent is satisfied by Legion

Insurance Compatiy or the claim against Legion Insurance Couipany for that

judgment is otherwise resolved.

It is expressly understood that under no cireumstances will .Tavitch, Block pay

Plaintiffs^ under this agreement or under any judgment on the subject claiin niore

than a total of $65, 000...

(Supp. 92-) (cinphasis added). '1'he parties executed the agreement on Decembcr 21, 2001 and,

when JBR was unable to persuade Legion to pay the balance of the judginent, the C:onsent

Judgment decree was executed and filed on April 1, 2002. (Supp. 94.)

JBR pursued litigation against its insurance agent, Leoon's managing agent and Legion.

Berrys similarly pursued Legion in a suppleinental pctition, and later amended their

supplemental petition to include claims against Clarendon. Whcn JBR's claims against the

adjusting company and Legion were dismissed upon saimnai-y judgment, JBR appealed. The

appellate coui-t determined that Legion owed no duty to defend as JBR was found to be aware

"of a potential legal malpractice claim prior to the effective date oi' the Legion policy." Javitch,

Block Eisen & Rathbotie, I'.L.L. v. Target Capital 1'ar-tners, Inc. (June 29, 2006), 2006-WL-

1781095, unreported, 2006 WL 1781095. The Berrys similarly were unsuccessful in their

supplemental petitions andultimately dismissed theii- claims against both Legion and Clarendon.

The Berrys then commcnced this action in the Cuy<ilboga Connty Court of Cornmon

Pleas, alleging fi-audulent misrepresentation, ii-audulent concealment, gross negligent

misrepresentation, and gross negligent concealmcnt against JBR. As a basis for these claims, the

Berrys alleged that, diiring the course of the inalpractice litigation, JBR twice responded to an

Tnterrogatory regarding insurance that rnay have covered the liability alleged in that action

falsely and/or incompletely. Taken together, the thrust of the Berrys' claims was that JBR's

Interrogatory responses were knowingly false and/or incomplete, made intentionally to mislead

the Berrys, and that the Berrys' idtimately relied upon the responses to their detriment. The

Berrys claim that JBR failed to identi ty the Clarendon policy - a policy it held before the Legion

policy period - in response to the subject Intenogatory.

Upon the completion of discovery, JBR moved for sanimary judgment. In its motion,

JBR assertcd that Ben-ys' claims were barred by the one-year statute of limitations applicable to

Ohio Civ. R. 60(B)(3), that Berrys' could not elect to aftirm the settlement agreement and

conseut judgtnent and independentty sue for fi-aud, and that the Berrys' could not establish the

requisite elements of their clanns. The court of common pleas granted JBR's motion for

summary judgznent, finding "[t]here are no remaining genuine issues of material fact and [JBR

is] entitled to judgment as a matter of law." The Berrys appealed the decision to the Cuyahoga

County Court of Appeals. The court of appeals reversed the judginent, finding that: (1) Ohio

Civ. R. 60(B)(3) does not apply because the Berrys could and did choose to bring a separate

action for fraud without rescinding the settlement agreement and seekiug relief frotn the eonsent

judgment entry; and (2) a material issue of fact remains as to whethcr JBR purposely withheld

the existence of the Clarendon policy.

JBR filed its notice of appeal to thc Supreme Court. of Ohio on August 20, 2009. (Appx.

1). On November 18, 2009, the Supreme CoLut of Oliio granted jurisdiction to hcar the case and

allowed the appeal.

ARGUMENT

Proposition of Law I:

Where a tort claim is released by execution of a settlement

agreement and consent jndgrnent entry and the releasor

desires to recover more than anyone has paid or agreed to pay

for the release, the releasor of that tort claim may not pursue a

separate action for fraud in the indncement of the release, but

must seek relief from the consent j udgment and rescind the

scttlenient agreement.

The decision of the court of appeals threatens the well-settled policy of law favoring the

prevention of litigation by the comproniise and settteinent of controversics. Haller v. Borror

Corp. (1990), 50 Ohio St.3d 10, 14, 552 N.E.2d 207 (citing White v. Brocativ (1863), 14 Ohio St.

339, 346). By its iuling, the court of appeals disregards the long-standing precedent of this Court

that the releasor oi' a tort claim ought not be allowed to retain the benefit of his act of

compromise and at the same time attack its validity when lie understood the nature and

consequence of his act, regardless of the basic nature of the inducement allcgcdly einployed. Icl.,

50 Ohio St3d at 14 (citing Shallenberget• v. Molorists Mut. Irzs. Co. (1958), 167 Ohio St. 494,

150 N.E.2d 295). Moreover, the court of appeals' decision disregards the principle of finality in

litigation, establishing a rule that a party may ignore a validly entered consent judgment of a tort

claim and pursue a new, separate cause of action. These unprecedented attacks upon well-settled

policies favor settlement and finality of jiulgments offend the precedent of this Court and require

that the court of appeals' decision be set aside.

A. The Court of Appeals' Decision Sclow Disregards the Well-Settled Law Set Out by

this Court that a Tort Claim Releasor May Not Retain Consideration Paid for the

Release and Simultaneously Attack the Release's Validity.

This Court has long prohibited separate actions for fraud in the inducemeilt of settlement

of a tort claim allowed by the court of appeals here. However, the court of appeals in this case

ruled that the releasor of a tort claim could choose to bring a separate action for fraud without

tendering back the consideration received and rescinding the release. In so doing, the court of

appeals simply ignored the well-settled law of espoused by this Court.

In Picklesimer- v. Baltimore & Ohio Il. Co., (1949), 151 Ohio St. 1, 84 N.E.2d 214, this

Court addressed whether an action for fraud in the inducement of a release may lie absent

rescission of the release and tender of the consideration paid. 'The Court distinguished between a

release that is void and one that is voidable, noting that an agreement is void when a party has

been fraudulently prevented from knowing that he or she has signed a release or its contents, and

is merely voidable when the party alleges fraud or misrepresentation as to the facts inducing the

party to settle. Id. at 5. This Court determined that, where a release is merely voidable, a claim

of fraud based on misrepresentations inducing a settlement and release may not be maintained

without first voiding the release and tendering back any consideration paid. IcG at 7.

Specifically, the Courtheld: "In [the settlement of a tort claim for dainages arising from personal

injuries] a release obtained by fraud in the inducement is voidable, and a subsequeit action may

not be maintained by the claimant without retuniing or tendering the consideration he received."

Ic7 at paragraph 2 of syllabus.

The Court reaffirmed and extended Picklesirner in Shallenberger v. Motorists Mutual Ins.

Co., (1958), 167 Ohio St. 494, 150 N.E.2d 295. In Shallenberger, the plaintifi'brought an action

for fraud related to conduct she alleged induced her to sign a release of claims for personal

injuries and damage to personal propeity arising from an automobile accident. This Court

detennined that, in order to maintain a fraud action, the plaintiff was first required to set aside

the release and tender back the consideration paid. Specifically, the Court stated:

There is usually no analogy between the situation of one induced by fraud torelease a tort claim and one induced by fraud to buy something. Obviously, in acase like the instant case, the releasor of a tort claim buys nothing, although hemay receive sometl-ing, usually money or its equivalent, for what he relinquishes.He does give up sometliing (i.e., his tort claim), as a seller gives up what he sells.Thus, on cursory consideration, the release of a. tort claim might appear to beanalogous to a sale of something. However, where there lias been a sale ofsomething, possession of that something has usually been relinquished by theseller. Even where use of tlie sold sometliing has not made it less valuable, theseller will usually want rnoney for it as he did when he made the sale. If he takesit back, he lias to sell it to get that money. Each change of possession of thatsomething will ordinarily involve expense or inconvenience. On the other hand,the releasor has nothing to repossess on rescission of the release; and suchrescission revests him with the satne claim for money that he had before, notsomething he must resell to get that money. In reality, the releasor does not sellanything even of an intangible nature. In effect, the releasor has merely agreedfor a consideration not to enforce his tort claim. To allow the releasor to recovermore than anyone agreed to give for his tort claim, because the releasor was

induced by ftaud...is to pernait the releasor in effect to enforce part qf the tortclaim that he agreed for a consideration not to enforce...If he desires to do that,

he must set aside, not affirm, his agreement not to sue...

Id. at 501 (citing Picklesimer, 151 Ohio St. 1) (emphasis added).

The Court again considered Ilie sanie question in Haller, 50 Ohio St.3d 10, 552 N.E.2d

207. Ilaller arose fi-ol-ri a claitn for breach of a contract of employnient. The plaintiff alleged

that he was induced to settle his claini based upon false t1u-eats by his foriner employer affecting

the value of his claim. The Court again conclnded that, when inisrepresentations by a party

induce another to settle a claim on allegedly unfavorable terms, the agreement is not void, but

merely voidable, and can becontested only after rescission and tender of consideration:

A release of a caa se of action for damages is ordinarily an absolute bar to a lateraction on any clain2 encompassed within the release... To avoid that bar, thereleasor must allege that the release was obtained by fraud and that he hastendered back the consideration received for his release...A release of liabilityprocured througll fi-aud in the induceirient is voidable only, and can be contestedonly after a return or tender of consideration. Cases of fraud in the niducement

are those in which the plvntiff; while admitting that he released his claim fordamages and received a consideration therefore, asseits that he was induced to doso by the defendant's fraud or misrepresentation. The $aud relates not to thenature or purport of the release, but to the facts inducing its execution, as, forinstance, where there is a misrepresentation as to the nature or extent of theplaintiff's injtu-ies."'

Id. at 14 (internal citations omitted); See also Jacobs v, Invisible Fence Co., Iiic. (6th Cir. 1999),

201 F.3d 440 ("[T]he specific Ohio rule governing releases must be applied instead of the

general contractnal rule peimitting election ofremedies.").

The court of appeals' decision here fundamentally contradicts this entire line of cases and

rendeis this well-settled precedent meaningless. Rather than apply the

Picklesirner/Shallenbergerlllaller line of cases that govern the rights and remedies of a tort

releasor alleging fraud in the inducement of their release, the court of appeals instead relied upon

Fredrickson v. Nye, (1924), 110 Ohio St.459, 144 N.E. 299, to find that a tort releasor could elect

to bring a separate cause of action for fraud iathei- than reinstate their underlying tort claim after

tendering back the consideration paid ior the release and rescinding the settlement agreement and

consent judgment. The court of appeals' error is self-evident.

Fredriclcson sets forth Ohids doctrine of election of remedies:

An election of remedial riglrts is a choice made with knowledge between twoinconsistent substantive rights, either of which inay be instituted at the instance ofthe chooser, who cannot, however, enjoy both. Such an election goes not to thefonn, but to the substance, affecting sonie right of title selected. Such a choice,therefore, discards the alternative inconsistent right or claim.

FredericlGson, 110Ohio St. at 466. For the doetrine of election of remedies to apply, at least two

remedies must exist at the saine time from which the party claiming the remedial rights must

choose one. Richey Barrett Co. v. B.E.C. Const., Inc. (Obio App. 8 Dist. Dec. 14, 1995),

Cuyahoga App. No. 68437, um-eported, 1995 WL 739616. Election becoines applicable as a bar

to duplicity in recovery when the remedial rcmedies are inconsistent not nierely cumulative. Id.;

See Davis v. Roekwell Internat'l Corp. (N.D.Ohio 1984), 596 F.Supp. 780, 787. Yet, applying

the doctrine of election of remedies esponsed in Fredrickson in the context of a settlement

agreement and consent judgment pernuts a party to enforce part of a tort claim it agreed for

consideration not to enforce. See Shallenberger, 167 Olvo St. at 501.

Amazingly, the same court of appeals, just one year earlier in Weisman v. Blczasshild, (Jan.

24, 2008), 2008-Ohio-219, unreported, 2008 WL 192139, succinctly described this confliet

inherent in perniitting a tort releasor to atternpt a separate action for fi-aud. In Weisman, the couit

of appeals found that general contract law goveining election of rctnedies does not apply where a

party, in exchange for consideration paid, releascs its claims. Id at I¶ 30, 37. Rather, the

Weisman court fomid that the releasor must reschid and tender back the consideration paid before

bringing a new action against the releasee. Id. at 1137. Citing Picklesimer, Shallenberger, and

Haller, the court. of appeals in Weisman stated:

'1`hus, the law in Ohio governing releases is clear. Because of the release,appellants (lid not have a choice ot' remedies. Since appellant Mark Weismanagrced to the release provision in exchange for consideratiort in theComprehensive Settlement Agreement, they only had one option. 17rey first had

to rescind and tender back the consideration - be, fore they could bring their suit.

Id. at T 37; See Stone v. City of Rocky River (Oct. 31, 1985), Cuyahoga App. No. 49434,

unreported, 1985 WL 8539 (citing Sliallenberger and 1'ickle.simer and recognizing "it is firmly

established in Ohio law that a party to a release may not obtain a judgment against the other

party to that releaseconcerning thesubject matter without first returning or ten(leringbaclc the

consideration he received in return for forTeiting his clainis °').

That tort releasors are required to rescind their release and tender back the consideration

paid for that release rather than elect to file a separate cause of action for fraud finds broad

support in jurisdictions throughout the United States. Every other State in the Sixth Circuit

reeognizes and applies this principle: Michigan, Triplett i>. St. Amour, 444 Mich. 170 (Mich.

1993) (citing Sha]lenberger and finding that a plaintiff's attempt to stand upon his release an(i

stie for fraud is unsupported); Kentucky, Kentucky Cen.tral Lif'e & Accident Ins•. Co. v. Burrs, 256

Ky. 64, 75 S.W.(2d) 744, 745 (Ky.App. 1934) ("There is a general rule...that one sceking to

avoid or set aside a compromise settlement and to be remitted to his original rights mustreturn or

offer to return whatever he has received under the compromise settlement..."); and Tennessee,

Glover v. Louisville & N.IZ.Co., 10 Smith (TN) 85, 40 S.W.2d 1031 (Tenn. 1931) ("Plaintiff,

having...a suin of money paid to him by defendant, in satisfaction of the cause of action stated in

his declaration, subsequently appropriated it to his own use, and is therefore without legal excuse

for his admitted failure and inability to tender or repay such sum, which is a required condition to

his right to have the court rescind the settlement for fraud in its procurement."). Further, many

jurisdictions beyond the Sixth Circuit recognize and apply this principle. ]

Despite the well-settled and long-standing precedent of this Court, the eourt of appeals'

decision allows the relcasor of a tort claim to retain the benefit of his act of compromise wliile at

the satne timc attacking the validity of that release, even whcn the releasor understood the nature

and consequence of his act, regardless of the basic nature of the inducement employed. Ilaller,

50 Ohio St.3d at 14 (citing Shalletiberger, 167 Ohio St. 494). '1'he court of appeals held that,

despite the clear precedent of this Court to the contrary, the releasor of a legal malpractice claim

could choose to bring a separate action for frand without rescinding the settlement agreement and

seeking relief from the consent judgment entry. This holding ignores the blaclc letter law

i Jurisdictions outside of the States comprising the Sixth Circuit also recognize and follow this

principle: Edmondson v. 17ressman, 469 So.2d 571 (Ala. 1985) (a defrauded party may avoid

operation of release obtained by fraud only if tender a return of consideration within a reasonable

time after discovery of the fraud); I'aylor v. Federal Kenaper Ins. Co., 534 F.Supp. 196 (W.D.

Ark. 1982) (expressly adopting Shallenberger's reasoning and holding that a plaintiff seeking to

sue for fraudulent inducement of a release rnust set aside the release and sue for the underlying

injuries); Garcia v. California Truck Co. (Ca. 1920), 183 Cal. 767 (plaintiff could not avoid

application of rule requiring return of money paid in consi(leration for release on the ground of

fraudulent representations); iTestern &A.R. Co. v. Atkins, 141 Ga. 743, 82 S.E. 139 (Ga. 1914)

(where induced by fraud to sign release, tender back of consideration received is condition

precedent to right to sue for inji.uy); Babcock v. Farwell, 245 111. 14 (111. 1910) (a party secking

reliet' from a release induced by false representations must restore the consideration before

rescission); Valley v. Boston & M.R. Co., 103 Me. 106, 68 A. 635 (Me. 1907) (before settlement

made can be avoided, the swn received must be retunred or tendered); Doe v. Gotnick, 251 Neb.

184, 556 N.W.2d 20 (Neb. 1996) (person seeking to avoid effect of void or voidable release must

first restorc or offer to restore wliatever he or slie has received for executing release); Davis v.

Hargett, 244 N.C. 157 (N.C. 1956) (holding that plaintiff alleging settlement and release of tortclaim was induced by fi-aud rmist tcnder or return consideration and maintain the original action);

Swan v. Great Northern Izy. Co., 40 N.D. 258, 168 N.W. 657 (N.D. 1918) (party cam2ot avoid

release on ground of fraud and recover on the original cause of action unless he repays or tenders

consideration receive(l); Taylor v. 1'atnzetto State Lr.fe Ins. Co., 196 S.C. 195, 12 S.E.2d 708 (S.C.

1940) (action for fraud inducing settlement of claim could not be maintauied where plaintiff had

not repaid nor tendered consi(leration received for the compromise settlemeut); F;conomou v.

F,conom.ou, 136 Vt. 611, 399 A.2d 496 (Vt. 1979) (release is contract that bars recovery on claim

released so long as not rescinded by an offer to return consi(leration).

-11-

regarding claims for fraud in the inducement of tort claims and improperly opens settleinents and

consent judgments in tort cases to collateral attack. Such an opinion by the court of appeals

violates the time-honored principle of stare decisis, rccognized by this Court as "the be<h-ock of

the American judicial system." Westfield Ins. Co. v. Galatis (2003), 100 Ohio St.3d 216, 217,

2003-Ohio-5849, 797 N.E_2d 1256. As such, the decision below must be reversed.

B. The Court of Appeals' Decision Similarly Disregards the Principle of Finality inLitigation, Instead Establishing a Rule That a Party May Ignore a Validly andVoluntarily Entered Settlement Agreement and Consent Judgment Without FirstDemonstrating That the Ends of Justice Would Be Better Servcd By Setting theSettlement and Judginent.

The law favors the prevention of litiga on by the compromise and settlement of

controversies. Haller, 50 Qhio St.3d at 14 (citing White v. Brocaw (1863), 14 Ohio St. 339,

346); Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 69, 567 N.E.2d 1291 (citing State ex rel.

Wtight v. Weyandt (1977), 50 Ohio St.2d 194, 363 N.E.2d 1387, syllabus); Board of Commrs. of'

Columbiana Cty. v. Samuelson (1986), 24 Ohio St.3d 62, 63, 493 N.E.2d 245. Indeed, "[g]iven

the explosion of litigation so characteristic of the modem era, it is esseiitial that the settlement of

litigation be facilitated, not impeded." Krischhaum, 58 Ohio St.3d at 69.

Moreover, it is well established that courts have sought for centhn-ies to protect the

finality of judgrnents so that there might be an cnd to litigation. Ohio Civ. R. 60(B), Staff Notes

at 11 Relief from a final judgment should not be granted unless the party seeking sucll relief

makes at least a prima facie showing that the ends of jusfice will be better sei-ved by setting the

judgment aside. Rose Chevrrolet; Inc. v. Adams (1988), 36 Ohio St.3d 17, 21, 520 N.E.2d 564.

As the purpose of a consent judgrnent is to resolve a dispute without fiuther litigation, this

principle applies eqnally to judgments entered by consent of the parties:

[A]s a gencral mle, a consent judgment operates as res ja.rdicata witll the sameforce given to a. judginent entered on the merits in a fully adversarial

proceeding...lmplicit in the rule is the recognition that a judgment entered byconsent, althouglr predicated upon an agreement between the pallies, is anadjudication as effective as if the merits had been litigated and remains, therefore,just as cnforceable as any other validly entered judgment.

Gilbraith v. Hixson (1987), 32 Ohio St.3d 127, 129, 512 N.E.2d 956 (citing Sponseller v.

