 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Gore v. First National Supermarkets8/31/2000
acts and grounds for relief as her earlier Civ.R. 60(B) motion and merely attempted to correct the deficiency of her first motion by including an affidavit. Therefore, appellee contends, the trial court properly denied appellant's second motion for relief from judgment on the basis of res judicata.
When a motion to vacate or for relief from judgment has been denied, principles of res judicata prevent relief on successive, similar motions raising issues which were or could have been raised originally. Brick Processors, Inc. v. Culbertson (1981), 2 Ohio App.3d 478. Res judicata does not bar a subsequent motion for relief from judgment when the subsequent motion is based on different facts, asserts different grounds for relief, and it is not certain the issue could have been raised in prior motions. Coulson v. Coulson (1983), 5 Ohio St.3d 12, 17.
Here, the trial court's decision regarding appellant's first Civ.R. 60(B) motion for relief from judgment did not address the merits of appellant's motion. Rather, the trial court denied appellant's motion on a procedural issue: that appellant had failed to attach an affidavit as required by the Civil Rules. Thus, although it raised similar allegations of operative facts, appellant's second motion for relief from judgment raised substantive issues which the trial court had not previously considered. Moreover, as discussed earlier, the trial court abused its discretion in denying appellant's first motion for relief from judgment. Thus, because appellant's second motion for relief from judgment was necessitated by judicial error, we decline to find that it was barred by the doctrine of res judicata.
Appellant's first assignment of error is sustained. The judgment of the trial court denying appellant's Civ.R. 60(B) motion is reversed and remanded for further proceedings consistent with the opinion herein.
This cause is reversed and remanded for further proceedings consistent with the opinion herein.
It is, therefore, ordered that appellant recover from appellees her costs herein.
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.
TIMOTHY E. McMONAGLE PRESIDING JUDGE
MICHAEL J. CORRIGAN, J. and JAMES M. PORTER, J., CONCUR.
Page 1 2 3 4 Ohio Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|