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Falk v. Wachs12/18/1996
SLABY, Judge.
Defendant-appellant, GatesMcDonald, appeals from the judgment of the Medina County Court of Common Pleas denying its Civ.R. 60(B)(5) motion for relief from judgment. We affirm.
GatesMcDonald is the authorized workers' compensation service company that administers Owens Corning Fiberglas's self-insured workers' compensation program. In 1979, William A. Wachs was injured in the course of his employment at Owens Corning In 1980, Wachs hired plaintiff-appellee, attorney Arthur V. Falk, to represent him in his Bureau of Workers' Compensation ("BWC") claim. walk handled Wachs's claim through the years, and eventually negotiated a $32,500 final settlement with GatesMcDonald. This was approved by the Industrial Commission of Ohio on July 24, 1991. Wachs had agreed to pay Falk one-third of any settlement. GatesMcDonald sent the settlement draft for the entire $32,500 directly to Wachs, without sending Falk his fee or including him as a copayee. Wachs cashed the check but failed to pay Falk.
Attorney Falk filed suit against Wachs for failure to pay the fee, and against GatesMcDonald for negligent and wrongful distribution of the settlement check directly to the client, despite having full knowledge of Falk's representation. Both defendants were properly served, but they failed to answer or otherwise make an appearance. After a hearing, the court granted a default judgment on November 16, 1992, fading Wachs and GatesMcDonald jointly and severally liable for the $10,833.33 attorney fee. No further action occurred for almost two years, until November 1994, when Falk attempted to collect from GatesMcDonald by garnishing its bank account. GatesMcDonald acknowledged that certified mail service of the original complaint and the notice of default judgment were perfected when received by a mailroom employee, but claimed that no one in authority was aware of the legal action until November 1994, when garnishment proceedings commenced. At that time, GatesMcDonald indicated that a Civ.R. 60(B) motion for relief from judgment would be filed within the week.
Eleven months later, on October 2, 1996, GatesMcDonald filed a Civ.R. 60(B)(5) motion, claiming that it was entitled to relief from judgment because plaintiff's complaint had failed to state a claim upon which relief could be granted. GatesMcDonald alleged that a C-230 power of attorney form, entitling Falk to receive the settlement proceeds, had not been filed; therefore, the judgment was based on a legally non-actionable claim. GatesMcDonald maintained that its motion was timely because it had been filed within one year from the time it first learned of the default judgment.
On December 1, 1996, the trial court denied GatesMcDonald's Civ.R. 60(B)(5) motion. The court found that the motion, filed approximately eleven months after GatesMcDonald allegedly learned of the judgment and thirty-five months after the judgment itself, was untimely. On January 2, 1996, GatesMcDonald appealed.
GatesMcDonald has not offered any reasons why its motion, filed almost three years after the default judgment, and eleven months after appellant acknowledged that it learned of the judgment, should be considered timely. In the absence of any explanation for the delay in filing the Civ.R. 60(B) motion, the movant has failed to meet its burden of establishing the timeliness of the motion. See Youssefi v. Youssefi (1991), 81 Ohio App.3d 49, 53, 610 N.E.2d 455, 457. We do not find that the trial court's denial of GatesMcDonald's motion for being untimely was an abuse of discretion.
On appeal, GatesMcDonald now argues that it was entitled to relief from the d
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