Sponseller (1924), 110 Ohio St. 395, 399, 144 N.E. 48). Simply put, a consent judginent is no

different from any other judgment. Southern Ohio Coal Co. v. Kidney (1995), 100 Ohio App.3d

661, 668; See Tlulcan, Inc. v. Fordees Corp. (6th Cir. 1981), 658 F.2d 1106 (finding sth-ong

public interest in achieving finality in litigation is advanced by giving res judicata effect to

consent decrees). Thus, as Civ. R. 60(B) applies to all judgments, a consent judgment is open to

Civ. R. 60(B) relief as much as any other judginent. Id.

Seeking relief from judgment pursuant to Ohio Civ. R. 60(B) is the method available tor

avoiding a voidable settlement agreement and consent judgment entry allegedly induccd by

fraud. See Haller, 50 Ohio St.3d at 14; Ohio Civ. R. 60(B), Staff Notes at 112. Indeed, this

Comt has expressly held that a party must file a motion to set aside a binding settlenient

agreement entered into in the presence of the court. hi Spercel v. Sterling Industries, (1972), 31

Ohio St.2d 36, 285 N.E.2d 324, this Court stated:

In order to effect a rescission of a binding settlenient agreement entered into in thepresence of the court, a paity must file a motion to set the agreement aside; and, inthe absence of such motion, a trial court may properly sign a journal entryreflectitig the settlement agreement.

Id. at paragraph 2 of syllabus. Indeed:

Once the settlement agreement was achieved through the efforts of the trial judge,plaintiff had a duty, if he wished to disavow that agreement, to file a motion to setit aside. To permit a party to unilaterally repudiate a settlement agrcement wouldrender the entire settlernent proceedings a nullity, even tliough, as wc havealready detennined, the agreement is of binding force.

Id. at 40.

'I'he requirements to prevail upon a request to set aside are clear. Ohio Civ. R. 60(B)

states, in pettinent part:

On motion and upon such terms as are just, the court may relieve a party or hislegal representative from a final judgment, order or proceeding for the f'ollowingreasons: (1) mistake, inadvertencc, suiprise or excusable neglect; (2) newlydiscovered evidence which by due diligence could not have been discovered intime to move for a new trial under Rule 59(B); (3) fraud (whetlzer heretofore

denominated intrinsic or extrinsi.c), misrepresentation or other misconduct of an

adverse party; (4) the judgment has been satisfied, released or discharged, or aprior judgment upon which it is based has been reversed or otherwise vacated, orit is no longer equitable that the judgment should have prospective application; or(5) any other reason justifying relief from the judgment. The motion shall bemade within a reasonable tinie, and for reasons (1), (2) and (3) not more than oneyear after the judginent, order or proceeding was entered or taken. A motionunder this subdivision (B) does not affect the finality of a judgment or suspend its

operation. The procedure for obtaining any retief firom a judgment shall be by

motion as prescribed in these rules.

(ernphasis added). While this Court liberally construes this rule with a view toward effecting just

results, it has simultaneously recognized the competing principle that litigation must be brought

to an end. Rose Chevrolet, Inc., 36 Obio St.3d at 21. Thus, to be successful, this Court has

required parties seeking relief fiom final judgnients to demoustrate three requirements: (1) that

the paaty has a rneritorious claim or defense; (2) that the party is entitled to relief under one of

the grounds stated in Civ. R. 60(B)(1) through (5); and (3) that the motion was timely presented.

GTL; Automatic Flec. v. ARC Industries, In.c. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113,

paragraph two of syllabus.

There is no autliority for the proposition that a party may unilaterally repudiate a

settlement agrecinent incorporated in a judgment of the court absent fraud or misrepresentation.

Cyclops Corp. v. Derrick Petroleum, Inc. (May 29, 1986), Coshocton App. No. 85-CA-35,

unreported, 1986 WL 6446 at *4. Where the preeniinent allegation is fiaud on the part of an

advei-se party in obtaining an agreement, a Civ. R. 60(B)(3) motion for relief froni judginent is

the proper method of obtaining relief. See Osboriae v. Osborne (1992), 81 Ohio App.Sd 666,

671. Notably, an alleged failure "to_disclose or produce material rquested in discovei^

constitute `misconduct' within the purview of 60 b 3." Abrahamsen v. Trans-State Exp., Inc.

(6th Cir. 1996), 92 F.3d 425, 428 (emphasis added).

Civ. R. 60(B) requires that a motion brought under subsection (3) be filed not more than

one year after the judgment. Tndeed, false testimony by an adverse party is intrinsic fraud and

relief sought thereon is time-barred by theone year statute of limitationsprovided by Civ. R.

60(B)(3). Sako v. Rutledge (Oct. 19, 1977), Medinra App. No. 706, unreported, 1977 WL

199030. Thus, false testimony by an adverse party constitutes fraud under Civ. R. 60(B)(3), not

Civ.R. 60(B)(5), and must be filed not more than one year after the original judgment was

entered. See Still v. Still (June 25, 1996), Gallia App. No. 95CA15, unreported, 1996 WL

362259; See also Strack v. Pelton (1994), 70 Ohio St.3d 172, 174, 637 N.E.2d 914; Taylor v.

Haven (1993), 91 Ohio App.3d 846, 849, 633 N.E.2d 1197; Caruso-Ciresi, Inc. v. Lohunan

(1983), 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (collectively noting that Civ. R. 60(B)(5) cannot

be used as a substitute for relief when anotlier more specific provision of the rule applies).

Just as with the long-standing prohibitio gainst a releasor's election of remedies when

claiming the fraudulent inducement of a settlement agreeinent, the court of appeals' decision

ignores the well-settled proposition that the only procedure for obtaining relief from a consent

judgment entry shall be by motion as prescribed by Ohio Civ. R. 60(B). This holding ignores the

evident meaning of Ohio Civ. R. 60(B), as well as this Court's rcquirement that, due to the

principle that litigation must be brought to an end, relief from a final judgment should not be

granted unless the party seeking relief makes a prirna facie showing that justice will be better

served by setting the judgment aside. Rafher, the coLut of appeals estalilishes an unprecedcnted

right of releasors to retain the benefit of a consent judgment entered in final settlement of a tort

cl.aim while pursuing a separate action against the releasee for allegedly inducing that judgment

by fraud. The court of appeal's decision permits the Berrys, who never returned the $65,000

consideration paid for release of their tort claim nor attempted to demonstrate their entitlement to

relief from the parties' consent judg}nent, to pursue an independent action for fraud in the

inducement. Moreover, it creates a iight of action on behalf of all tort claim releasors that opens

all toxt cla.im settlements and consent judgments in Ohio toattack.

CONCLUSION

The decision below is fundamentally flawed in its reasoning and dangerous in its

implications. The decision of the court of appeals threatens thc well-settled policy of law

favoring the prevention of litigation by the compromise and settlement of controversies.

Moreover, that decision disregards the principle of finality in litigation, establishing a rule that a

party may ignore a validly entered consent judginent of a tort claini and pursue a new, separate

cause of action for fraud. Such a rule sabotages the fundainental basis oftbe policy favoring

settlement and eompromise of eontroversies: it creates litigation, exponentially increases

litigation costs, and will flood already overcrowded coiu-t dookets with new lawsuits steimning

from litigation through to have been resolved.

The deeision below must be reversed.

Respectfully Submitted,

Roger M. Synenberg, Counsel of Record

COUNSEL FOR APPELLANT,7AVI"I`CH, BLOCK & RATHBONE, L.L.P.

Certificate of Service

I certify that a true and accurate copy of this Merit Brief was setit by ordinary U.S. mailto counsel for appellees, Christopher M. DeVito, Esq. and Alexander J. Kipp, Esq., Morganstern,MacAdams & DeVito Co., L.P.A., 623 West Saint Clair Avenue, Cleveland, Ohio 44113, andPaul Grieco, Esq., Landsktroner, Grieco, Madden Ltd., 1360 West 9'1' Street, Suite 200,Cleveland, Ohio 44113, on Friday, February 5, 2010. --1 //

D2tnunic J^Coletta

COUNSEL FOR APPELLANT,JAVITCH; BLOCK & RATHBONE, L.L.P.

11V' THE SUPREME COUt2.T' OF OIIIO

ROBERT BERRY, et al.,

Appellees, ) On Appeal from the Cuyahoga County

vs.

Court of Appeals, Eighth Appellate District

Court of AppealsJAVITCH, BLOCK & RATHBONE, L.L.P., ) Case No. CA 08 091723

Appellant.

NO7`ICE OF APPEAL OF APPELLANT JAVITCH, BLOCK & RATHBONE, L.L.P.

Roger M. Synenberg, Esq. (0032517) (COUNSEL OF RECORD)Dominic J. Coletta, Esq. (0078082)Clare C. Christie, Esq. (0081134)SYNENl3ERG & AS30CIATES, L.L.C.55 Public Square, Suite 1200Cleveland, Ohio 44113Phone (216) 622-2727Fax (216) 622-2707Email office@syneiberg_com

COUNSEL FOR APPE.LLANT, JAVIT'CH, BLOCK & RATI-IBONE, L.L.P.

Christopher M. DeVito, Esq. (0047118) (COUNSEL OF RECORD)Alexander J. Kipp, Esq. (0081655)MORGANSTERN, MACADAMS & DEVFTO Co., L.P.A.623 West Saint Clair AvenueCleveland, Ohio 44113Phone (216) 621-4244Fax (216) 621-2951 --- ^Email edevito a(^jmmd-law.com

F ^] L

and

Paul Grieco, Esq. (0064729)LANDSKRONER, GRIECO, IVIADDEN, LTD.1360 West 9a` Street, Suite 200Cleveland, Ohio 44113

AUG 2 0 ?009

CLERK ®rC4711RTS[IPRkME COURT oFOw1

COUNSEL FOR APPELLEES, ROBERT AND DIANE BERRY

Appx.oooo0l

Notice of Avroeal of A_ppellant Javitch Block & Rathbone.

Appellant, Javitch, Block & Rathbone, L.L.P., hereby gives notice of appeal to the

Suprem.e Cw.ut of Obio from the judgment of the Cuyahoga County Court of Appeals, Eighth

Appellate District, entered in Court of Appeals Case No. CA 08 091723 on July 6, 2009.

This case is one of public or great general interest.

Respectfully Submitted,

Roger M. Synenberg, Com}sel of Record

COUNSEL FOR APPELLANT,JAVITCH, BLOCK & RATHBONI:, L.L.P.

Certifreate of Servace

I ce-tify that a copy of this Notice of Appeal was sent by ordinary U.S. mail to counselfor appellees, Christopher M. DeVito, Esq. and Alexander J. Kipp, Bsq., Morganstern,MacAdams & DeVito Co., L.P.A., 623 West Saint Clair Avenue, Cleveland, Ohio 44113, andPaul Grieco, Esq., Landskroner, Grieco, Madden Ltd., 1360 West 9`b Street, Suite 200,

Cleveland, Obio 44113, on Thursday, Augtst 20, 2009.

COUNSEL FOR APPELLAN°I',JAVITCH, BLOCK & RATIIBONE, L.L.P.

Appx.000002

JUL 6 - 2009

^ ^^ ^^^ leaI's of (94iEIGHTIi APPELLATE I7ISTRICT

COC7NTY OP CUYAHOGA

JOUIRNA7., ENTRY AND OPINIONNo. 91723

ROBERT BERRY, ET AL.

P1.,AII3TI.FFS-APPELI. ANTS

vs.

JAVITCH, EL®C:K. & RATHBONE, L.L.P.

DEFENDANT-APPELLEE

JUDGMENT:REVERSED AND REMANDED

Civil Appeal froin theCuyahoga County Court of Cotnmon Pleas

Case No. CV-601524

BEFflRE: Kilbane, J., Gallagher, P.J., and Jones, J.

F.FLL+ ASEI}: June 25, 2009

JOURNALSZED: JUL 6 - 2009

CtV#0g6F6pI524i F {^Ig pk 5iR4520g ba

W10685 00356

Appx.000003

-i-

ATTO7tNEYS FOR APPELLANTS

Paiil GriecoI.andskroner, Grieco, Madden, Ltd.1360 West 9th StreetSuite 200Cleveland, OH 44113

Christopher M. DeVitoMorganstern, MacAdams & DeVito623 West St. Clair Avenue

OH 44113-1204Cleveland LED AND .iOURNALIZED",

A7'7.`OIi.NEY FOR APPFLLEE

R:. 22(E)PER APP.

Ji1L 6 - 2009

Roger M. Synenberg

GERALD E llERSTCLENK QF 'C FAPPEALS

aEP.gYSynenberg & Associates, LLC55 Public SquareSuite 1200

_..,,,,,

SS188430OIi 44113l dCl CA08091723an ,eve

111111111111111I ti i ll

8FCRIV60 FCp FI!-IS3G

JU^ 1 ^ ^9^9

CtERALD E. EAST^'J

F^ 9 ..r DaputY^Y a

ANd3OUNCEMENT flF DECISI014

PEBAPP. R^CEiVEDND26(Aa

Jt1N 2 5,09

PEALSC4ER11 OF

Uy

N.B. This entiry is an announcement of the court's decision. See App.R. 22(B) and

26(A); I..oc.App.B.. 22. This decision will be journalized and will become the judgmentand order of the coiu•t pursuant to App.R. 22(C) wa.iess a motion for reconsiderationwith supporting brief, per App.'I.Z. 26(A), is filed within ten (10) days of theannouncement of the court's decision. The time period for review by the SupremeCourt of Ohio shali begin to run upon the jourualization of this court`s announcementof decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.lZ, I.[, Section 2(A)(1).

%,0685 '00357

Appx.oooo04

MARY EILEEN KTI.,BANFi, J.:

Plaintiffs-appellants, Robert and Diane Berry ("tlie Berrys"), appeal the

decision of the Cuyahoga County Court of Common Pleas granting summary

judgment in favor of defendant-appellee, Javitch, Block, & Rathbone, L.L.P.

("Javitch"). After a thorough review of the record and pertinent law, we conclude

there is an issue of material fact, tlierefore, we reverse.

The Berrys commenced an acti.on for fraudulent and gross negligent

misrepresentation, as well as fraudulent and gross negligent concealment

against Javitch. In an earlier suit, the Berrys alleged that Javitch committed

fraud when it failed to disclose the fact that it was insured for legal malpractice

by Clarendon National. Insurance Company ("Clarendon") from October 1998

through October 1999. In June 2000, the $errys filed a legal malpractice action

against Javitch. In an interrogatory, Javitch disclosed only its policy with

Legion Insuranee Company (`Legion"), which did not cover the time period when

the Berrys' claim occurred. Javitch contacted Clarendon in October 2001, but

did not list this insurance policy in its discovery responses.

The Berrys and Javitch entered into a settlement agreement wherein

Javitcb consented to judgm.ent in the amount of $195,000, $65,000 of which was

to be paid by Javitch up fxont. Following the execution of the agreement,

Javitch, througli its attorney, was to attempt to persuade Legion to satisfy the

141,8685 R80358Appx.000005

-z-

judgment. After 90 days, if Javitch was not successful, the Berrys were

permitted to attempt to collect the balance frorn Legion. In the agreeznent, both

parties acknowledged that Legion was denying coverage. Further, the Berrys

agreed that under no circumstances would Javitch pay the Berrys more than

$65,000. The Berrys were bou.nd to release any and all claims when one of two

conditions occurred: (1) Legion satisfied the consent judgment, or (2) the claim

against Legion for that consent judgment was otherwise resolved. The

agreement was executed on Deceniber 21,2001. Javitc.h was unable to persuade

Legion to pay the balance of the judgment, and the consent decree was executed

and filed on April 1, 2002.

Javitch pursued litigation against Legion, which was ultimately dismissed

on summary judgment in favor o€Legion. The Berrys were also unsuccessful in

pursuing Legion.

In September 2006, the Berrys i°iled suit again, claiming that they were

fraudulently induced into settling the malpractice case, arguing that. they would

not have settled for $195,000 had they known that Javitch had been insured by

Clarendon.

Javitch filed a inotion for summaryjudgment, which was granted without

opinion. This appeal followed. The Berrys assert one assignment of error for our

review, which states the following:

y61.-9685 09359

Appx.000006

"The trial court erred as a matter of law when it grantedJavitch Block's motion for summary judgment because theevidence before it established that the Berrys had viable

claims for fraudulent conduct"

This court reviews a trial court's grant of summary judgment de novo.

Ekstrom v. Cuyahoga Cty. Cotnrraunity College, t.50 Ohi.o App.3d 169,

2002-Ohio-6228. Before summary judgment may be granted, a court must

determine that "(1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3)

it appears from the evidence that reasonable minds can come to but one

conclusion, and viewing the evidence most strongly in favor of the nonmoving

party, that conclusion is adverse to the nonmoving party." State ex ret. Dussell

v. Lakewood Police Dept., 99 Ohio St.3d 299, 300-301, 2003-Ohio-3652, citing

State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191,

1996-Ohio-326.

The Bezxys argue that Civ.R. 60(B)(3) is inapplicable because they did not

seek to rescind the settlement agreement, but rather sought damages for fraud.

Javitch contends that the Berrys failed to timely allege fraud, pursuant to the

one-year statute of limitations set forth in Civ.R.. 60(B)(3). `t'he Berrys may

choose to bring a separate action for fraud without moving for relief from the

consent judgment entry. The Berrys first learned of the Clarendon policy in July

360

Appx.000007

-4-

2004, and filed suit in September 2006, well within the four-year statute of

limitations for fraud.

In .Fredericksoa v. Nye (1924), 110 Ohio St. 459, 468-469, the Ohio

Supreme Court stated:

"The law is elementary that where one has suffered byreason of the misrepresen.tation of another, and has been ledto part with his money in reliance upon said false andfraudulent misrepresentation, he has three independentremedies: First, he may affirm the contract into which hehad been induced to enter and sue for his damages for thefraud perpetrated upon him. Second, be may rescind thecontract itself and bring action to recover back the moneyswhich he has paid. Third, he may bring an action in thenature of the action at bar in a court of equity to obtain arescission of the contract into which he had been induced toenter, with incidental relief. An action for rescission isentirely independent and inconsistent with an action fordamages by reason of the false and fraudulentrepresentations. In the first action the contract is treated asa nullity and the plaintiff asks the intervention of a court ofequity to obtain a nullification of said contract. In theaction for damages for fraudulent representations whicliinduced him to enter into the contract, he affirms thecontract and brings his action to recover damages by reasonof such false representations. In the one action he treats thecontract as nonexistent, and in the other action he affirmsthe contract. Each remedy is inconsistent with the other."

Id., quoting Clark U. Kirby, 204 App. Div., 447, 451, 198

N'X.Supp., 172, 175. See, also, Colverxbach v. McLaughlin

(June 18, 1982), Ashtabula App. No. 1082.

We agree with the appellants that Civ.R. 60(B)(3) does not apply in this

case because the appellants were not looking to rescind the settlement

*6685 g6036 i

Appx.oo0ao8

-5-

agreement, butrather were suing for damages caused by Javitch's alleged fraud.

Therefore, the limitation in Civ.R. 60(B) requiring relief to be sought within one

year is inapplicable.

Javitch has argued that the settlement agreement executed by the parties

in 2001 contained a release absolving them from future litigation. However, the

specific language of the settlement agreement reads,

"Plaintiffs will not release Javitch Block with respect to theamount of the consent judgment, until such time as thatjudgment is satisfied by Legion Insurance Company or theclaim against Legion Insurance Company for that judgmentis otherwise resolved. The release will include, inter alia, anacknowledgment that the settlement constitutes a resolutionof disputed claims." (Settlement Agreement 17.)

Based on this language the $errys did not release Javitch of future claims.

It is clear that the parties contemplated executing a release in the future when

the judgm.ent had been satisfied. Further, in 2007, a letter from Javitch's

counsel sent to counsel for the $errys specifieally references Javitch's desire to

obtain a release from the Berrys. (Conforming Reply Brief of Appellants, Exbibit

2.)

Finding no merit to Javiteh's contention regarding the release, we must

now consider whether the trial court's granting of summary judgment was

appropriate. The Berrys argue that summary judgment should not have been

granted because there is a material issue of fact as to their fraud claims.

