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Spaulding-Buescher v. Skaggs Masonry

December 1, 2008

KIM SPAULDING-BUESCHER, ET AL., PLAINTIFFS-APPELLEES,
v.
SKAGGS MASONRY, INC., DEFENDANT-APPELLANT,
v.
DAVID SHEETS, THIRD-PARTY DEFENDANT- APPELLEE.



Per curiam.

DECISION AND JUDGMENT ENTRY

{¶1} Defendant-Appellant, Skaggs Masonry, Inc., appeals the decision of the Hocking County Court of Common Pleas granting Third-Party Defendant-Appellee, David Sheets', motion for relief from judgment.

Appellant contends that the trial court erred (1) in granting Sheets' motion to set aside default judgment because the requirements of Civ.R. 60(B) were not met; (2) in granting Sheets' motion to set aside the default judgment because counsel for Sheets' failed to set forth operative facts upon which the trial court could justify relief under Civ.R. 60(B)(1)-(5); and (3) in granting Sheets' motion to set aside default judgment by using Civ.R. 60(B)(5) when substantial grounds did not exist and were not submitted to the trial court pursuant to proper method or procedure. Because we find that Sheets' motion for relief from judgment demonstrated operative facts warranting relief under Civ.R. 60(B)(5), and in light of the unique facts of this case, we cannot conclude that the decision of the trial court constituted an abuse of discretion. Accordingly, we affirm the trial court's decision setting aside the default judgment granted in favor of Appellant, as to Third-Party Defendant, David Sheets.

FACTS

{¶2} On May 9, 2007, Plaintiffs, Kim Spaulding-Buescher and Brian Buescher, filed a complaint naming Defendant-Appellant, Skaggs Masonry, Inc., as the sole defendant. The complaint essentially alleged that Plaintiffs and Appellant had entered into a written agreement whereby Appellant agreed to construct a basement, septic system, driveway and pole barn on Plaintiff's real property in exchange for the payment of $26,000.00. The complaint further alleged that Appellant had not performed the work as promised, that the construction and clearing that had been performed had been negligently performed and that Plaintiffs had suffered damages in excess of $25,000.00 as a result.

{¶3} Appellant, Skaggs Masonry, Inc., filed an answer to the complaint on June 14, 2007, generally denying the allegations and setting forth a number of defenses, including an allegation that Plaintiff's complaint failed to state a claim upon which relief could be granted. That same day, Appellant filed a third-party complaint, naming Appellee, David Sheets, as a defendant. The third-party complaint incorporated Plaintiff's complaint and Appellant's answer as if fully rewritten therein, and alleged that David Sheets was hired by Appellant as sub-contractor to perform certain work, now complained of by Plaintiffs.*fn2 Appellant alleged that "[t]o the extent Skaggs Masonry, Inc. was negligent or performed work in a nonworkmanlike manner, then David Sheets acted negligently and performed services or provided goods in an un-workmanlike manner, thereby proximately causing injuries and damages complained of by the Plaintiffs in the complaint * * *." The third-party complaint further alleged that "* * * in the event that a judgment is rendered against third-party plaintiff in favor of plaintiffs for damages suffered by the plaintiff as a direct and proximate cause of the negligence of David Sheets, then third-party defendant is liable to Skaggs Masonry, Inc. for indemnification and/or contribution as David Sheets conduct was primary and/or contributory proximate causes of the damages alleged by the plaintiffs." Finally, Appellant demanded "judgment against third-party defendant David Sheets in an amount sufficient to compensate it for all sums that it be required to pay, as a direct and proportionate result of David Sheets' negligence, to the plaintiffs, or to others, * * *."

{¶4} When Sheets failed to file an answer or otherwise plead, Appellant filed a motion for default judgment, which was granted on November 19, 2007. The judgment entry provided that "Skaggs Masonry, Inc. is entitled to judgment against the defendant David Sheets in the amount of any judgment against Skaggs Masonry, Inc. or any amount paid to plaintiffs in settlement of plaintiff's claims * * *." The next day, on November 20, 2007, Appellee, David Sheets, by and through counsel, filed a motion for relief from judgment and for authority to file an answer to the third-party complaint. Sheets' memorandum and supplemental memorandum filed in support of his motion for relief from judgment asserted that the default judgment entry granted relief which exceeded the relief requested in the third-party complaint. Specifically, Sheets asserted that he did not file an answer because he was of the understanding that the third-party complaint simply sought indemnification for negligent acts committed by Sheets. However, Sheets further asserted that the default judgment entry purported to require that he indemnify Appellant, not only for Sheets negligent acts, but for any judgment rendered against Appellant, not just the portion of the judgment attributable to Sheets. Sheets' motion further set forth the defenses he would raise if permitted to file an answer, including that Appellant's third-party complaint, just as Plaintiffs' complaint, failed to state a claim upon which relief could be granted, and also that the work he performed was completed in a workmanlike manner. Sheets further asserted that he was entitled to relief under Civ.R. 60(B)(5). In support of his motion, Sheets attached a copy of the third-party complaint, as well as a copy of the judgment entry.

{¶5} Over the objection of Appellant, Skaggs Masonry, Inc., the trial court granted Sheets' motion for relief from judgment on December 10, 2007, ordering that Sheets be permitted to file an answer within seven days. Sheets filed an answer on December 14, 2007, and the matter apparently proceeded to discovery. However, Appellant has appealed from the trial court's December 10, 2007, judgment entry setting aside the grant of default judgment, assigning the following errors for our review.

ASSIGNMENTS OF ERROR

"I. THE TRIAL COURT ERRED IN GRANTING DAVID SHEETS MOTION TO SET ASIDE DEFAULT JUDGMENT BECAUSE THE REQUIREMENTS OF CIV.R. 60(B) WERE NOT MET BY MOVANT.

II. THE TRIAL COURT ERRED IN GRANTING DAVID SHEETS MOTION TO SET ASIDE DEFAULT JUDGMENT BECAUSE COUNSEL FOR DAVID SHEETS FAILED TO SET FORTH OPERATIVE FACTS UPON WHICH THE TRIAL COURT COULD JUSTIFY RELIEF UNDER CIVIL RULE 60(B)(1)-(5).

III. THE TRIAL COURT ERRED IN GRANTING DAVID SHEETS MOTION TO SET ASIDE DEFAULT JUDGMENT BY USING CIV.R. (B)(5) [SIC] WHEN SUBSTANTIAL GROUNDS DID NOT EXIST AND WERE NOT SUBMITTED TO THE COURT PURSUANT TO PROPER METHOD OR PROCEDURE."

LEGAL ANALYSIS

{ΒΆ6} Before we address the merits of the assignments of error, we pause to address the appropriate standard of review. Civ.R. 60(B) provides as follows: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made ...


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