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Gore v. First National Supermarkets8/31/2000
Claim No. 95-365413 that has been recognized for: lateral humeral epicondylitis, right elbow; contusion and patellofemoral instability and malalignment, right and left knee. I would agree only to a settlement of the denied part of my claim involving: severe depression.
The trial court denied appellant's second motion for relief from judgment on August 30, 1999 without explanation. Appellant timely appealed, assigning one assignment of error for our review:
I. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO HOLD A HEARING ON PLAINTIFF'S REQUEST FOR RULE 60(B) RELIEF WHERE THERE WAS NO MEETING OF THE MINDS BETWEEN THE PARTIES AS TO THE TERMS OF THE SETTLEMENT AND WHERE R.C. 4123.65(C) ALLOWS THE PARTIES THIRTY DAYS TO WITHDRAW THEIR AGREEMENT TO SETTLE A WORKERS' COMPENSATION CLAIM.
Appellant contends that the trial court erred in denying her Civ.R. 60(B) motion for relief from judgment without an evidentiary hearing for two reasons: 1) there was no meeting of the minds between the parties concerning the terms of the agreement and, therefore, the settlement agreement was not binding; and 2) even if there were a meeting of the minds, R.C. 4123.65(C) gives either party to a workers' compensation settlement agreement thirty days to withdraw their consent to the agreement.
A trial court is authorized to vacate its judgment under Civ.R. 60(B), which provides: * On motion and upon such terms as are just, the court may relieve a party * from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * or (5) any other reason justifying relief from judgment.
To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds for relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. GTE Automatic Elec. v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. Although relief from judgment under Civ.R. 60(B) is within the discretion of the trial court, a trial court abuses its discretion if it denies such relief where the movant has demonstrated all three factors. See Mount Olive Baptist Church v. Pipkins Paints & Home Improvement Ctr., Inc. (1979), 64 Ohio App.2d 285.
To merit Civ.R. 60(B) relief, a movant must set forth operative facts which would warrant relief from judgment. BN1 Telecommunications, Inc. v. Cybernet Communications, Inc. (1997), 118 Ohio App.3d 851, 856. The movant is not required to submit documentary evidence to support its contention that it can meet the GTE test. Kadish, Hinkle & Weibel Co. L.P.A. v. Rendina (June 4, 1998), Cuyahoga App. No. 72459, unreported, citing Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. However, the movant must allege operative facts with enough specificity to allow the court to decide whether it has met that test. Elyria Twp. Bd. Of Trustees v. Kerstetter (1993), 91 Ohio App.3d 599, 601, citing Montpoint Properties, Inc. v. Waskowski (Apr. 6, 1988), Summit App. No. 13320, unreported.
With these criteria in mind, appellee asserts that the trial court properly denied appellant's first Civ.R. 60(B) motion for relief from judgment because appellant did not attach an affidavit in support of her allegations to her motion. Consequently, appellee contends, because appellant's motion for relief from judgment contained only unsworn allegations of opera
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