10 685 fG0 362

Appx.000009

-6-

Although the I3errys also alleged negligent misrepresentation and concealment

in their complaint, they have not addressed either in this appeal. Consequently,

we will only address their fraud claims.

To establish a claim of fraudulent misrepresentation and/or concealment

the following elements must be proved: "(a) a representation or, where there is

a duty to disclose, the concealment of a fact (b) which is material to the

transaction at hand, (c) was znade falsely, with knowledge of its falsity, or with

such utter disregard and recklessness as to whether it is true or false that

knowledge may be inferred, with the intent of misleading another into relying

upon it, [and] justifiable reliance upon the representation or concealment, with

a resulting injury proximately caused by the reliance." Burr v. Stark Cty. Bd.

of Commrs. (1986), 23 Ohio St.3d 69, 73. (Internal citations omitted.) The

failure to prove any one of these elements is fatal to the plaintiffs case. Conley

v. Willis, Scioto App. No. 00CA2746, 2001-Ohio•2410, at 12. VJhere the

pleadings and evidence submitted clearly fail to support a claim for fraud,

summary judgment is properly granted. Id. at 13.

'£he crux of the Berrys' argument lies in Javitch's response to

"lnterrogatory No. 4" in the legal malpractice lawsuit that requested. "the name

of insurer, type of policy/policies, policy numberlnumbexs, and limits of coverage

of each and every insurance policy that may cover your alleged liability in this

190685 *90363

ApPx.oooo70

-7-

action, including umbrella coverage." Javitch responded, "Legion Insurance

Company/Claims made policy 10-12-99 through 10-12-00(.Policy No. PL 106-572-

421T..imits: $1 millio per claim/$3 million aggregate." After Legion denied

coverage, Javitch supplemented its response, explaining that Legion was

denying coverage.

The Berrys insist that Javitch should have disclosed the existence of the

Clarendon policy that_was_in..effect._at_the time their malpractice suit arose.

Javiteh contends that the Clarendon policy would not cover the situationbecause

it was a "claims made" policy that required notification prior to the policy's

expiratioxx, which did not happen in this case. Javitch would have had to notify

Clarendon of a possible claim between October 12, 1998 and October 12, 1999.

On August 26,1999, before the expiration of the Clarendon policy, Roetzel

and Andress contacted Javitch on behalf of the Berrys and stated,

"[We] liave advised the Berrys that they could prosecute a

claim against your firm ***: We have also advised them thatthey would have a viable claim to recover the fees and

expenses that they have paid your firm to date. We believethese claims would have significant value before a jury,including the potential for the recovery ofpun.itive damages.

We respectfully suggest that you put your firzn.'s malpractice

insurance carrier on notice." (Appellants' Brief, Exhibit 2).

Despite receiv=ing this communication on behalf of the Berrys, Javitch did

not place Clarendon on notice during the applicable period, and later repeatedly

A0 6 8

Appx.000011

insisted Legion would cover the claim. Upon receipt of the August 26, 1999

lettex, Javitch held a meeting specifically to address the Berrys' claims. Joel

Rathbone, a partner at Javitch, participated in the ineeting. (Joel Rathbone,

Deposition at 35.) Javitch did not notify Clarendon, and Legion continued to

deny coverage, asserting the claim occurred before the Legion policy was in effect

and while Clarendon was still providing coverage.

The Berrys allege that Javitch's interrogatory responses were knowingly

false or incomplete, made intentionally to mislead them, and that they relied on

the fraudulent responses to their detrime The Berrys claim that Javitch

knew or should have known that Clarendon was their legal malpractiee

insurance carrier during the applicable time period. They contend that they

never would have settled if they were aware of the Clarendon policy.

Javitch argues that because they did not believe Clarendon would provide

coverage they did not have a duty to disclose the policy in the interrogatory.

However, the interrogatory submitted to Javitch sough.t the names of any

coverage which "may" cover the claim. Initially, Javitch disclosed only Legion.

When Javitch learned Legionwas denying coverage, Javitch supplemented their

response to indicate Legion was denying coverage.

Interestingly, on the same day the interrogatory was supplemented,

Javitch, through its attorney, sent a letter to Clarendon stating, "[w}e are hereb}*

4Z06$5 T6Q365

I

APpx.aooo1z

putting you on notice of a claim which may be covered by your policy because of

events occurring during your policy period which allegedly constituted a claim."

(Appellants' Brief, Exhibit 3.)

Javitch's contention that although the letter was sent, they believed that

Clarendon would not cover the claim. This argument%s without merit. Javitch

is a seasoned law firm. Javitch, through. its counsel, would not have sent

Clarendon a letter putting it on F.iotice and specifically requesting coverage if

they truly believed there was no possibility of coverage as they now argue.

F-urther, when asked to explain a claims made policy, Joel Ttathbone answered

"claims made policy means that the occurrence of the claim has to occur during

the time of the policy." (Joel Rathbone Deposition at 23-24.) Mr. Itathbone did

not believe Clarendon had to be placed on. notice during the policy period, rather

he believed the claim must occur during tha.t time period.

Javitch's counsel, Gary 11 erma stated that when he sent Clarendonthe

October 24, 2001. letter, he was uncertain as to whether there would be coverage.

He specifically stated, "I badn't fully investigated the issue yet, and wasn't sure

whether there was coverage at that point." (Gary Hermann Deposition at 34.)

Herrnann attempted to find a way for the claim to be covered under the

Clarendon policy and even assigned an associate to research the issue. (Gary

Hermann Deposition at 33.)

85 00366

Appx.000013

-^a-

Javitch argues that merely failing to disclose the Clarendon policy (loes not

amount to concealment, we disagree. "The simple failure to disclose a fact is not

equivalent to concealment, for a distincti.on is made between the concealment of

a fact and the failure to disclose a fact, the former implies purpose--design; the

latter does not" Mitchell v. Slocum (1981), 7 Ohio Misc,2d 33, 4551V.E.2d 20.

Javitch was aware the Berrys would probably not be able to collect from Legion,

as Legion had previously denied the claim. Javitch's attorney contacted

Clarendon in October of 2001 trying to obtain coverage, while at the same time

failing to list Clarendon in response to the Berrys' discovery requests. There is

sufficient evidence for the fact finder to conclude that Javitch purposefully

withheld in.formation about the Clarendon policy.

The Berrys bolstered their claims with an expert report prepared by

Attorney W. Craig Bashein {`Bashein"). After reviewing all pertinent

information, Bashein provided a report concluding Javitch provided inaccurate

responses to discovery, and that the Berrys relied on the inaccurate responses

when they entered into the settlement agreement.

".Chere is ample evidence to support that the Berrys justifiably relied on the

representations from Javitch that Legion was the only coverage. While the

Berrys realized Legion may not pay the claim when they settled with Javitch,

they were unaware that there was another insurance company they could

1.910685 00367Appx.000014

-ii-

pursue. If the Berrys had known about Clarendon, they may have declined to

enter into the settlement agreeznent.

Accordingly, we find a material issue of fact still remains as to whether

Javitch purposefully withheld the existence of the Clarendon policy; therefore,

we sustain the Berrys' sole assignment of error.

The judgment of the trial court is reversed and remanded for proceedings

consistent with this opinion.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

ILEEN KILBANE, JUDGE

SEAN C. GALI.AGHER, P.J., DISSENTS (SEE SEPARATE DISSENTINGOPINION)LARRY A. JONES, J., CONCURS

%A6 8 SM0368

Appx.000015

SEAN C. GALLAGHEIt, P.J., DISSENTING:

I respectfully dissent. I would find that summary judgment was properly

granted in favor of Javitch because there is no evidence that Javitch intended

to mislead the Berrys or that the Berrys justifiably relied upon Javiteh's

response to their detriment.

.Although I agree that Javitch's response was less than accurate, the record

does not support the Berrys''claim that Javitch made a false statement with

knowledge of its falsity. When the Berrys finally filed suit against Javitch, the

Claxendon policy had expired. Javitch believed that the Clarendon policy would

n.ot cover the cause of action because that policy required notification before the

term of the policy expired, which was not done. Javitch believed that the Berrys'

cause of action would be covered by the Legion policy.. Javitch even pursued

Legion to provide coverage for the Berrys' claims. I fail to see how it would

benefit Javiteb to purposely hide the Clarendon policy.

Further, an insurance policy is a contract between the insurance company

and the insured. Mc.P3aillips v. Tramlers Indemnity Co., Cuyahoga App. Nos.

91286 and 91561, 2009-Ohio-1262. Although the Berrys had threatened to file

suit before the Clarendon policy expired, Javitch did not notify Clarendon

because it did not think the Bexrys' allegations were valid or that the Bexrys

would file suit. Unless required by statute, an insured may elect to handle

1%0685 00369

Appx.000076

-13-

claims itself or to turn the claims over to its insurance carrier.

Finally, I do not think the record supports the Berrys' claim that they

justifiably relied upon the inaccurate information. When the Berrys settled with

Javitch, they were keenly aware that Legion was denying coverage because the

claim was outside the policy's time frame. They were well aware that they might

not recover any inoney from Legion. Nevertheless, the Berrys agreed to accept

$65,000 from Javi.tch without the possibility,of recovering the balance from

Javitch if Legion continued to deny coverage. 'Flus proves that the Berrys were

eager to settle for whatever Javitch could provide, regardless of coverage from

an insurance carrier. Accordingly, I would find that summary judgment was

properly granted against the Berrys.

:VftO 685 PO 0 370

Appx.000017

CG97727NS_

m{je ^btate of 01jio, ICuyahoga County.

I, GERALD E. FUERST, Cierk of the Court of

Appeals within and for said County, and in whose custody the files, Joumals and records of said Court are

required by the laws of the State of OOio, to be, kept, hereby certify that the foregoing is taken and copied

^.V^, volume 685 Page 356 Dat:Ad: 7-6-09 CA 91723from the u

Dated:

of the proceedings of the Court of Appeats within and for said Cuyahoga County, and that the said foregoing

rcopy has been compared by me with the original entry on said l^tir^tay' Vn1. 685 Page 356

July 6, 2009 and that the same is correct transcript thereof.

31u t6egtimonp Wfjereot, I do hereunto subscribe my name officially,

and affix the seal of said court, at the Court House in the City of

Cteveland, in said Coanty, this 13th

day of--.._ Ju1Y A.D.20 09

GERALD E. FUF,RST, Clerk of Courts

By ^-^^^ Deputy Clerk

Appx.oooo1s

07(0812008 09:35 2166222707

CASENO. ^^^L n f.5 12"^

© 02 REASSIGNED

03 REINSTATED (C/A)

Q 04 REINSTATED

F-I 20 MAGISTRATEE] 40 AR81`t'RATtON

0 65 STAY

Q 09 SUBMITTED

NO.JUF(ORS

START DATE !--J__..__POST CARD

^se

CLERK OF CO1.^^=......_ ^

vFt) FOR F1LdNt3

litJ U d 2009

NfiN)1.P 9D9o! HE Ft1G1NAL , .i... c

lb.FUlABY

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C K:es-2

BY4^

THE 9TATE OF OIiiO^ 1, GERALD E. FUEHST, CLEHK OFOuyahogn County SS. THE CplJRT oB COMidDN PLEAS

WITHIN AND pOR SAID CWkTY.HEREBY CERTIFY TNAT TFIE ABOVG AND r 01 G i8 T LY..-_

OFFtGAND ALOFSAIDCO

A.D, 20D E.FUEFtST; Cierk

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PAGE 419 z RCVD AT 718f2068 2:56:36 FPR [Easfern Daglighf Tlme]

ND DATE

P11GE 04/09

DGE1',^^^L^.._:^^"^UJASSiGNED ^ ^^

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u 81 JURYTRIAL0 82 ARBITRATION DECREE

E3 83 COURTTRIAL0 85 PAETRIALQ 86 FOREIGN JUDGMENT

0 87 DIS. W/O PREJ0 88 BANKRUPTCY/APPEALSTAY

Q 89 D1S. W/PRGI

91 COGNOVITS

^ 92 DEFAULT

O 93 TRANS TO COURT

© 95 TRANSTOJUDGE

98 OTHER

COURTREPORTER

START DATE

END DATE

FINAL.

----:^Q PARTIAL

DATE (D ../_2-_j ff (NUNO P42O TUNO ENTRY AS OF & FOR )

R.RIGHTFAXT3' DNIS:1083"CSID,2166222707E DURATION (mm•ss):01-30

Appx.000019

Yage2of6

WeStlar,v„

Not Reported in N.B.2d, 1986 WL 6446 (Ohio App. 5 Dist.)(Cite as: 1986 WL 6446 (Ohio App. 5 Tlist.))

cOn1y the Westlaw oitation is currently available.

CHECK OHIO SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OF

LEGAL AUTHORITY.

Court of Appeals of Ohio, Fifth District, Coshocton. . .. . .. . . County. . .. .CYCLOPS CORPORAI'ION, et al. PlaintifFs-Ap-

pelleesV.

DERRICK PI:I'ROLEUM, INC., et al. Defendant.s!I'hird Party Plaintiffs-Appcllant

V.HARRY DUGAN, et al. Defendants-Appellees.

No. 85-CA-35.

May 29, 1986.

Civil Appeal from Conunon Pleas Court, Case No.82 Cl 226PAUL E. SPURGEON ZELKOWtI'Z, BARRY &CULLERS 121 East High Street P.O. Box 28Mount Vemon, Ohio 43050, For Appellant.

ROBBRT E. WE'IR FRASE, WEIR, BAKER ANDMcCULLOUGH, CO. 305 Main Street Coshocton,Ohio, For Appellant.

ALAN P. GUSTAFSON F. RICHARD HEATHHITE & HI'TE 26-28 South Main Street P.O. Box47 Utica, Oliio 43080, For Appellees.

DAVID L. HOSTETLER LEECH, FREEMAN,SCHERBEL, HOSTETLER & PEDDICORD 401-1/2 Main Street P.O. Box 676 Coshocton, Ohio43812, For Appellees,

JAMES H. HFDDEN VORYS, SATER, SEY-MOUR AND PEASE 52 East C;ay Street Colum-bus, Ohio 43216, For Appellees.

OPIN)ON

Page 1

Norrnan J. Put6nan, P.J.; John R. Milligan, J.; JohnR. Hoftirran, J.MILLGAN..Iud e,

I2ELIEF 1tROiVI JUllG1VIENT, CiV. R. 60(B)-VACAT7ON OFDISIVIISSAL

*1 This case Itas become enmeshed in a proccdnralquagmire resnlting, at the moment, in a situationwhere defendants (Dugan, et al.) have been orderedreinstated as paities defendant in a case that hasbeen dismissed and concerning which there is anunresolved motion to vacate a voluntary, Civ. R.41(A) dismissal. The postrue of the parties is fur-ther compointded by the reality that, in addition tonover having filed any answer in the case, the rein-stated defendants had never filed any request for af-

finnative relief.

Originally, Cyclops, plaintiffi.appellee, filed a quiet

title action against Derrick seeking a determinationof interests in oil and gas leases. Derrick c:ounter-clainied requesting quiet title against Cyctops andasserted a third party complaint against additionalparties (Hadded, et al.). Thereafter, Cyclops filedan amended complaint to qoiet title naming ownersof working interest in several leases. The owners ofworking interests (1)ugan, et al., appellants) movedto add the owner of the lands as additional parties.'I3vs motion has never been ruled upon.

The several actions in the trial court giving rise tothis appeal follow;

(1) On July 3, 1984, t4ie Coshocton County Corn-mon Pleas Court signed a jndginent entitled `I7ntryDismiss'sng Defendant, Hazry Dugan, J. 10. Loff-land, Jr. and The Harry Dugan Oil Company.'

In salient port.ion, the judgment recites a stipulatedagreement whereby Derrick asstuned liability forjudgment which might be rendered against Dugan,

(c) 2010 `I'homson Reuters. No Claim to Orig- IJS Gov. Works.

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Page 3 of 6

Not Reported in N.E.2d, 1986 WL 6446 (Obio App, 5 Dist.)(Cite as:1986 WL 6446 (Ohio App. S Dist.))

et al., in consideration of Dugan, et at., assigningtheir interest in and to `the leases whiclt are thesubject of this action, together with fhe wells andequipment thereon to defendant-Derrick PetroleumCompany.' The judgment further recites:

It is further stipulated by and between counsel thatas a result of these actions, Hany Dugan, J. M. Lof-fland, Jr. and Harry Dugan Oil Company no longerbave any interest in the leases, the oil wells orequipment subject to this action; therefore, they aredismissed as party defendants to this action.

The jtulgment continued by observing that no rnon-ies are due and owing for the purchase of interest inthe7eases,Since any and all claitns therefore are to be extin-guished and settled in full upon the execution of theassignment referred to herein.

The contemplated assignments have never been ex-ecuted by the Dugan group of defendants.

The July 3, 1984 judgment was approved by coan-scl for Dugan, et al.

(2) On July 24, 1984 a Civ. R. 41(A)(I) stipulationof dismissal was filed with the court stipulating fhatthe action be disntissed with prejudice to a futureaction. Counsel for Dugan, et al. approved the stip-ulation by telephone authorizati.on, July 23, 1984(notwithstanding that at this point Dugan, et aL,were no longer parties to the action).

(3) On August 3, 1984 Dugan, et aL, filed the ino-tion for relief from judgment, eiting Civ. R.60(B)(1), (3) and (5) and requesting the court to setaside the Jnly 3, 1984 judgment, as well as the stip-ulation of dismissal, July 24, 1984. A hearing wasbeldOetober21, 1985.

*2 (4) On October 30, 1985, the court vacated the

July 3, 1984 jndgment and restored Dugan, et al.,`to their oxiginal position regarding ail assets af-fected by said entry as if that entry had never been

filed berein.'

Cd 2010 `fhomson

Page 2

Tho court is silent as to the request to set aside the

atipulation of dismissal, July 24, 1984.

In ins Oetober 30 judginent, the trial court recitesthat the movants, Dugan, et al.,

Have established atnple grounds for setting aside

the entry dismissing said defendants, as filed July 3,1984, pursuant to Civ. R. 60(B)(l), 60(11)(3) and60(B)(5) and upon equitab€e grounds.

(3) There was no meeting of the minds eonceraingthe terms of the settlement between Harcy Dugan. and Derrick Petroleum, Inc, which was incorpor-ated into tbe entry file.d July 3, 1984, in this matter,and it would be inequitable and iesult in substantialinjustice to enforce the terins of said agreement.

The posture of this case is fiuther conipounded bythe reality that following the notice of appeal andthe briefing of tbis issue by all parties, the trialcourt filed separate findings of fact and conclusionsof law on April 23, 1986. Altltough the briefs hadbeen filed upon the assuinption that a significantreasoa for the granting of relief was the lack of au-thorization by Dugan, et al., to their counsel tosettle the case, that possibility is not encompassedwithin the findings of the ttial eourt. Rather, tlrecourt finds that counsel acting on behalf of his re-spective clients negotiated for settlement of issues'which would Irave resulted in a`wash' settlementin whioh no money w•ould change.'

The court further found:

(2) During such negotiations, Attorney Gustafsonand Harry Dugan both believed the settleme.ntwould affect only an interest la own as the 'Bordenlease' and not affcct the 'Speaks lease.'

(3) These interests were not discussed by name atthe tune the settlement agreenicnt was filed.

(4) Later, after filing of the settlement entry, it wasdiscovered that in the opinion of Paul Spurgeonbotlr leases were affected contraty to ttte under-standing of Harry Dugan and Alan Gustafson, and

utess. No Claim to Orig. US Gov. Works.

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Page 4 of 6

NotReporte.d in N.E.2d, 1986 WL 6446 (Ohio App. 5 Dist)(Cite as: 1986 WL 6446 (Ohio App. 5 llist-))

yieiding a result which was clearly not a`wash.'

CONCL J'JSIONS OF LAAW

(1) Pursuant to Civil Rule 60(B) the Court may re-lieve a paxty from a judgment 'on motion and uponsuch tenns as are jnst' if the moving patty can es-tablish `mistake, inadvertence, surprise or excus-able neglect' or for 'any other reason justifying re-lief from judgment.'

(2) Under the facts of this case, this court is justi-fied in granting the relief sought in the interests ofjitstice pursuant to either Civil Rule 60(B)(1),60(B)(5), or principles of equity.

'1'o the judgment sapported by the above findings offact, the appellaut assigns tive errors:

ASSIGNMENT OF ERROR. NO. I.

1HL: COURT ERRED IN PER141ITTING TiARRYDUGAN, J.M. LOFFLAND, JR. AND HARRYDUGAN OIL COMPANY TO REPUDIA"1'E ANAGREEMENT WIiICN THEY AUTIIORIZEDTHEIR ATTORNEY TO MAKE BY GRANTINGTHEM RELIEF FROM JUDGMENT PURSUANTTO CIVII, RULE 60(B)

ASSIGNAZE.NT OF ERROR N0 II.

*3 THE COURT ERRED TN GRANTiNG THEDUGAN IN'I`ERESTS' MOTION FOR RELIEFFROM JUDGME'NT PURSUANT TO CIVILI2ULE 60(B)(1) OR (3).

ASSIGNIViENT OF ERROR NU.. TIl,

TI-IE TRIAL COURT ABUSED YT'S DISCRETIONIN GRAN':CTNG TI-IE DUGAN INTERESTS' MO-TION FOR RELIEF FROM JUDGMENT PURSU-ANT TO CIVIL RULE 60(B)(5).

ASSIGN lV f OF LR_R-M NO. IV.

Page 3

THE COURT LACKED AUTAORITY TOGRANT RBLIF.F FROM JUDGMENT PURSUANT TO CIVIL RULE 60(13) AS IT RBLATES TOTHE ENTRY OF DISMISSAL FILED JULY 3,1984.

ASSIGNMENT OF ERROR NO.. V,

TIIE TRIAL COURT ERRED lN NOT RULINGON ALL BRANCHES OF THE MOTION FILEDON AUGUST 3,1984.

Tho position of appellant is that the trial court erredin permitting Dugan, et al., to repcidiate their agree-ment encompasse(t in the July 3rd judgment of dis-missal. It is the posi5on of the appellees that tlxerewas no repudiation of an agreement becanse therewas no agreement in the first instance-i.e., therewas no meeting of the minds. Appellees extract theno contract theory from the arguinent and testimonythat counsel for Dugan's did not have authority tomake any settlement 'wliich would involve givingup the Dugan interest in the Speak's tease in whichthey had invested Thirty Two Tliousand Dollars($32,000).' (Appellee's Brief, page 7, T. 69).

In its subsequent findings of fact, the trial courtgoes further, fmd'utg that the expectations of ttieprincipal parties were divergent, justi#ying relieffrom judgment.

In this case, the July 3, 1984 judgment of dismissalwas a fntal adjudication upon the issues raised bythe pleadings as to Dugan, et al. 'I7tey had filed noanswer or a counterelaim and the elaints againstthein were thcreby dismissed.

This judgment is entitled to the protection of thehistoric principle of conclusiveness or finatity of

judgments.

The doctrine of the conclusiveness of final judg-nients rests upon the necessity that there be an end

0 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Appx.000022

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Page 5 of 6

Not Repmted in N.E.2d, 1986 WL 6446 (Ohio App. 5 Dist.)(Cite ast 1986 R'T, 6446 (Ohio App. 5 Dist.))

to litigation. Thus, it has been declared that the ntis-chief of endless litigation in whieb nothing is fi-nally detemiined is a thing mot'e to be dreaded thanan occasional miscarriage of justice. The publicgood and the peace of society are said to demandsuch result.

63 O. Jur,3d 154-55, Judgmerits, Sec. 377(foofnotes initted).

.. as between parties sui juris, and in the absenceof fraud, a judgnaent or decree of a court havingjurisdiction of the subject matter, rendered by con-sent of the parties, though without any ascerta'nrment by the court of the truth of the facts averred,is bincllng and conclusive between the parties andtheir privies, and may be used as a basis for the ap-plication of the doctrine of r iudieata ...Morcover, in one sense, consent to the entry of ajudgment appears to give it greater force than thatof ordinary judgments. This is due to the fact that ifthe court has jttrisdiction, consent excuses eirorsaud operates to end all controversy between the

parties.

63 O. Jur.3d 45-46, Judgnxents, Sec. 273 (footmotesomitted).

Civ. R 60 is intended to suike a balance betweenthe need for a judgment to be fmal, and uee,d forcourts to vacate their judgments in the furtheranceof justice and fauiiess. It seeks to fmd a balancebetween the legal principle that there shouid be fi-nality to judgments, and requirements of faimessand justice that pemrit such fmal judgments to beopen undcr proper circ:umstancess. It is designed,within strict limitations, to allow avoidance of tizeconsequences of ro 'u "cata. 'It has a basic pur-pose of vacating voidable judgments and thosejudgments which have inherent defects.' 63 O.Jur.3d Judgments 372, 556 (footnote omitted). Sce,also, Friedentltal, Kane & Miller, Civil Procedure(1985), 581, 313.1.

*4 We conclude that the settlement agreement in-corporated within the entry of dismissal is a full

Page 4

and complete agreement between the parties. Ap-pellant is corrcct when it argues that there is no au-thority for the proposition that a party niay unilater-ally repudiate a settlement agreement incorporatedin a judgment of the eourt, absent flaud or misrep-resentation. The judgment is complete on its face,dealing with the leases enconipassed within thepleadings filed by the sattling parties.

We conclude that upon the found facts, the courtabused its discretion in concluding as a matter oflaw that the moving parties were entitled to relieffrom the distnissal judgment.

The first assignment of error is sustained.

II.

In its conclusion of law, the trial court makes itelear that it is not making a ruling based upon Civ.R. 60(B)(3), fraud or misrepresentation. Nor do thefound facts support the conclusion that tliere wa.sany such inisconduct by the appellants.

Where tho settlement agreement and judgment isclear and unequivocal on iis face, there can be nosuch 'mistake, inadvertence, surprise or excusableneglect' as contemplated by Civ. R. 60(&)(1).

The second assignment of error is sustained.

The fonnd facts do not justify or amount to a reasonjustifying relief fromjudgment.

If a party can success8tlly avoid the consequencesof a clear, unambiguous, and plain agreement cn-hanced to the position of a judgment by stating thatbe did not understand that the agreoment says what

it says, there will never be any finality nt agree-

nients orjudgments. As noted by the sta€i'notes_

The grotmds for invoking the catch-all provision,not subject the one year Iimitatio,t, should be sub-stanfial.

© 2010 Tbomson Reuters. No Claim to Oag. US C3ov. Works.

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Page 6 of 6

Not Reported in N.E.2d, d986 WL 6446 (Ohio App. 5 Dist.)(Cite as: 1986 W1, 644(1 (Ohio App. 5 Dist_))

Cv. R. 60, Staff Notes.

The example used is fraud upon the aourt, whichwas not found in the case sub t dice.

The tbird assignment of error is sustai.ned.

]v.

The July 3, 1984 judgment is not a volttntary dis-missal by stipulation as coiitemplated by Civ. R.41(A)(1). Tt is rather a dismissal by order of courtwitliin the purview of Civ. R. 41(A)(2).

'fhe fourth assigtnnent of error is overzuled.

V.

As observed by the appellant, the failure of the trialcoutt to rule on the branch of appellees' motion re-questing relief from the stipulated dismissal of July24, 1984 'presents an interesting dilemma.'

'Lhe 'dilemma' for this court is that the faihve tomle on the second branch of the motion for relieffrom judgment may well render the judgment not afmal appealable ord<:r, Civ. R. 54(S). Because ofthe `dilemma' that would be created were we not torule on the fiFst four assignments of error for thisreason, we have elected to determine the assign-ments of error notwithstanding serious question asto the fmality. We rule now for obvious reasons ofeconoiny of effort and judicial time. (Clearly, a dis-missal of this appeal on that ground would havepromoted additional appellate review at a later date).

W e overrulo the fi fth assigmnent of error.

For the reasons above stated, the July 3, 1984 judg-ment of the Coshocton County Cotnmon PloasCotnt is vacated, and the cause is rernanded to saideourt for ftirther proceedings consistent with thisMemorandum-Opiruon and accor'd'nag to law.

Patman, P.J. and l-1of'fman, J. concur,

JUDGMENTENTRY

Page 5

x5 For the reasons stated in the Memorandum-Opin-ion on file, the July 3, 1984 judgment of theCoshocton County Conmton Pleas Court is vacatedand the cause is remanded to said Court for furtherproceedings consistent with this Memorandum-Opin-ion and according to law.

Ohio App., 1986.Cyclops Corp. v. Derrick Petmleum, Inc.Not Reported ia N.E.2d, 1986 WL 6446 (Ohio "App.5 Dist,)

END OF DOC1JTv1ENT

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W(?fiLaw

Not Reported in N.L'.2d, 2006 WL 1781095 (Ohio Aop. 8 Dist.), 2006 -Ohio- 3325(Cite as: 2006 WI, 178)095 (Ohio App- 8 Bist.))

c Wost (-Ieadnotes

CJ-IECK OHIO S(1PREME COIIRT RU LES FORREPORTING OF OPINIONS AND WEIGHT OF (1) Insurance 217 C'^ 2266

LEGAL AIJTE3ORITY.

Page I

217 bisurance217XVII Coverage--Liability Insurance

Court of Appeals of Obio, 217XVII(A) hi GeneralEighth District, Cuyahoga County. 217k2263 Commencement and Duration

JAVITCH BLOCK E1SEN & RATHBONB, PLL, of CoveragePlaintiff-Appellant 2171z2266 k. Claims Made Polieies:

v. Most Ciled CasesTARGET CAPI"fAL PARTNERS, INC., et al., De- Pursuant to the terins of law fxrm's professional li-

fendants-Appellces. abifity insurauce policy, insurer owed no duty toNo. 86926. defend the insured law f'ann against former clienPs

claim of legal malpractice, whicli arose from al-Decided June 29, 2006. leged wrongful acts by the law frrm that occuned

prior to the effective policy period, and whichBackground: After insured law frm settled legal clairn the law &nn had notice of prior to the effect-malpractice and spoliation claims asserted by ive poliey period; among other events, client hadformer client, and its professional liability insurer notiGe.d the fu7n that it was inva4stigating potentialfiled banktvptcy, law fn'tn filed action against the malpractice cla'tms, and that it believed it couldinsnrer's third party administrator seeking reim- prove a prima facie case of malpractice, prior to thebursement of its settlement amount and a declara- effectivepalicy date.tion that insurer owed it a duty to defend the legalmalpractice and spoliation claims. Tbird party ad- t2] Insurance 217 C-2391(2)

ministrator moved for sumniary judgment as tothreshold issues outlined by the court. The C'ourt of 217 InsuranceCommon Pleas, Cuyahoga Cormty, No. 488046, 217XV1ICoverage-LiabilityInsurancefound that insurer and third party administrator 2I7XVSI(B) Coverage for Particular Liabilit-owed no duty to defend law finn, and third party iesadrninistrat.or owed no duty to law finn as a third 217.k2389 Professional Malpractice Liab-party boneficiary of the insurer's policy. Law finn ilitiesappealet9. 217k2391 Particular Professions

217k2391(2) k, Law. Most Cited

Iloldings: `fhe Court of Appeals, Michael J. Cor- Casesrigan, J., held that: T.lnder provision of law frm`s professional liabdity(1) insurer owed no duty to defend law fum against insurance policy that expressly excluded claims re-fozmer client's inalpractice claims, which arose pri- garding the loss of use of tangible property, lawor to effcetive date of policy, and fum's insurer owed no duty to defend the law fmn(2) insurer owed no duty to defenct law finn against as to a former client's spoliation claims, whichformer client's spoliation claims. claims asserted that the law t-irm failed to turn over

documerts relating to their case.

AfFrmed.Civil appeal froni Common Pleas Court Case No.

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Not Reported in N.B.2d, 2006 WL.1781095 (Ohio App. 8 Dist.), 2006 -Ohio- 3325(Cite as: 2006 WL 1781095 (CThio A.pp. 8 )Dist.))

488046, Affirmed.Gary D. Hermann, Jane K. Con-rad, Michael D. Brennan, fIennann, Cahn &Sebneider, LLP, Qalleria &'Tower at Erieview,Cleveland, for plaintiff-appellant.

Brian D. Sulhvan, Mariamte K. Barsoutn, StacieLindley Baker, Reminger & Retninger Co., LPA,Cleveland, for defendant-appelIee, Target CapitalPartners, Inc.

MICHAEL J. CORRIGAN, 3.

*1 {¶ 1) Appeliant, Javitch Block Eisen & Rath-bone, P.L.L. ("Javitclt"), appeals the trial conrt`sdecision fuading that its professional liability carrierdid not owe a duty to defend or indemnify it withrespect to the specific legal malpractice claims al-

leged.

1.RELEVANT FACTS

{}l 2) Javitch obtaived a lawyers professional liab-ility policy (the "poGey") tbrough Legion InsuranceCompany ("Legion"), which was effective October12, 1999 ttvougx October 12, 2000. The policy spe-cifically provides, vt pettinent part, as follows:

{¶ 3} `INSURING AGI2J3EMh-'N'1'S

{¶ 4) "1. We will pay oompensatory atnotmts forcovered claims and claim expenses, up to our limitof liability, vihich you become legally obfigated topay as a result of a wrongful act in rendering orfailing to render legal professional services by youor by anyone for whom you atn legally liable.

{Q 5) "2. 'I'his policy applies only to claims firstmade against you and reported to us, in writing,during the policy period or any applicable extendedreporting period, provided that the wrongfnl acts onwhich the claims arc based first occurred or com-

nienced:

{j 6) "A, during the policy period; or

{l. 7) "B. prior to the poliey period bitt on or after

Page 2

the retroactive date, if any, provided tltat ptior to

the effeetive date of thc policy period:

{¶ 8} "1. yon were not aware that your concluet orlaak of conduct cons6tuted a wrongful act; and

{¶ 9) "2. you did not give notice to any insurancecompany, including us. A claim is deemed firstmade against the ,namad insured when the nainedinsured first receives notice of it, and is deenred re-ported to us whete wc receive notice of it.

(1110) .°^* *

1111) "EXCLUSIONS

{¶ 12) "We will not defendpolicy, for any:

{¶13}"*•k*

or pay, under this

{¶ 14} "5. claim based upon or arising out of bodilyinjury, siclmess, emotional distress, disease ordeath of any person, or itljury to or destruction ofany tmtgiblc property including the loss of use of

such property."

{¶ 15) The policydefhtes "wrongful act" to mean"an actual or alleged negligent act, error or omis-sion in rendering or failing to reader legal profes-sional sexvices.°

(11 16) Approxiniately two nionths prior to the ef-fectivo date of the policy, Javitch withdrew aseonnse3 for Robert and Diane Berry (the "Berrys")in one of the four lawsuits it had filed on theBerrys' behalf. Although the four lawsuits werefiled against four separate defendants, the causes ofaction stemmed from the same transaetion; that is,the conshuction project at the Berrys' residonce.Dissatisfied with Javiteh's representation, theBeriys retained another law firni, Roetzel & An-dress ("Roetzel"), to review both their claims in thefour lawsuits as well as Javitch's performance in

handling their claims.

{¶ 17) After reviewing the claims, Ro

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el, on be-

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Not Reported in N.E.2d, 2006 VdL 1781095 (Ohio App. 8 Dist.), 2006 -Ohio- 3325

(Cite as: 2006 WL 1781095 (Ohio App. 8 Dist.))

half of the Benys, sent a letter advising Javitch thatit had committed multiple violations of the code ofprofessional responsibiiity, the Berrys couid provea prima facie case of legal malpractice againstJavitch, and the Berrys had not consented to Javitebwithdrawing as counsel on one of the four lawsuits.In addition, Roetzel's letter advised Javitch to putits malpractice earrier on notice of a claitn andmade a settlement demand to resolve the malprac-tice claim in the amount of attorneys fees plus$200,000, which was the estimated value of theBerrys' claims against one of the four defendants.Roet7el sent a second letter to Javitch advising it ofanother potential legal malpractice claim against aspeeific attorney and Javitoh. These malpracticeclaims were the impetus behind Javitch's motion towithdraw as counsel from one of the four iawsuits.The Berrys also formally discharged Javitch fromfurther representation in all of the matters in whichthey were originally retained and advised Javitchthat they intended to pursue the potential disciplin-ary violations.

^2 (¶ 18) Subsequent to Javitch witbdrawhxg ascounsel, being discharged as counsel, and being ad-vised of the Berrys' potential legal malpracticeclauns, Legion issued its policy to Javitch. For ap-proximately one year after the Ben-ys ftled theirlegal malpraetice and spoliation action againstJavitch, Legion provided a defense to Javitch undera reservation of tights. Legion later concluded thatthere was no coverage under the policy for Javitch'smalpractice claim because the `wrongfal aet" oc,-curred prior to the effective date of the policy andthat the spoliation claim was expressly excluded$am the policy's coverage, After Legion withdrewits defense of Javitch, Javitch settled with the Berrys.

{i 19) Javitch then sought reimbursement of thesettlement atuotint and attorneys fees, as well as adeclaration that I,egion owcti Javitclr a duty to de-fend the Segat malpractice claiun. However, Javitchdid not file its suit against Legiou, because Legioahad filed for bankruptcy protection. Instead, Javitoh

Page 3

filed suit against appellees, 'T'arget Capital Partners,Inc., Target Professional Associates, Target CapitalSnsuranoe, and Target hisvrance Servioes(collectively refen-ed to as "Target"), who, for thiscourt's purposes, was Legion's third party adcninis-trator, providing clauns services on L.egioa's behalf.FNI

FNt. Javitch also filed suit against its in-suranee agenC, J.P. Flanagan, who sold itthe Legion policy.

(¶ 20) The case was deemed to be coruplex and thettial court ordered that the threshold issues of thecase must be deeided first before the parties in-cnrred additional and, perbaps unnecessary, ex-penses in going forward. The thre.shold issues in-cluded the following: (1) whether Legion had a leg-al duty to defend Javitch with respect to the Benys'lawsuit; (2) whether Target owed Javitch a duty todefend; (3) whetlier Target breached any legal dutyto Javitoh because of Legion's denial of coverageaad, if a breach occurred, what type of damages isJaviteh entitled to; and (4) to what ex€ent is the sct-tlement between Javitch and the Benys binding ouTarget. "I'he trial court's order specifically statedthat in the event the court renders a decision on thethreshold issues of the case, tlte parties woutd beentitied to appeal those issues prior to proceeding to

the second phase, whicb would ent'ail prosecutingthe RICO claims and civil conspiracy claimsagainst Javilcti s insurance agent, J.P- Flanagan.

(1 21) 1Jpon Targef's motion for summary judg-ment, the trial court fotmd in favor of Legion and'3'arget that Legion owed no duty to defend Javitchwith respect to the legal malpractice and spoliationclaims pursuant to the policy, that Target owed nofiduciaty duty to Javitch nnder the Legion policy,and that Target owed no duty to Javitch as a thirdparty beneficiary of the T..egion policy to detLndJavitch. Javiteh appeals the trial eourt's decision.

Il. JAVTTCI3'S APPEAL

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Not Reported in N.E.2d, 2006 WL 1781095 (Ohio App. 8 Dist.), 2006 -Ohio-3325(Cite as: 2006 WL.1781095 (Ohio App. 8 Dist.))

[¶ 22) Javitch first argues that the trial court esedin fmding tJiat Logion owed no duty to defendJavitch under the policy- Javitch then argues, in itssecond assignment of error, that in the event thiscourt finds that Legion owed a duty to defend it, thetrial court. also erred in finding tltat Target owed noduty to Javitch as a third party benefrciary. Finally,Javitch argues, in its third assignment of error, thatin the event this court finds that Legion owed aduty to defend it the trial court erred in finding thatTarget owed no fiduciary duty to Javitch. Javitch'sarguments are without merit.

'*3 [1] (123) According to the express language inthe policy, a covered claim is one that occuxs either(I) within the effective policy period or (2) beforethe effecfive policy period if the insured was un-aware that the eonduct constituted a wrongful actand the insured did not give notice to the insurer.Here, the wrongful act occurred prior to the effect-ive policy period because Javitch wa.s, at the veryleast, put on notice that the Berrys had retained Ro-etzel to investigate a possible legal malpracticeclaim against Javitcb, that the Berrys could prove aprima facie case of legal malpraetice, and that theBerrys made a settlenient demand to resolve thelegal malpractice ciaim. Javiteh was keeatly awareof these facts almost two months before the policybecame effcetive, because it withdrew as counsel inone of the four lawsuits it fited on Javitch's behalfprior to the effective date of the policy, and wasdiscbarged by the Berrys in all its legal representa-tion prior to the effective date of the policy.

{¶ 24) Javztch's argument that the Berrys' com-plaint for legal malpractice and spoliation was notsufficiently specific to detennine whether some orall of the alleged "wrongful acts" occurred beforethe effective date of the policy is not persuasive inlight of the fact tknet the Berrys discharged Javitchas their counsel prior to the eff'ective date of thepolicy. Javitch r,aEmot claim that it was unawarethat the Berrys were seriously pursuing a legal mal-praetice claim for its representation of the construc-tion work performed at their house, especially when

Page 4

the Berrys hired Roetzel to review the claims andmade a settlement demand to Javitch to resolve thelegal malpraetice claims. Even if this court were toagree that the Berrys•' legal malpractice claims werevagtte, Javitch cannot ignore its awareness of a po-tential legal malpractice claim prior to the effectivedate of the Legion policy. Thus, pursuant to thespecific terms of the policy, Legion owed no duiyto defend Javitch.

[2] {11 25) Likewise, Legion's policy expressly cx-cluded covetagefor the Berrys' spoliation claimagainst Javitch. The Bertys alleged in their com-plaint against Javitch that tbey did not have use ofcertain ducuments relating to their cases against thecontractors, subcontractors, and workers who per-formed construction work on their house bccause ofJavitch's failure to tum over those documents. Lossof use of snch tangible property is expressly ex-cluded by the policy; therefore, Legion owed nodaty to defend Javitch with respect to the Berrys'spoliation ci<1im.

(126) Because the trial court did not err in findingtbat Legion owed no duty to defend Javitch with re-spect to the Berrys' legal malpractice and spoliationclaims, Javitch's second and third assignments oferror are hereby moot.

Judgment affirmed.

It is ordered that appellee recover of appellant itscosts lierein taxed.

The court finds therc were reasonable grounds forthis appeal.

*4 It is ordered that a special tnandate isstie out ofthis court directing the Common Pleas Court tocarry this judgment into execution.

A certi5ed copy of this entry shall constitute themandate pmsuant to Rule 27 of the Rules of Appel-late Procedure.

DIANE KARPITTSRI, P.J., and MARY EILEENKILBANE, J., concur.

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Not Reported in N.&.2d, 2006 WL 1781095 (Ohio App. 8 Dist.), 2006 -Ohio- 3325(Cite as: 2006 WL 1781095 (Ohio App. $ Dist.))

N.B_ This entry is an announcement of the courPsdecision. See App.R. 22(B), 22(D) and 26(A);Loc.App.R. 22. This decision will be journalizedand will become tlie judgment and order of thecourt pursuant to App.R.22(E) unless a motion forreconsideration with supporting brief, per App.R.26(A), is filed within ten (10) days of the an-nonncement of the court's deeision. The time periodfor review by the Supreme Court of Ohio shall be-gia to ran upon the journalization of this coures an-nouncement of decision by the clerk per App.R.22(E). See, also, S.Ct.Piac.R. 11, Section 2(A)(1).

Ohio App. 8 Dist.,2006.Javitch 131ock Eisen & Rathbone, P.L.L. v. 'PargetCap. Partners, Inc.Not Reported in N.13.2d, 2006 WL 1781095 (OhioApp. 8 Dist.), 2006 -Ohio- 3325

END OF DOCUMENT

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tdVcStlaw

Not Reported in N.E.2d,1995 WL 739616 (Oltio App. 8 Dist.)(Cite as: 1995 SVL 739616 (Ohio App. 8 llist.))

cOnly the Westlaw citation is currently available.

CI3ECK OHIO SUPREME COURT RULES FORREPORTING OF OPINIONS AND VJEIGHT OF

LEGALAITPHORITY.

Court of Appeals of Ohio, Eightli District,Cuyahoga Connty.

The RICHEY BARRE'I"f COMPANY, Plaintiff-Appellee,

V.B.E.C. CONS'CRUCTION, INC., Defendant-Appel-

tant.No. 68437.

Dec. 14, 1995.

Civil appeal froni Berea Municipal Court, No.

94-CVF-01060.Christoplier J. McCaidey, Parma, for plaintiff-ap-

pellee.

Dean R. Steigerwald, Medina, for defendant-appel-lant.

JOURNAL ENTRY and OPINION

PA'TRICIA ANN BLACKMON, Judge:

*1 Defendant-appellant B.E.C. Construction, Ine.,appeals Gom a judgment rendered in favor ofplahitiff-appellee, The Rzchey-Barrett Company,apj pssigns the fnllowing errors for our review:

I. Th'I3 TRIAL COURT ERRI.D ItV RULING TFIATDEFENDANT-APPELLANT Y1'AS INDEBTED TOPLAINTIFF-APPELLEE IN TIiE NON-PAYMENTOF INSURANCE PREMIUMS FVEN I'HOUGHPLAINTIFF-AI'PELLEE IIAD PREVIOUSLYELECTED TO DEDUCT ,pROM TI'IE AMOUIdT ITCLAIMED IT WAS OWED BY Dls'FENDANT AP-PELLrINT PROM THE COMMISSIONS DUE

THEIR INDEPENDENT SELLING AGENT.

Page 1

lI. TIiE TRIAL COURT ERRED IN NOT RULINGTIIAT PLAIN2IF'F'=APPELLEE WAS NOT DAM-AGED AS A RESULT OF IT'S [sic] ELECTION TODEDUCT THE AMOUNT IT CLAIMED IT WASOWED FROM TIIE COMMISSIONS DUE THESBLLING AGENT

HavingreviewedUte iecord of the proceedings andthe legal arguments presented by the parties, we af-finn the decision of the trial court. The appositefact.c follow.

Ricliey-Barrett Company (Richey-Barrett) snedB.E.C. Constmction (B.E.C.) for money owed to iton account of B.E.C.'s failure to pay its insurancepremiums. The preiniums were due aud owed fronra contractor's cotnmercial liability policy sold toB.E.C. by Richey-Batreti's agent, Owens Coughlin.ABer a trial to the bench, the judge found B.E.C.owed Richey-Barrett $4861.15 plus 10% interest.'lhis appeal followed and for its record an App.R.9(C) statement was provided.

From the statetnent, the testintony of Jeffi'ey Gisserand Owen Coughlin was recounted. Gisser testifiedB.E.C. owed his Company, Richey-Barrett,$4861.15 for delinquent premituns on a contract ofinsurance it provided to B.E.C. He also testifiedRlchey-Barrett liad withdrawn the delinquent pay-ments froni Coughliri s conunissions. It appearsthese commissions were due Coughlin for other in-surance he had sold not necessarily to B.E.C. Whenan account was delinquent, it was the practice ofRiehey-Barrett to withdraw monies froan the agentof the delinquent account. Gisser testified its intentwas to rettim the commissions to Coughlin after ithad collected from B.E.C. in its lawsuit.

Coughlin testified lie sold the insurance to B.E.C.on a policy written by State Auto Insttrance Com-pany through Richey-Barrett. He confirzned the de-linquency by B.E.C. and the withdrawal of monies

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Not Reported inN_E.2d, 1995 W1-.739616 (Ohio App. 8 Dist.)(Cite as: 1995 WL 739616 (Ohio App. 8 I?ist.))

from his commissions by Richey-I3arrett- He veri-

fied lits lawsuit against Richey-Barrett.

The record does not indicate whether the deductionfrom Coughlin's cornmission occurred bePoreRichey-BaiTett`s lawsuit against B.E.C. The recordis equally siient. on whether B.E.C. raised ehe elce-tioxt of remedics argument in the trial court, and

whcther the trial court ruled on it.

Nevertlreless, in its first assigmuent of error, B.E.C.asserts the trial court erred in finding for Ricleey-

Ban'ett when it elected to attach Coughlin's coin-missions as payment for its nrdebtedness. B.E.C. argues the trial court's decision aIIows Richey-Barretfio collect t.wice- Richey-Barrett counters and arguesB.E.C. did not raise ihis issue below and waives theargument. Moreover, Richey-Barrett believes theelection o£remedies atgunient is nonsensical.

4-2 '1'he doctrine of election of remedies doesnotapply to this case- Therefore, we believe it unneces-sary to become rnired in the quagniire of proceduralwaiver. It is axiomatic that election of remedies isan afflrmative defense that mast be pleaded, or it is

waived. Civ.R. 8(C) and 12(E1); Mossa v. W. Credit

Union, .bec. (1992), 84 Ohio App.3d 177. However,under Civ.R. 15(B) wher, an issue is ttied withoutobjeotion and consented to, this court may consider

Ihe inatter. ClrandZer v. General Motors Acca,ptance

Company (1980), 68 Ohio App-2d 30. After all, thereason for the mlc of pteading affirmative defensesis notice and avoidance of surprise. Id at 31. In thiscase's App.9(C) st'atement, signed by all, B.E.C. didcharacterize, without using the words, Richey-Bar-retYs withhold"nrg of Coughliu's conunissions as anelection that barred its suit against it. AlthoughB.E.C. urges us ta apply the doctrine of election of

remedies, we elecline to do so.

For the doctrine of election of remedies to apply, atlaast two remedie.s must exist at the same time fromwhich the party claiming the rcmedial rights mustchoose one. Eleefion becomes applicable as a bar toduplicity in recovery when the rcmedial renredies

are inconsistent not merely cumulative. Frederick-

Page 2

son v. Nye (1924), 110 Ohio St. 459. In Frederick-

son v. Nye, the court held when the remedies are in-consistent, it is the election of one that precludesthe oUzer. Furthemxore, election of remedial rightsbars another when the rights are inconsistent andehe election is inade with luaowledge and intentionand purpose to elect. Id at syllabus 2.

In this case, Ricltey-Barrett`s withholding ofCoughlin's commissions for the B.E.C. debt and su-ing B.E.C. for the debt were not inconsistent butcumulative. The staradard for determining inconsist-ency has been so defuied:

"While the determination of whether remedies areinconsistent with each other depends on the facts in

each case, as a general rule, the test is whether the

aZlegations or demands in the one action, or the

facts supporting such action nece>ssarily repudiate

or are repugnant to those of the other action, re-

gardless of the dfference in the forms of action.[Emphasis added.]" IfabLaz v. Prudential Ins. Co.

of Am. (Dec. 29, 1988), Crawford App. No.3-86-27, unreported, quoting 28 Corpus 7urisSecundum (1941) 1066-1068. The bost example ofrepugnancy of two actions can best bo seen in Fred-

erickson v. Nye. In that case, two lawsuits existed.The Seneca County suit affirmed the contract andprayed for money only. 'Che Hancock County suitprayed for a disaffirrnance of the contract with Fre-derickson and urged the holding of the property in

constructive trust for the Nyes.

In applying the stamdards to this case, we concludeRiche,y-Barrett's witldtolding of Couglilin's coin-missions and its lawsuit against E.E.C. were cumu-lative and not ineonsistent and repugnant A cumu-lation of two courses of conduct desigued to collectthe debt owed to it by B.E.C. The ffrst course wasto hold Coughlitis commissions as security for thedebt owed and the second was to sue B.E.C. for thedebt it owed with the intent to reinstate CougliJin'soommissions.

*3 Gisser testified his company withheld commis-sions due Coughlin froni other customers' accounts

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Not Reported in N.E.2d,1995 WL 739616 (Ohio App. 8 Dist)(Cite as: 1995'4'<'L 739616 (Ohio App. 8 llist.))

beoau,ce Coughlin's customer B.E.C. had defaulted.)`Ie fitcther stated his contpany plumed to releasethe commissions onoe it collecteck from its lawsuitagainst B.E.C. From the description and intent ofRichey-Barrett its action can be described as thewitlrholding of the cornnrissions as security for thedebt. The holding of a security interest does not af-fect the existence of an underlying debt and doesnot bar the bringing of an action to colle.et that debt.Wi.ntars Nationad Rank v. Saker (1979), 66 ObioApp.2d 31. 'lherefore, the act of withholding thecommissionsand filing the lawsuit were cumulativenot inconsistent, tliereby making the doctrine ofelection of remedies inapplicable to this case.

Nevertheless, B.E.C. argues the withholding ofCoughlin's oommission constitutes satisfaction ofthe debt, and Richey-Barrett is attempting to recov-er twice by this lawguit. As we indicated earlier,Richey-Barrett is not precluded frorn cecovering thedebt owed to it by B.E.C. B.E.C. cannot benefitfrom the dispute beCween Coughlin and R.ichey-Barrett. Regardless of what happened B.E.C. re-mains 3iable for fzriltue to pay its premiums due andowed to Richey-Barrett.

In aonclusion, we hold in order to establlsh an elec-tion of remedies defense the facts must show a con-clusive aet of election. It must show ]cnowledge,,in-

tent, and pnrpose to elect as between two inconsist

ent remedial rights. Inconsistent remedial rights arethose that are repugnant to one another not merely

cumulative.

Judgntent affirm®d.

It is ordered that Appellee recover of Appellant

their costs herein taxed.

The Court finds there wcre reasonable grounds for

this appeal.

It is ordered thal a. special mandate issue out of thisCoutt directinig the Berea Municipal Court to carrythis judgment into exccution.

A certified copy of this entiy shatl constitute the

Page 3

mandate pursuarrt to Rule 27 of the Rules of Appel-late Procedure. Exceptions.

PA`I'TON, C.J., and JAMES D. SWEENEY, J.,

concur.N.B_ This entry is made pursuant to tlre third sen-

tence of Rule 22(D), Ohio Rtrles of Appellate Pro-cednre. This is an armouncement of decision (seeRtde 26)_ Ten (10) days from the date hereof this

document will be stamped to indicate journaliza-tion, at which time it will becorue the judgment andorder of the court and tune period for revicw will

begin to run.

Ohio App. 8 Disf.,1995.Richey Barrett Co, v. B.E.C. Const., Ino.Not Reported in N1.2d, 1995 WL 739616 (OhioApp. 8 Dist.)

END OF DOCUMENT

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)

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cOnly the Westlaw citation is curiently available.

CHECK 01310 SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OF

LEGAL AUTHORITY.

C:ourt of Appeals of Ohio, Ninth District, MedinaCounty.

CLEMENT A. SAKO, et aL, Plaintiffs-Appellants,V.

ROBERT RU'PLEDGE, Defendant-Appeilee.C. A. No. 706.

October 19, 1977.

APPEAL FROM JUDGMENT ENTERBD IN'fHECOURT OF COMMON PLEAS OF MEDINACOUNTY, OHIO CASE NO. 27606.LUCIEN R. MARINO, Attorney at Law, 1610Standard Building, Cleveland, Obio 44113 forPlaintiffs-Appellauts.

JACK M. ICINNEY, Attorney at Law, 218 BastWashington Street, Medina, Oliio 44256 for De-feudant-Appellee.

DECISION AND TO UR NAL EN7 R P

MAl-IONEY, P.J.

*1 This cause was heard June 6, 1977, upon the re-cord in the trial couat, including the transcript ofproceedings, and the briefs. It was argued by coun-sel for the pasties and submitted to the court. Wehave reviewed each assignment of ennr and makethe following disposition:

The plaintiffs, Clement A. Sako, et al., appeal ajudgment of the Medina Common Pleas Cotn2,overnaling their motion under Civ. R. 60(B)(5) forrelief after judgment. The court found that plaintif2shad not made their motion wiYJtin a reasonable time.

We aR°irm

PAL:'(S

Sako stied Rutledge for conversion of two horsesboarded with Rutledge and for monies owed foralecllical services performed by Sako on Rutledgesfarm. The case was heard before a referee whose re-conimeiidations were approved by thecourt. andjoumaliz.ed on Jn.ne 23, 1975. The rcferee awardedRutledge a default judgment on his couuterclaimwhich alleged au oral cona-act and an agistets lienon the mares and foal. Sako failed to timely reply toRutledge's counterclaim pursuant to Civ. R.12(A)(2). Judginent was awarded to Sako on hisclaim for electrical work.

Sako moved for relief after judgmcnt uuder Civ. R.60 (B). On Jnly 14, 1975, the trial court overruledthe motion. Fif'tecn months later, Sako again filed a60(B) motion. Tlris tirne he alleged fraud had heencommittcd upon the trial court. Sako claims Rut-ledge, Rutledge's wife (Je,an) and Mrs- Rutledge'ssister (Matilyn Ackerman) "peCjured" thcroselvesduring the 1975 trial. In that trial, Rutlerlge andSako contested owuership of a horse foal bom dur-ing the lawsuit. Sako claiined ho owned the foalsince the foal was botn fxom one of Sako's maresboazded at Rutledge's farm. Rutiedge contended heowned the foal since Sako never tendered paynicntfor the foal or payad a. stad fee. Duziarg trial, Rut-ledge and Ackerman testified the foal had been putto death. Jean Rutledge testified that her sister hadinfotmed her of the foal's death.

Sako first learned of the alleged fraud through Dor-is Porepaugh, who had purcbased a foal ftam Rut-

ledge in July, 1974. After talking with the foal'strainer, Jack Noble, on October 5, 1975, Forepauglt,using an alias narned, called Mrs. Sako approxim-ately four times to discuss the foal "that had died

during the lawsuit."

In April, 1976, the Sakos viewed the foal after

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Forepaugh id®ntifzed herself. The Sak•os concludedthe foal was born of their mare, Gay Maid of Wen-lock, which they had boarded with Rutledge.

Forepaugh cancelled the foal's registration paperswith the Morgan Horse Association after veterinari-ans detennined that the foal's age possibly did notmatch the registration papers. After a lengthy hear-ing on the merits of the 60(B) motion, the trialcourt determined the motion had not been madewithin a""reasonable time." Sako appeals the deni-al of that motion.

DISCUSSION

^2 The question of timeliness of a motion basedupon tbird-par[y fraud under Civ. R. 60(B)(5) isone of first impression for this court. The thresholdissue to be determined is whether the false testi-mony regarding the foal's death can be consideredas fraud upon the eomt. While a 60(B)(3) motion,based upon intainsic or extrinsic fraud of an adverseparty, must be filed within one year from judgment,a 60(B)(5) motion, predicated on fraud upon th.ecourt, must be filed within a "reasonable time,"wbich tnay be more or less than one year after judg-ment. See, Cautela Bros, v. McFadden, 32 OhioApp. 2d 329 (1972).

Civ. R. 60(B) provides:

"72elief from judgment or order.

"(B) Mistakes; inadvestence; excusable neglect;newly discovered evidence; fraud; etc. On motionand upon such tenns as are just, the court may re-lieve a paxty or his legal represcntative from a finaljudgment, order or proceeding for the followingreasons: (1) mistake, inadvertence, surprise or ex-cusable noglect; (2) newly discovered evidencewhich by due diligence could not have been dis-covered in time to move for a new trial under Rule59(B); (3) fraud (whether heretofore denominatedintrinsic or extrinsic), misrepresenttiou or othermisconduct of an adverse party; (4) the judgmenthas been satisGed, released or diseharged, or a prior

Page 2

judgment upon which it is based has been reversedor otlxerwise vacated, or it is no longer equitablethat the judgment should ltave prospective applica-tion; or (5) any other reason justifying relief frorrithe judgment. The nrotion shall be made within areasonable time, and for reasons (1), (2), and (3)not more than one year atter the judgment, order orproceeding was entered or taken. A motion underthis subdivision (B) does not affect the finality of ajudgment or suspend its operatiou."

The foregoing subsections are disjunctive andnau-tually exclusive. The catch-all provision cannot beinvoked if one of the specific gronnds is applicable.See, Antonopoulos v. L'isner, 30 Ohio App. 2d 187,193 (1972), accord; Ackermami v. United States,340 U.S. 193 (1950).

Ohio has few reported cases dealing witlr Civ. R.60(B) and most of those concern the substantivegrounds for relief delineated in Civ. R. 60(B)(1)through (5). Adotneit v. Baltimore, 39 Oliio App.2d 97, 102 (1974). Sako claims th3s court shouldrely on tho rationale of Jclm v. 7etm, 155 Ohio St.226 (1951). Jebn, decided prirn' to the enactment ofthe Ohio Civil Rules of Procedm-e, fonnd both ex-trinsic fraud and fraud upon the court. "I'oday, Civ.R. 60(B)(5) reflects the inherent power of a court. toset aside a judgment vitiated by fraud committedduring a previous term of coutt.

*3 False testimony alone does not warrant a fmdingof fraud upon the court. Sako must demonstrate byclear and convincing evidcnce an unconscionablescheine designed to improperly influenee the courtin its decision.England v. Doyle, 281 F. 2d 304(9th Cir. 1960). False misrepresentations made dur-ing trial have usually been denominated intrinsicfraud and t.'nne-bacred by the one year statttte ofI'utxitations. See, Dowdy v. Idawfield, 189 F. 2d 637(D.C. Cir., 1951).

]n construing the nearly identical federal catclx-allprovision, the federal courLs have f'ound Gaud uponthe comt in only the most egregious circmnstances,usually involving officets of the court. Fraud upon

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the coiut has been found to encotnpass: bribery of ajury, employment of counsel to influence the eourt,bribery of judges, involvement of an attomey in theperpetration of the fraud. See, J. Moore's FederalPractice Relief from Judgrnent or Order for Fraudupon the Court, Vol. 7§60.33 (1975). The UnitedStates Supreme Court has contrasted fraud upon thecourt and intrinsic fraud. In Hazel-Atlas Glass Co,v. Hartford-Empire Co., 322 U.S. 238 (1944), an at-tomey was involved in a fraudulent patent scheme.The court stated on page 245:

fraud upon the court must be distinguishedliom a case of a. judgment obtained with the aid of awitness who, on the basis of after-discovered evid-ence, is believed possibly to have been guilty of

perjury"

While the in-court misrepresentations concemingthe doath of the foal do not fall within the tradition-al concept of fraud upon the court as dofinecl by thefederal courts, the fraud alleged is properly assaileduatder Civ. R. 60(B)(5). Marilyn Aekerman andJean Forepaugh carmot be considered adverseparties for purposes of a Civ. R. 60(B)(3) motion.In the absence of clear and convincing evidence tothe contrary, liowever, this court cannot presmuefraud upon the court. Wilson v. Wilson, 14 OhioApp. 2d 148 (1968). Sako's attorney claimed fraudwas perpetrated when Rutledge allegedly sold the"dead foal" to Doris Forepaugh in 1974. No directproof was introduced to substantiate that the foalwas bom from otre of Sako's tnares. Mrs. Sako test-ified sbe could not identify the colt without know-ing the foal's parentage. Ruthledge and his neigh-bor, Delores Gray, testified that the foal was boinfrom a dain owned by Sako.

To prevail on a Civ. R. 60(B)(5) motion, Sako mustdenxonstrate that he has a meritorious claim topresent if, retief is grantcd; that he is entitled to re-1'tef; and, that his motion was made within a reas•on-abte tune. Cr7'E Autonratic Electric, Iuc. v. ARC In-dustries, Inc., syllabus 2, 47 Obio St. 2d 146 (1976). In effect, Sako seeks another opportunity to litig-ate his conversion claim which was lost because, in

Page 3

contravention of Civ. R. 12(A)(2), he neglected toanswer Ruthledge's cotmterclaim for nearly two andone-half years. The practical result of failing to an-swer tlte counterclaim atnounts, nrtder Ohio Civil

Rules, to an admission of the facts in the counter-claim, Tiefel v. Gilligan, 40 Ohio App. 2d 491(1974). By failing to reply to Ruthledge's counter-claim, Sako admitted the validity of the agisters fl-en on his two mares and the foal. There can be noclaim of conversion if Rutiedge has rightful posses-

sion.

*4 Sako admitted he had never given Rutledge anytnoney for the boarding of his horses. Sako's re-sponsibility to pay Rutledge for the care of hishorses is not eliminated because the foal was aliveat the time of trial. Pursuant to his original Civ. R.60(B) motion, Sako was afforded a hearing to de-temiine whether he had a valid defense for his fail-ure to timely respond to the coutttcrclaim. See,Brenner v. Shore, 34 Ohio App. 2d 209 (1973).Sako claimed the judgment should have been setaside on the grounds of excusable neglect becauseSako bad not been notified that Rutledge would askfor judgment on the pleadings and Sako was"waiting" for Rutledge to file an amended counter-claim.

We hold that Sako, having failed to a.tl'hnrativelydemonstrate either fraud upon the court or the exist-ence of a meritorious claim, is not entitled to reliefpursuant to Civ. R. 60(B)(5).

The trial court's discretion was proper in determin-ivg that the Civ. R_ 60(B)(5) ntotion was not titnelymade, See, 11 & K Porter Co. v. Goodyear Tire &Rubber Co. 536 F. 2d 1115 (6th Cir. 1976).

1'he judgment is affirmed.

The court finds that there were reasonable groundsfor this appeal.

We ordcr that a special mandate, directing theCourt of Common Pleas to carry this judgtnent intoexecution, shall issue out of this court. A certitied

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copy of this joumal entiy shall constitute the man-date, pursuant to App. R. 27.

Iinmediately upon the filing lieieof, this documentshall constitute the joumal eatry of judgnient, and itshall be file staxnped by the Clerk of the Court ofAppeals at wlrich tiine the period for review shall

begin to mn. App. R. 22(E).

. Costs taxed to appellants.

PxcepGons. . . . . . . .

BELL, J., and HUNSICK1:12, I., CONCUR.Iiimsieker, I., retired Judge of the Ninth DistrictCourt of Appeals, sitting by assigmnent pursuant toArticle IV §6(C), Constitu6on.Ohio App. 9 Dist.,1977.Sako v. ItutledgeNot Reported in N.E.2d, 1977 WL 199030 (OhioApp. 9 Dist_)

L.ND OF DOCUMI3NT

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VVestlaw.

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cOnly the Westlaw citation is currently available.

CHECK OHIO SUPRHME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OF

LEGAL AITTHORITY.

Court of Appeals of Ohio, Fourth District, GalhaCority:

Mark A. STILL First Party/.Appellant,V.

Pamela STILL, nka Miller Second Partp/Appellee.No. 95CAI5

June 25, 1.996.

Ronald R. Calhoun, Gallipolis, Ohio, for Appellaant.

Richard C. Rodericl- Gallipolis, Obio, for Ap- pellee.

DECISION.AND JUDGMEN'l B7dTRY

Hfil2SHA,Judge.

'a'i Mark A. Still appeals from a judgmem of theC,allia County Court of Conmion Pleas whichdenied his Civ.R. 60(I3) Motion for Relief &omJudgmeat. He assigns the following ennr for our re-

view:

`THE COURT ERRED IN DENYING FIRSTI'ARTY'S [SIC ] THE OPPORTUNITY OF IILATF.STING AND FURTIIER ERRED IN DENY-ING THE MOTION FOR RELIEF FROMJUDGMENT OF AUGUST 2, I995."

Appellant and Pamela Still, nka Miller, wcre di-vorc:ed in 1985. Two children were bom during theperiod of their marriage, Marky, age ten, and Chad,age five. Pamela was given custody of the parties'two mi.nor children aud appellant was required topay child support. Appellant never questioned that

Page i

he was the father of both children until 1994, whenappellant and his current wife, Carolyn, were atPamela's home with the two sons. Marky, the olderson, brought his girlfriend to meet his father andmentioned bow he and his father looked alike.Pamela then made the coinment: "Marky looks likehis dad and Chad looks like his dad." When Markyindicated that. he didn't understand what she meant,Pamela told him to figure it out for himself.

Based upon this statement, appellant questioned tltepaternity of the younger son, Chad. Subsequently,appellant filed a Civ.R. 60(B) motion for relieffrom judgment for fraud, alleging that Pamela knewappellant vras not Chad's father when she admittedthat he was in their divorce proceeding. The courtheld a hearing on appeltant`s niotion and deniedboth his request for HLA testing and his Civ.R.60(B) motion. In its opinion, the cotnt stated thatsince Chad is now fotnteen years old and teu yearshad lapsed since the dissolution of ntarriage, itwould be in Chad's best interest not to perform ablood test at this time. The court also held that ap-pellant had not shown sufficient reason for bringingthe motion_

Jn his sole assignment of error, appellant arguesthat the trial court erred in denying his motion forrelief from judgment and in denying his request forHLA testing. Civ.R. 60(B) provides:

On niotion and upon such terms as are just, thecourt may zelieve a party or his legal representat-ive from a final judgment, order or proceedingfor the following reasons: (1) mistake, inadvert-ence, surprise or excusable neglect; (2) newlydiscovered evidence which by due diligencecould not have been discovered in tixne to movefor a new trial uxxder Rule 59(B); (3) fraud(whether heretofore denominated intrinsic or ex-trinsic), misrepresentation or other misconduct ofan adverse party; (4) the judgment has been satis-fied, released or discharged, or a prior judgmentnpon which it is based has been reversed ox oth-

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envise vacated, or it is no longer equitable thatthe judgment should have prospective applica-tion; or (5) any other reason justifying relief fromihe judgment. 'lhe motion shall be nrade wilhin areasonable Gene, and for reasons (1), (2) and (3)not niore than one year after the judgment, orderor proceeding was entered or taken. A motion nn-der tbis subdivision (B) does not affect the bnal-

ity of a judgrnent or suspend its operation.

*2 The procedure for obtaining any relief from ajuilgntentshatlbe bymoflon as prescribed in

these rules.

A motion for relief finm judgment pursuant toCiv_R 60(B) is addressed to the sound discretion ofthe trial court, and that court's ruling will not bedisturbed on appeal absent a showing of an abuse of

cliscretion. Griffey v. Rcyan (1987), 33 Oluo St.3d

75, 77; Moore v, Emmanuel Family 7Szrining Ctr.

(1985), 18 Oluo St.3d 64, 66. An abuse of discre-

tion involves more than an error of jud;,nnent; itconnotes an attitude on the part of the court that isuwseasonable, unconscionable, or arbitrary. Franlc-

lin Cty. Sheriffs Depl. v, State Frnp. Relatiorzs Bd.

(1992), 63 Ohio St.3d 498, 506; Wilmington Steel

Products, Inc. v. Cleve. F,lec. Illum. Co. (1991), 60Ohio St.3d 120, 122. When applying the abuse ofdiscretion stnnflard, a reviewing courC is not free tomerely substitute its judgment for that of the tritd

court. In re Sane Doe I (1991), 57 Ohio St.3d 135,

138, citing Berk v. Ivlatthervs (1990), 53 Obio St.3d

161,169.

In order to preva't1 on a tnotion for relief from judg-

ment pnrsuant to Civ.R. 60($), the movant mustdemonstxate: (1) a tneritorious claim or defense; (2)entitlement to relief under one of the grounds statedin Civ.R. 60(B)(1) tltrough (5); :md (3) timeliness

of the motion. Rose Chevrolet, Inc. v. Adams

(1988), 36 Ohio St.3d 17, 20, citing GTE Autoneatic

f•,lectric v. ARC Industries (1976), 47 Ohio Si.2d

146, paragraph two of the syllabus; see, also, Buek-

eye Fed. S & L. Assn. v. Guirlinger (1991), 62Ohio Si.3d 312, 314. If any of tlrese tlffee require-ments is not tnet, the nrotion should be overruled,

Page 2

Rose Chevrolet, supra, at 20, citing Svobada v.

Brunswick (1983), 6 Ohio St.3d 348, 351; Hopkinsv. Qvality Chevrolet, Inc. (May 19, 1992), RossApp. No. 1772, unreported, p. 3. Furthermore, if themovant files a motion for relief finm judgment andit contains allegations of operative facts wbichwould warrant relief nnder Civ.R. 60(13), the trialcourt should grant a hearing to take evidence andverify those facts before it rules on the motion.Coulson v. Coulson (1983), 5 Ohio St.3d 12, 16. Inother words, the movant is entitled to an eviden-tiary hearing only where theCiv.R. 60(B) motionfor relief from jttcigment and attached evidenciarymaterial conttz'ai allegations of operative facts,which would warrmit relief under Civ.R. 60(B). In

the Matter of Shell (Oct. 2, 1992), Pait{ield App.No. 12 CA 92, 'anreported, citing Twinsburg Bank-

ing Co. v. Rhea Constr. Co. (1983), 9 Ohio App.3d39.

Ui his brief, appellant argnes that he provided thethreshold evidence of fraud to entitle him to a courtordered IiLA testing which would establish wheth-er he is entitled to relief fiam judgment. The ttialcourt decided that appellanf's motion was not madewithin a reasonable time and that appellant did notprovide sufficient grounds for bringing a motion forrelief from judgment. We will first review thetimeliness of appellant's motion. Civ.R. 60(B)(3)allows relief from judgment based upon fraud of auadverse party. A Civ.R. 60(B)(3) motion must bebrought within one year of the orightal judgment.Appellant brought Itis motion for relief from judg-ntent ten years after the original judgment. Tlrus,appellanEs motion was untimely.

*3 Appellant argucs that he should be granted reliefpursuattt to Civ.R. 60(B)(5), which mo4on niust befiled witltin a reasonable time, but is not restrictedto the one year statute of Iimitations. However,Civ.R. 60(J3)(5) may not be used as a substitute forany of the more specific gmunds provided in Civ.R.60(13). 'I'aylor v. Haven (1993), 91 Ohio App.3d846, 849. Appellant alleges that a fraud has beencommitted on the conrt and, therefore, Civ.R.

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60(B)(5) applies, not Civ.R. 60(B)(3).

We agree with appellant in that the court may applyCiv.R. 60(B)(5) to vacate a judgment vitiated by afraud upon the court. See Civ.R. 60(B), Staff Notes.

Lt Coulson, supra, at. 15, the Supreme Court of

Ohio discussed the concept of fraud upon the eourt:

"One contmentator, however, had providcd thisdef'initiom `"Praud upon the court"should, webelieve, enibrace onty that speeies of fraud whichdoes or attempts to, defite the coutl.ifise3f; or is afraud perpetrated by tlie officers of the court sothat the jndicial machinety can not perforrn in theusual nianner its impartial task of adjudging casesthat are presented for adjudicadon. rraud, inter

partes, wit[iout more, should not be a fraud uponthe court, but redress shontd be left to a motionunder 60(B)(3) or to the independent action.' 7Moore"s Pederal Practice (2 Ed.1971) 515, Para-graplt 60.33. See, also, Serzysko v. Claase Man-

hatian Bank (C.A.2, 1972), 461 F.2d 699; Kup-ferman v. Consolidated Research & Mfg. Corp.(C.A.2, 1972), 459 172d 1072, 1078; Kenner v.Cornmr. of Internal Revenue (C.A.7, 1968), 387F.2d 689, 691. Accord £lartford v. Hartford(1977), 53 Ohio App.2d 79, at pages 83-84."

Appellant alleges that Pamela Still gave false testi-mony during their divoree proceeding, testifyingthat appellant was the fither of Chad Still when sheknew that he was not. Pamela Still was an adverseparty in the divorce proceeding; she was not a thir'dparty nor an officer of the court. It has previouslybeen held that "false testimony alone does not war-rant a finding of fraud upon the court." Sako v. Rut-

ledge (Oct. 19, 1977), Mednra App. No. 706, unre-ported. Typically, such false Fnistepresentations areintrinsic fraud and time-barred by the one year stat-ute of limitations provided in Civ.R. 60(B)(3). Id.

Since appellant's motion alleges false testimony byan adverse party which constitutes fraud underCiv.R. 60(13)(3), not Civ.R, 60(B)(5), it was re-

quired to be filed not more than one year after the

original judginent was entered. Having failed totEmely file his motion, appellant is not entitled to

Page 3

reheffromjudgment

Evc-n assuming appellant's motion was made withina reasonable tixne, appellant did not establish thathe was entitled to relief from judgment for frand. Inorder to grant relief from judgment based on fraud,the movant must establish fiaud by clear and con-

vincing evidence. Wilson v. bPilson (1968), 14 Ohio

App_2d 148, 151; Boaz v. P7azlett (Mar. 16, 1977),

1-1amilton App. No. C-76086, unreported, citingWright and Miller, Federal Practice and Procedure:Civil, Section 2860. "Clear and convincing evid-ence" is evidence wbich will provide in the mittd oftbe trier of fact, a fitm belief or conviction as to thefacts sought to be established. See Cincinnati Bar

Assn. v. Massengale (1991), 58 Obio St.3d 121,122,

and Iri re Meyer (I994), 98 Ohio App.3d 189, 195.it is considered a higber degree of proof than amere `Ireponderance of evidence;' the standardgenerally utilized in civil cases, but, it is less st'riu-gent than the "beyond a reasonable doubt" staudard

ttsed in criminal trials.

*4 As evidence of fraud, appellant presented thetestimmry of his wife, Carolyn Still, who stated thatshe heard Patneia Miller make the eonintent that"Marky looks like his dad and Chad looks like hisdad." Based upon this statement, appellant assertsthat Pamela Miller committed fraud npon the courtduring their divorce proceeding when she told thecourt that appellant was the father of Chad Still.The record reveals that Pamela Miller has neverdenied that appellant was the father of their twosons, Marky and Chad. 1)aring the hearisng on ap-pellant's motion, Pamela testified that appeliant wasChad's father. Purthermore, Chad was bom duringappellant's marriage to Pamela, which creates therebuttable pre.sumpGon that appellant is Chad'sfather. See R.C. 3111.03. Accordingly, one slate-ment which might imply otherwise does not estab-lish fraud by clear and convincing evidence.

Based trpon the record, we cannot say that the. trialeourt abused its discretion in denyiug appellant's re-quest for 13LA testing and for relief froin judgmont.While we may have ordered tlre HLA te.sting, we

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are not to substitute our judgment for that of the tri-al court. As is evidenced by its opinion, the uialcourt considered the age. of the child and the lapscof time between the dissolution of matriage and ap-pellant's motion. 1'he trial courL determined that itwould not be in Chad's best interest to snbmit himto DNA testing at ttus time.

We cannot say that its decision was uiueasonable,arbitrary, or unconscionable. Accordingly, appel-lant's assignment of error is without merit. aud thetrial court'sjudgmentis affirmed.

. JUDGMENPEN2RY

It is ordered that the 3IJDC.MENT BE .A1'FIRMEDand that Appellee recover of Appellant costs hereintaxed.

The Court finds there were reasonable grounds forthis appeal.

It is ordered that a special mandate issue out of thisCowt directing the Gallia Cotmty Common PleasCourt to carry this judgment into execu6on.

Any stay previously granted by this Court is herebytetmiuated as of the date of this Entry.

A ceztified copy of this entry shall constitute themandate pursuant to Rule 27 of ihe Rules of Appel-late Procedure. Exceptions.

ABELE, P.J. and STBPHENSON, J., concur in

judgment and opinion.Ohio App. 4 Dist.,1996.Still v. StillNot Reported in N.E.2d, 1996 WI. 362259 (OhioApp. 4 Dist.)

END OF DOCUMENT

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Westtavv

Not Reported inN.E.2d, 1985 WL 8539 (Oluo App. 8 Dist.)(Cite as: 1985 WL 8539 (Obio App. 8 Diat.))

cOnly the Westlaw citation is currently available.

CHECK OI-IIO SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OF

L.EGAL AUTHORPIY.

Cotut of Appeals of Ohio, Eighth District,Cuyaltoga County. . . . .

ROBERT JEFPRL;Y STONE, Plaintif€Appe lantV.

CITY OF ROCKY RIVER, ET AL., Defendants-Ap-pellees

NO. 49434.49434

October 31, 1985.

Civil appeal from Common Pleas Court Case No.074,010.AFFIRMED.

For Plaintiff Appellant: David B. Gallup, Zidar andGallup, 75 Public Square, Suite 813, Cleveland,Ohio 44113.

For Defendants-Appellees, City of Avon, Patrol-men R.C. Petersen and John R. Vilagi: Thomas ).Smith, McCray, Muzilla & Smith Co., LPA, 940Lorain Boulevard, P. O. Box 119, Elyria, Ohio44036.

For Defendants-Appellees, City of Rocky River andPatrolman Robert Ryan: Russell A. Olsen, 21012Hilliard Boulevard, Rocky River, Ohio 44116.

JOURNAL ENTRY AND OPINION

BROWN, J.

*1 This is an appeal from entry granting summatyjudgtnem ander Civil Rule 56 to appellees City ofAvon and patrohnen R.C. Petersen and John R. Vit-agi of the City of Avon. Appellant. Robert leffrey

Page 1

Stone asserts on appeal that he should have beengranted summary ,judgment rather than appellee.Failing that, he argues that eontested material factissues exist such as to render sunmiary judgtnentfor appellee improper. We affum.

Constming the docuinentary evidence produced be-low in a light most favorable to appellant, the fol-lowing facts appear on the record:

Appellant was picked up and taken into cnstndy byofficers of the Avon Police Deparlment on April24, 1983, on suspicion of baving cominitted certainacts of vandalisin. He was interrogated in a mannerwhich appellees admit "crossed the line of properquestioning." After such questioning, appellant washandcuffed to a chair and lcft alone in a room witha pocketknife, which had knowingly been left in hispossession by the police. Appellant managed to usethe pocketknife to open up the veins in his arni.

On November 14, 1983, appellant, in considerationof $2,000, executed a release of claims, pursuant toadvice of counsel, releasing appellees from any andall liability connected with the incident. Appellant'scounsel and appellant believed at the time of the re-lease's execution that the polico officer primarilyresponsible for improperly interrogating appellantwas a Rocky River officer ratber than an employeeof the City of Avon Lake. `11iis belief was commu-nicated to appellees' insurance adjustor, and, al-though he Imew it to be erroneous, tlte adjustor didnot inform appellant or his counsel of such prior toexecution of the release.

It was understood by the parties when the releasewas executed that appellant had substantially re-covered from the injuries suffered from the April,1983 incident. After the release was execnted, itwas discoverecl that because of the incident appel-lant had sustained Iiidden psychological damage.posttraumatic stress disorder-not suspected earlierbecause of appellant's active denial of psychologic-al difficulty. This heretofore uwueoogniz,ed datnage

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will require tlierapy costiitg between $7,000 and

$10,000 to treat.

Appellant filed a "Complaint for Money Only"against appellees and others on April 24, 1984, al-loging intentional, willfttl, wanton and maliciousacts leading to physical and emotional injury, aswell as a clairn under 42 U.S.C. § 1983. Appellees'answer pleaded, inter alia. that the November 14,1983 release precluded the action. They sub-sequettly sought and were granted sununary judg-ment, apparently on that basis.

Appellant's two assignments of error may be de-cided togetlrer. T'bey are:

1. TI-IE TRIAL COtTRT ERRED TO TI^IE PREJU-DICE OF PLAINTIFF-APPEL.LANT IN GRANT-ING TIiE MOTION FOR SUMMARY 7(IAG-MEN'I' OF DEFENDANTS-APPELLEES, CITYOF AVON, PETERSE'N AND VILAGI.

2. THE TRIAL COURT ERRED TO TI-IE PItE7U-DICE OF PLAINTIFF-APPELLANT IN FAILURETO GRANT SUMMARY JUDGMENT IN HISFAVOR UPON THE MO'fIC>N FOR SUMMARY7UDGMEN'I' OF DEFENDANTS-APPELLEEES,CITY OF AVON, PETF=ICSEN AND VILAGI.

*2 Appellant essentially malces two argutnents tosupport his assertion that summary judginent shouldhave been grantecl in ]ris favor rather than ap-petlees, or tbat, at the very least, the evidencedemonstrates there was a material factual disputerendering summary judgment for appellees inappro-priate.

Appellant's first arguinent proposes that if it wereaccepted as true that appellees' agent knew of ap-peIlant's and his cotmsel's inisapprehension con-ceming which of'ficer was primarily responsibte fortbe iinproper interrogation, and did not tell appel-lant, then appellees would be guilty of fraud byomission concerning the release. Such fraud, appel-

Page 2

lant contends, makes the release of appellees void-able at his option.

Even if appellant's theory of fraud by ontission asapplied to the facts of this case were accepted,somethiug we need not here decide, it is firmly es-tabiished in Obio law that a party to a release maynot obtain a judgment against the other patty to thatrelease concerning its subject matter without firstretunriag or tendering back the consideration he re-ceived in return for forfeiting his claims. For ex-ample, in ani attsm Life Insm'ance, Co. v. Burke(1903), 69 Ohio St. 294, it was held that:

...[W]ITere a party to a compromise desires to setaside or avoid the same and be reemitted to his ori-ginal rights, he must place the other party in statuoquo by returning or tendering the retum ofwbatever has been received by him under suchcompromise, if of any value, and so far as possible,any right lost by the other party in consequencethereof. In an action to rescind, the petition shouldallege the fact of sach return or tender, prior to, orat least contemporaneous with, the commencementof the suit. Further, as a general proposition, thenile obtains even though the contract of settlementwas induced by the fraud or false represenGiGons ofthe other party; the ground being that by electing toretain the property, the party must he conclusivelyheld to be bound by the settloment

Id. at 302-303.

ft so -31 allenberear v. Motorists Ntutual Insur-ance Co. (1958), 167 Ohio St. 494; icklesirra v.B& Q a' ro d(1949), 151 Ohio St. i; j{ef^c, Itet, v.B;own (1947), 49 Ohio Law Abs. 25.

In the instant case, there is no indication that appel-lant has ever taken legal action to rescind the re-lease between him and appellees. I3owever, even ifhis Complaint for Money Only were construed asimplicitly seeking resoission, the record is cotn-pletely devoid of even an allegation that he has rc-tumed or tendered back to appellees the considera-tion he received for executing the release. Since the

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above authorities clearly require such return ortender before an action concerning the subject mat-ter of the release may lie, appellaut's first argument

in support of his assigmneits fails.

tI.

Appellant's second argument in support of his as-sertion that he was entitled to summary judgment,or that in any event appellees were not, is that thepartieslabofed nnder a mutual mistake concemingthe extent of appel[ent's injuries when the release

was executed.

"'3 Appellant relies p'incipally for this argument ons oa v. S[amiard Oil Cont7san -(,1964), 177 OhioSt. 149. In that case, the Olrio Supreme CourC heldthat a release may be avoided where the releaserdemonstra€es mutttal mistake regarding a fact ma-teriad to the nature, extent or gravity of injury, un-ess the parties intended that claims for all injurie.s,known or imlrnown at the time the refease was ex-ecuted, be relinquished. ,oan,*upLa at 152.

The Slgw coutt cited eertain factors to consider indetersnining the intent of the parties:

"* ** Stated favorably to the party seeking rescis-sion or canceltation, these factors are: Theabseneeof batgaining and uegotiating leading to settlement;the releasee is clearly liable; absence of discussionconcerning personal injuries; the contention that theinjuries were in fact unknown at the ti3ne the re-lease was exeeuted is reasonable; an inaderluateamount of consideration received compared withthe risk of the existence of unknown injuries (seeCasev v. t tor, sujKq [(1963), 59 Cal- 2d 97, 378P.2d 5791, and authorities cited therein); haste bythe releasee in securing the release (annotation, 71A.L.R. [2d], 82, 169 [19601); and the terms of therelease exclude the injaries alleged (annotation, 71A.L.R. [2d], 82, 156 [1960])." 519pT3. suora, at 153.

We observe at the outset that appellant's second ar-gument tnust fail for the reasons already stated 'urejecting his first argnment-namely that, assunring

Page 3

tlre release to be voidable, there is nothing in the rc-cord to indicate he has affumatively sought legalrescission of the release, and that he has certainlynot demonstrated any effort to return the considera-tion he received for it. We shall nonetheless addressthe issue of mutual mistake as though appellant'sfailure to seek rescission and to tender the proceedsof the release were not a barrier to his cause of ac-tion.

In applying the factors cited in Sloan. supr..,^ itshould be noted that appellant was represented bycounsel in negotiating the settlement and compre-hensive raleasc. The release was not executed untilahnost seven months after the incident. Althougbthe behavior of the police in this case may wellhave been reprehensible, the record shows that ap-pellant was already suffering psychological diffi-culty prior to the incident. Moreover, unlike thesituation in Sloan. supra and the other case cited byappellant, Wovma v. _' fe (1483), 11 Ohio App.3d 288, where the releasees received only nominalsums ($20 and $25, respectively), appellant here re-ceived $2,000. Finally, the reasonableness of appel-lant's ignorance of his injuries is highly question-able, considering the fact that he and his counselhad almost seven months in wbich to determine thedamage he had suffered for the purpose of artivingat a reasonable settlement figure. While the evid-ence may show that appellant's injury was hidden,there is no evidence that it was unpredictable or mt-ascertainable durhtg the negotiation period.

*4 Thus applying the factors set out in SIoan, suora,we find the record supports the conclusion that theparties intended the release to prcclude appelloes'liability for the injury appellant now asserts he suf-fers from the incident which was the snbject of therelease. Accord'tugly, appellant's second argumentin support of his assignments fails.

Judgment affmned.

It is ordered that appellees recover of appellanttheir costs he€ein taxed.

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The Court finds there were reasonabte grouuds forthis appeaf.

Tt is ordered that a special mandate issue out of thisCourt directing the CoFnznon Pleas Court to canythis judgment into execution.

A oettified copy of this entry shall constitute themandate pursuant to Rule 27 of the Rules of Appel-late Procedure.

$TiILLMAN P..T, anct(Retired, of the Eighth AppoFlate District, Sittittg by

Assignment)

llAI3 7N s J CQNCTJR.(Of ttre lTth Appellate District, SiLting by Assign-

ment)

WILLtAN B. BROWN (Retired, of the Supreme

Court of Ohio, Sittiug by Assignment)

N.B. "rhis entty is made pursuant to the third sen-tence of Rule 22(D), Ohio Rules of Appellate Pro-cedure. This is an announceincnt of decision (seeRnle 26). Ten ( 10) days from the date hereof thisdocument will be stamped to indicate joumaliza-tion, at which tiune it will become the judgment andorder of the court and time period for review willbegin to sun.

Ohio App., 1985.Stone v. City of R ocky RiverNot Repotted in N.B.2d, 1985 WL 8539 (Ohio App.8 Dist.)

LTTD OF DOCUMENT

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PCHECK OHIO SUPREME COUR'I' RULES NORREPORTING OF OPINIONS AND WEIGHT OF

LF;GAL AUTIIORITY.

Court of Appeals of Ohio,Eighth District, Cuyahoga County.

Mark S. WEISMAN, et al., Plaintiffs-Appellants.V.

Jay L. BLAUSHILD, et al., Defendants-Appellees.No, 88815.

Decided Jan. 24, 2008.

Civil Appeal from tlie Cuyahoga County CourY ofConunon Pleas, Case No. CV-571769.David I. Pomerantz, Potnerantz & Cmsby Co.,LPA, Maple Ilts., 011, attomey fot appellants.

Mark R. Koberna, Daniel D. Domozick, Stephe.n B.Doucette, Rick D. Sonkin, SonJdar & Koberna, Co.,L.P.A., Cleveland, OI-I, attorneys for appellees.

Before BOYLB, J., KILBANE, P.J., andCELEBREZZE,J.

BOYLE, M.J., J.

*1 (E I) Plaintiffs-appellants, Mark S. Weisman,his wife, Ileidi B. Weisman, and their two mmorchildren, appeal from a judgment of the CuyahogaComlty Court of Common Pleas, granting summaryjudgtnent to defendants-appellees, Jay L. Blausbild,president, CEO, and majority shazeholder of Fam-ous Enterprises, Inc., Famous Matrufacturing Co.,and Famous Distribution, Inc. (collectively"Famous"). For the fotlowing reasons, we affirm.

{¶ 2) In September 2005, plaintiffs filed suit.against defendants, alleging that defendant.s fraudn-Iently or negligently misrepresented to plaintiffs theamount of company stock plaintiffs owned dtuing

Page I

contract negotiations that occurred on April 12,2002. The negotiations involved Mark Weisman'scontinued empioyrnent at Famous.

(¶ 3) According to the eomplainat, Mark Weismanentered into an employment agreement with Fam-ous in Febtuary 1991, becorning vice president andgeneral counsel for Famous. Sotnetime in 2001, adispute arose between the parties as to Mark Weis-man's continued eniployment status, as well as theamount of Famous stock plaintiffs owned.

{°,1 4) Specifieally, plaattiffs claimed that at theApril 12, 2002 negotiation meeting regarding b'IarkWeisman's employment mntiact., Jay Blaushild andoutside counsel for Famous represented to MarkWeisman that plaintiffs owned 2.19 percent ofFanious stock as of December 2000, 2.56 percent asof December 2001, and that ata additional transferto plaintiffs was being made, so that by April 30,2002, plaintiffs would own 2.94 percent of Famousstock. Plaintiffs alleged the representations werefalse, and that no additional transfers were rnadeafter December 2000. As such, plaintif£s onlyowned 2.19 percent of Famous stock.

(¶ 5) Plaintiffs further clainied that defendantsmade such misrepresentations to cntiee plaintiffs toenter into a Comprehensive Settlement Ageement.Plaintiffs maintained that tlrey relied on the allegedmisrepresentations to their detriment when theyentered into the Comprehensive Settlement Agree-tnent on May 14, 2003.

{I 6) Defendants answered the complaint, denyingany misrepresentations were made, but adniittiugthat plaintiffs only owned 2.19 pere.ent of Famousstook and that no further stocks had been trans-feffed to plaintiffs.

{¶ 7) Defendants also filed eotmterclaims againstpla'nttiffs seeking a declaration from the trial courtthat plaintiffs' claims were barred by the Compre-hensive Settlenient Agreetnent. 11re Conrprehensive

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Settlement Agreetnent, attached to defendants' an-swer and counterclaims, contained a"Release andWaiver" provision. In it, Mark Weisman agreed torelease defendants "from mty and all claims, de-mands, and causes of action of any nature or de-scription whatsoever which Weisman might haveagainst any such parties[.]" Defendants alleged thatplaintiffs breached the release in such agreementand demanded costs and attorneys' fees.

{}j 8) On May 3, 2006, plaintiffs filed a motion tostrike defendants' counterclaims. Defendants op-

posed the motion.

'2 {11 9) In June 2006, defendants Blaushild andFamous moved for sununary judgment. In their nio-tion, defendants argued that they were entitled tosummary judgtnent bccause plaintiffs could notdemonstrate genuine issues of matetial fact as toany of the elements of the alleged fraad. Alternatively, defendants argued that even if plaintiffscould prove fraud, defendaatts would still be eirtitled to summary judgment because plaintiffs didnot tender back money and other bene6ts they re-ceived when plaintiff Mark Weisman entered intothe Comprchensive Settlement Agreement, releas-ing defendants from "any and all claims" againstthem.

{¶ 10) Defendants Blaushild and Famous alsomoved for partial summary judgmeit on their conn-terclaims. Defendants main.taiued that Mark Weis-man breached the Comprehensive SettlementAgreement by violating the release provision, andthat they were entitled to judgment as a matter oflaw on that issue, and if granted, only costs and at-torneys' fees would remain to be adjudicated.

{g( 11) In their respouse, plaintiffs argued that theevidence raised getuine issues of material fact as towhether fraud occurred, either intentionally or neg-ligently. They fnrtirer contended that the tender-back rule did not apply to their intentioaaal fraudclaim since they sought monetary damages, and notequitable rescission, nor did it apply to negligent

niisrepresentntion.

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{17 )2) On September 7, 2006, the trial comt deniedp3aintif'fs' motion to strike defendants' eounter-claims. And on September 14, 2006, the trial court,in an interlocutory order pursuant to Civ.R. 54(B),granted summary judgment to defendants in part,on plaintilhs' claims, leaving only defendants' coun-terclaims mid dantages to be acijudicatecL

(1(13} In its September 14, 2006 journal entry, the

trial court granted summary judgmcut to defendautsbecause it found that "the fraud alleged in this caseis fraud in the inducement," and therefore accord-

ing to Haller v. Horrer Corp. (1990), 50 Ohio St.3d

10, 552 N.E.2d 207, plaintiffs "must first tenderback the consideration they received for making therelease." Because plaintiffs had not done so, the tri-al court concludecl that detendants were en6tled tojudgment as a matter of law on plaintiffs' claims.

{'ij 14) lt is fi-om this judgment that plaintiffs ap-peal, raising thc followuig two assignments of er- ror:

{¶ 151 "[1.] The Trial Court en'ed in granting sum-mary judgment in favor of Defendants-Appellees,based on tlre misapplication of the case of Haller v.Borrer Coep. [1990], 50 Ohio St.3d 10, 552 N.E.2d207, where genuine issues of materials [sic] fact ex-ist, and Defendants-Appellees are not entitled tojudgment as a matter of law.

{¶ 16) "[2.] The Trial Court erred in denyingPlaintiffs-Appetlants' Motion to Str$ce Defendants-Appellees' Comrterclaun, where suelt Counterclaimis insufficient as a matter of law."

{¶ 17) hl their first assignment of error, appellantspresent two issues for our review. Appellants Ptrstargue that. ihe trial court erred when it granted sum-mary judgment "on a single ground, based on onecase: Halter, supra," concluding that the tender-baek rule applied to bar appellants claims. Appel-lants then contend that the trial court erred when itgranted summary judgment on their negligent mis-representation claim, maintaining that the tender-back rule does not apply to negligent misrepresent-

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ation.

Summary Judgment Standard of Review

*3 {¶ 18) A reviewing court reviews an award ofsatmmary judgment. de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671N.E2d 241. Tirerefore, this court applies the samestandard as the trial court, viewing the facts in thecase in the light most favorable to tlre nonmovingparty and iesolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward C.o.(1983), 13 Ohio App.3d 7, 12, 467 N.E.2d 1378.

{¶ 19) Pursuant to Civ.R. 56(C), summary judg-ment is proper if:

{¶ 20} "(1) No ge,nuine issue as to any rnaterial factremains to be litigated; (2) the ntoving party is en-titled to judgment as a matter of law; and (3) it ap-pears from the evideuce that reasonable minds cancome to but one conclusion, and viewing sueh evid-ence most strongly in favor of the party aga'nrstwhom the motion for summary judgment is made,that conclusion is adverse to that party." To prevailon a motion for summary judgment, the party rnov-ing for suinmary judgment must be able to point toevidentiary materials that show that there is nogenuine issne as to any material fact, and that themoving party is entitled to judgrnent as a matter of

law. Dresher v. Burt (1996), 75 Ohio St.3d 280,293, 662 N.E.2d 264. Once a moving party satisfiesits burden of supporting its motion for summaryjudgment witlt sufficient and acceptablc evidencepursnant to Civ.R. 56(C), Civ.R. 56(E) providesthat tbe non-moving party may not rest upon themere allegations or denials of the moving party'spleadings. Rakher, the nonmoving party has a recip-rocal burden of responding by setting forth specificfacts, demonstrating that a "genuine triable issue"exists to be litigated for trial. State ex ref. Zi.mmer-

rnan v. Tornpk-ins (1996), 75 Ohio St.3d 447, 449,663 N.E.2d 639.

Releases and tlre Tender-Xlack 12ate

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{¶ 21) Generaily speaking, validly executed re-leases are enforceable. "A release of a cause of ac-tion is ordinarily an absolute bar to a later action onany c3aim encompassed within the release." 1'3aller,supra, at 210- In the present case, appellant MarkWeisman unambiguously-and broadly-released ap-pellees from:

{1122} "any and all claims, demands, aud causes ofaction of any nat.ure or description wliatsoeverwluch Weisman might have against any snchparties * ** occurring on or before the date of [the]Agreement[,] * * * inclnd[ing], among other things,claima based on the legal theorios of wrongful orunjust termination, bteaeh of contract (express orimpGed, and including, without limitation, a certainL'̂ mployment Agreement. dated February 1, 1991 * **), promissory estoppel, negligent or intentional(tortious) conduct, negligent or intentional inflic-tion of emotional distress, defamation, breach ofany implied convenant of good faitlt and fair deal-ing, and any and all forms of employnzent discrim-ination and including cl.a'nns for attomeys' fees, ex-penses and costs related to any of the foregoing[.]"

{I 23} In Taslc v. National City Bank (Feb. 10,1994), 8th Dist. No- 65617, 1994 Ohio App. 1.E:XTS437, at 4, 1994 WL 43883 this court explained:

*4 {11 24) "A release ordinarily operates to extin-geush a right in exchange for soine considerationand efPectively operates as an estoppel or a defenseto an action by tlie releasor. As such, it is a contractbetween parties, enforceable at law subject to theniles governing the construction of contt'acts.Whether a release operates upon a ccrtain liabilitydepends entirely upon the intention of the parties,wbich is to be gatlaered frorn the language of the re-lease and the statc of facts then existing. lf theparties to a release intend to leave some th'utgs ontof a release, then 'their intent to do so should bernade manifest.' VVhen the terms of a contract areunambiguous, courts will not, in effect, create anew contract by finding an intent not expressed inthe language employed by the parties. Moreover,when the parties have negotiated the release wittr

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the assistance of legal counsel, and both sides haveagreed to the ]anguage included in the release, thereis an assumption that the parties are fully aware ofthe ternts and scope of their agreenaent." (lnternalcitations omitted).

{i( 25) To avoid the release, the releasor must al-lege that the release was obtained by fraud and thatbe bas tendered baclc the consideration received for

the release. Haller, supra, at 210, citing Manhatten

Life Ins. Co. v. Burke (1903), 69 Ohio St. 294, 70

N.6. 74, In Halle; the Ohio Supreme Court went to

greatlengtlas to distinguish "fraud in the factum"(which would make the release "void" and thetender-back rule would not apply) and "fraud in theinducemen£' (which would tnake the release"voidable" and the tender-back rule would apply).Jn the case sub judice, however, there is no disputethat the alleged fraud, if tme, would be fraud in theinducement. The question, as appellants plu'ase it, iswhether the tender-back rule applies when a"defreuded party elects to sue for rnoney damagesat law, rather than for the equitable relief of resais-

siOn."

{1126} The policy behind the tender-back rule whenthe patties agree to a release provision is that thelaw favors the prevention of litigation by the com-promise and settlcnnent of controversies. Haller at

211, citing 6Phite v. Brocaw (1863), 14 Ohio St.339, 346. Therefore, "a releasor ougbt not be al-lowed to retain the benefit of Itis act of compromiseand at the same time attack its validity when he un-derstood the nature and consequence of his act, re-gardless of the basic nature of the inducement ein-ployed." Id., citing Shallenberger v. Motorists Mut.Ins. Co. (1958), 167 Ohio St. 494, 150 N.B.2d 295."In that event, tlae consideration should first be re-tuzned so that the parties may be placed in the posi-tions they enjoyed prior to the practice of the fraudalleged." Id.

(1 27) Appellants maintain that Haller is distin-guishable because "the bolding in Haller is limitedto cases in which the entire underlying contract isin tbe nature of the release." Appellants claim that

1'age 4

iu this case, the release was not given in exchangefor the settlement agreentent; but rather "the releaseis but one of twenty (20) provisions." We disagree.Although the amount of money and benefits theHallers received in their settlement was much lessthan what the Weismans received, the facts arestrikingly simitar.

*5 (1281 In Haller, after relations between IlaHerand bis employer broke down, they entered into asettlement agreement wltcre Haller agreed to re-lease hisclaimsin exclsangefor $50,000, plus$3,436.86 for medical benefits and arbitration fees.klaller later alleged there was fraud in the negoti-ation of the settlement it.self. The court Ire1d that be-cause Haller alleged fraud in the inducement, andtherefore the settlement agreement and release wereonly voidable, that "in order to attack that releasefor fraud the Hallers [were] first required to tenderback the consideration they received in the amountof $50,000 and other benefits." Id. at 15, 552N.E.2d 207.

(1 29} Appellants do not dispute tha.t appellantMark Weisman did not knowingly and voluntarilyagree to release defendants from "any and allclaims." They argue, however, that the release"cannot be used by the [appellees] as a sword to dc-feat this claini," because tttc tender-back rule inHaller does not apply. "fhey cantend it does not ap-ply because they did not seek rescission of the con-tract; but instead chose to bring their claini formoney damages. Again, we disagree.

(¶ 30) Appellants' proposition that "[t]he Haller

rule only applies to a narrow sub-set of fraud in theinducement cases: Those in which the aggricvedparty elects to seek equitable relief of rescission ofthe contract," is simply wrong- (Emphasis sic.)General contractual law governing election of rem-edies has nothing to do with the specdfic Ohio rulegoveming releases. Jacobs v. Invisible Fence Co.,Inc. (C.A. 6, 1999), No. 98-4549, 1999 U.S.App.LEXIS 32201, at 7, 1999 WL 1204876 citing Sokolv. Swan Super Cleaners, Inc. (1985), 26 OhioApp3d 128, 498 N.E.2d 503.

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(131) The law in Ohio goventing releases is wellsettled. In Jacobs, supra, the Sixtlt Cn-cuit C.orut ofAppeals tboroughly reviewed Haller, its reasoning,and two prior Ohio Supreme Coiiit cases, which theHaller court also relied on and whieh set forth Ohiolaw regarding releases: P%cklesimer v. Baltincore &Ohio R. Co. . (1949), 151 Ohio St. 1, 84 N.E.2d214, and Shallertberger, supra.

(¶ 328) The appellants in. Jacob.r argued, as they doin the present case, that they should have been ableto "eithet' rescind the agreemcnt or pursue an inde-petdent action for fraud." &eoause they had signeda release, the Sixth Circuit explained wby theycould not do so:

{1 33) "In Picklesirner, the Ohio Supreme Courtfirst addressed whether an action for fraud in the in-ducement. of a release may lie absent rescission ofthe release and tender of the consideration paid.11te Picklesimer court distinguished between a re-lease that is void and one that is voidable_ Anagreement is void when the party has been fraudu-lent.ly prevented from knowing that he or she hassigned a release or the contents of the release. Id. at5. 84 N.13.2d 214. In contrast, an agreement ismorely voidable when the party alleges fraud ormisrepresentation as to the facts inducing the partyto settle. Id. Where the release is merely voidable,tlie Picklesirner court beld that a claim of frandbased ott misrepresentations inducing a settlementand release may not be maintained without t-u'stvoiding the release and tendering back any consid-eration paid. Id. at 7, 84 N:F 2d 214. The Pickles-

imer cotixt considered and rejected plaintiffs claimthat he sought damages independent from the per-sonal injury damages settled in the original action, Id

*6 {11 34) "Subsequently, in Shallenbeger, thecourt reaffirmed and extended f'icklesimer. In Shal-

lertberger, the plaintiff was injured in an auto-mobile accident allegedly caused by the negligenceof anotlrer. In the same aacident, her atieomobilewas damaged. Plaintiff first sought to be paid bythe defendant, for the damages to her car. The agent

Page 5

of the defendant, the insurer, allegedly falsely andfraudulently represented to her that it was necessaryfor her to sign a release before receiving compensa-tion for damage to her car, and falsely representedthat signing the release would have no effect on herrights to be compensated for her personal injtuies.When plaintiff later sought recovery for persoualinjurics, defendant claimed that the paper plaintiffsigned constituted a complete release and operatedas a defense to plaintiffs personal injury claim.

{1 35) "Inre.sponsee [the] plaintiff (inShallenber-

gerJ brought an action for fraud not against the ori-ginal defendant, but against his agent, the instirancecarrier. The Shallenberger court held that althouglithe defendant in the fraud action was not the de-fendant released by plaintiff, in order to maintain afraud action against the agent, plaintiff was first re-quired to set aside the release and tender back thcconsideration paid. Id at 501-02, 150 N.E.2d 295.Tb.e court tuasoned that damages induced by thefraud wcr<. indistinguishable fi-om damages for pet=sonal injuries. 'hhe court declined to pernnit the jury

to engage ibt speculation regarding the possibility ofseparable and independent damages caused by the$aud alone. Id. at 503, 150 N.13.2d 295.

{¶ 36) "Finally, in Haller; the Olrio Supreme Courtagain considered the ques€ion. In Haller, theplaintitT'contended that he was discharged in viola-tion of a contract of employment and was deniedcontractually owed cotnpensation. Ilaller invokedthe axbitration procedures contained in his employ-ment agreem.ent. Just before the arbitration hearing,Haller and his wife settled their claims and relea.sedthe corporation. Subsequently, lialler sought addi-tional recovery frorn both the cbief executive of-ficer and the company. 1-Ialler alleged that he hadbeen induced to settle the action before the arbitra-tion hearing when the chief executive officer of thecompany made false threats affecting the value ofhis claim. In flaller, as in Picklesimer and Shallerr

,berger, the cotut again concluded that whea mis-representations by a party induces another to settlea claim on unfavorable terms, the agreement is not

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void, but merely voidable, and can be cont.estedonly after rescission and tender of consideration.I3atler at 15, 552 N_E.2d 207." 3acobs at 7-10.

(¶ 37) Thus, the law in Obio goveining releases isclear. 13ecause of the release, appellants did notliave a choice of remedies. Sinee appellant MarkWeisrnau agreed to the release provision in ex-change for consideration in the Comprelrcnsive Set-tlement Agreement, they only had one option. They

first had to rescind and tender back the considera-tion-before they could britig their suit. ml

FNt. The law on ttre question of availablereniedies for fraud in the execution of a re-lease is not the same in all states. InDi$abatirw v. United States Fidetity &

Cruaranty Co. (1986), 645 F.Supp 350, theUniied States District Cotn't for Delaware(addresshtg Delaware law), disagreed withthe reasoning of the Ohio Supreme Court

in Shallenberger, supra. DiSabatino at 354

("the fallacy of this position is evident").'i'he DiSabatino court conclnded that the

plaintiffs could sne the defendant for fraudwithout setting aside the release based on athree-prong rationale. "First, a settlementagreetnent is a contract for which consider-ation has passed to both sides; a plaintiffwho is fraudulently induced to relinquish aclaim has certainly lost something, andsimply allowing for rescission of theagreement does not take inta account theproblems assaciatsd with the passage oftinte, e.g., eosts, procedural difficulties.Second, 'simply as a matter of policy, thiscause of action should exist'; otberwtise, an

lmscrupulous pasty would have nothing tolose by defrauding a plaintiff to settle a tortclaim. Third, a defrauded party niay be en-titled to punitive datnages that would notbe availablc if the original action was rein-stated through rescission.° E.J. Dupont DeNernours and Co. v. PTorida Evergreen Fo-

Liage (1999), 744 A.2d 457, 464 (a

Page 6

Delaware Supreme Court case explicitlyendotsing the holding of DiSabatino).

*7 (138) The appellants in Jacobs further argued,as appellants also do in the case at bar, that if thetender-back rule applied, then the court "shouldcarve out an exception to the Ohio nsle for thosecircumstances in which tendering back the consid-eration paid is either impossible or impracticable."Jacobs at 10-11. Appellants here maintain that "itwould be impossible to ealeulate the portion of theconsideration givcn in exchange for thereleaseonly." For the following reasons, this court does notagree with this proposition.

(¶ 39) Appellants cite Lewis v. Mathes, 161 OhioApp.3d 1, 829 N.E.2d 318, 2005-Ohio-1975, insupport of this argmnent, arguing that beeause thegeneral release provision at issue did not spec.ifywhat amount of consideration was given for the re-lease, they should not have to tender it back. Appel-lants claim that in Lewis, the plaintiff was only re-quired to tender back a specified portion of Qte con-sideration; i.e., $68,000, that was given in exchangefor the release. A carefui rcview of Lewis reveals

the opposite.

(140) Jn Lewis, the plaintiff argued that he shouldnot have to tender back the $68,000 to avoid the re-lease and pursue his claims-because "the monetaryconsideration he ir,ceived was solely for the pur-chase of his stock as the value determined by thecotporate valuation," and that it was not received"in exeltanye for the inutual release." Id. at ----7,829 N.E.2d 318. The defendants argued that "the$68,000 payinent was part of a total package ofconsiderations given in exchange for hoth the stockand the release." Id. at ----28, 829 N.E.2d 318.

{¶ 41) The court in Lewis agreed with the defend-ants. It reasoned that a"`eontract is generally notseverable if its purpose, terms, and nature contem-plate that its parts and consideration shall be inter-dependent and common to each other. * * * If theconsideration to be paid is sutgle and entire, thecontract inust be held to be entire, although the sub-

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ject thereof may consist of several distinct andwholly independent itoms.' " Id, at ---31, 829N.E.2d 318, quoting DePugh v, Mead Corp. (1992),79 Ohio App.3d 503, 513, 607 N.E.2d 867. `Ihecourt stated "[t]he part.ies did not apportion part ofthe consideration for Lewis'sstock and patt for hisrelease." Id. at ---32, 607 N,L'.2d 867. Thus, thecourt held, "the agreement was entire[,][t]hereforeLewis was reqaired to return the $68,000 to avoidthe release and pursue his causes of action against(defendants]." Id.

{¶ 42) As in Lewis, the parties in the case sub ju-dice did not apportion part of the consideration spe-cifically for the release. The twenty, all-encompassing provisions of the ComprehensiveSettlenient Agreement are "uEterdependent andcommon to eacli other," See id. at ----31, 829

N.E.2d 318. The contract, is eutire and cannot besevered. Therefore, appellants had to returtt theconsideration they received under the agreement-in

order to pursue their claims.

s'8 {¶ 43) In sum, because of the release, appellantsdid not bave a choice of remedies. Svrce theysigned tlte release in exchange for considemtion en-compassing a Comprehensive Settlement Agree-ment, they only Izad one option. They first had to

rescind and tender back the consideration-beforethey could bring their suit. Since there is no disputethat they have not done so, appellees were entitledto sununary judgment on plaintiffs' &aud clainr.

Negligeet Misrepreseratation

(j! 42) Appellantss also argue in their first assign-ment of en'or that the tcnder-back rale does not ap-ply to tbei.r claim of negligent misrepresentation.They contend that "[t]he tender back rule in Halleris expressly limited to cases in which the plaintiffsallege" intentional fraud-

(g 451 Haller holds that to set aside a release, thereleasor must pxove that the release was procuredby frru<d or was the prodnet of inedual +nistake. Id.

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at 13, 552 N.E.2d 207. Since negligent misrepres-entation is neither one of tirose claims, the rele.aseitself bars the claiun. Thus, appellees were entitledto suzmnary judgment on appellants' negligent mis-representation claim.

{¶ 46) Aecordingiy, appellants' first assignment oferror is not well taken.

Motion to Strike Conntenctaim

{^ 47) In their second assigmnent of error, appel-lants argue that the trial court erred when it deniedappellants' motion to sttike appellees' eountexolaim.We conclude that we do not have jurisdiction to ad-dress this issue, although not for the reasons setforth by appellees7'"

PN2. Appellees argue that this court doesnot have jurisdiction because appellantsfailed to designate the September 7, 2006motion to strilce order in their notice of ap-peal as required by App.R. 3(0). We agreethat appellants did not do so; appellantsonly designated the September 14, 2006order granting sunmtary- judgment to ap-pellees. Neveriheless, under App.R. 3(A),this court would. still have jurisdiction. SeeIn re F.D., 8th Dist. No. 87510,

2006-Obio-6036, at ----18-20 andTransamerzca In.c. Co. v. Nolan (1995), 72Ohio St.3d 320, 649 NI:.2d 1229, syl- labus.

{J 48) The trial court denied appeliants' motion tostrike on Septennber 7, 2006. It then granted sum-niary judgment to appellees on appcllants' claimson September 14, 2006. In the September 14, 2006cntry, the trial court stated, "This is a final appeal-able order and there is no just reason for delay. Allother claints shall be stayed pending the appeal ofthis order."

{1 49) Therefore, appellees' counterolaims remainpending, as well as their claim for costs and attor-neys' fees. T'he order denying appellants' motion to

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strike is an in(erlooutory order and this court doesnot have jurisdiction at this time to consider themerits of it.

L¶ 50) Aceordiagly, appeklants' second assignment

of error is dismissed.

{j 51) The judgment of the Cuyahoga ConntyCourt of Common Pleas granting summary judg-ment to appellees is affinned and the case is re-manded for consideration of the pending counter-claims.

It is ordered that appeltees recover frorn appellants

costs herein taxed.

`I'he cowt finds there were reasonahle grounds forthis appeal.

It is ordered that a special mandate be sent to saidcnurt to carry this,judgrnent into execution.

A certified copy of this enfry shall constitute themandate pursuant to Rule 27 of the Rules of Appel-late Prooeduxe.

MARY EILEEN KILI3ANE, P.J., and FRANK D.CELEBREZZE, JR., J., Coneur.Ohio App. 8 Dist.,2008.Weisman v. BlaushildNot Reported in N.E.2d, 2008 WL 192139 (OhioApp. 8 Dist.), 2008 -Ohio- 219

F.ND OF DOCUh4ENT

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WeStlawFederal Rules of Civil Procedure Rule 60 Page 1

CUnited States Code Annotated Currentness

Federal Rules of Civil Procedure for flae United Staks District Courts (Refs & Annos)9-2 Title VII, Judgment

y Rule 60. Relief from a Jndgment or Order

(a) Corrections Based on Clerical Mistakes; Oversights and Omissioats.The court may cocrect a clerical mis-

take or a mistake arising from oversight or omission whenever one is found in a judgment, order, or othcr part ofthe record_ The court may do so onmotiou or on its own, with or without nofice, 33ut after an appeal bas beendocketed in the appellate court and while it is pending, such a mistake may be correctcd only with the appellatecourt's leave.

(b) Gronnds for Relief from a Final Judgment, Order, or Proceeding.4n motion and just terms, the courtmay reheve a party or its legal representative from a&nal judgment, order, or proceeding for the following reas- ons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidonce tbat, with reasonable diligeice, could not have been discovered in time tomove for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or naiscotuluci. by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisficd, released or discharged; it is based on an carlier judgment that has been re-

versed or vacated; or applying it prospectively is no longer eqnitable; or

(6) any other reason that justifies relief.

(e) Tiining and Effect of the Motion.

(1) Ti.aing.A motion under Rule 60(b) must be made within a reasonable time--and for reasons (1), (2), and(3) no more than a year after the entry of the judgment or order or the date of the proceeding.

(2) Eff'eer ott Finality.The motion does not affect the judgment's fiuality or suspeid its operation.

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Federal Rules of Civil Procedure Rule 60 Page 2

(d) Other Powers to Grant Relief.This rule does not limit a courPs power to:

(1) entertain an independent action to relieve a party from a judgment, order, or proceeding;

(2) grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of the action; or

(3) set aside a,judgment for $-aad on the court.

(e) Bills and Writs Abolished.The following are abolished: bills of review, bills in the nature of bills of review,aad writs of coram nobis, coram vobis, and audita querela-

CREDIT(S)

(skmended December 27, 1946, effective March 19, 1948; December 29, 1948, effective October 20, 1949;March 2,1987, effective August 1, 1987; Apri130, 2007, effective December 1, 2007.)

Amerdmenks received to 11-30-09

Westlaw. (C) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt Works.

END OF DOCUMENT

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