Court of Appeals of Ohio, Eighth District, Cuyahoga
EVELYN F. UNDERWOOD, ET AL. PLAINTIFFS-APPELLEES
JOSEPH DURHAM, ET AL. DEFENDANTS-APPELLANTS
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANTS Allison E. Hayes Law Offices of John
ATTORNEYS FOR APPELLEES Nicole C. Longino James A. Gay
Gregory E. O'Brien Cavitch, Familo & Durkin Co.,
BEFORE: Stewart, J., Kilbane, P.J., and Keough, J.
JOURNAL ENTRY AND OPINION
J. STEWART, J.
The issue in this App.R. 11.1 accelerated calendar appeal is
whether the court abused its discretion by granting
plaintiff-appellee Evelyn F. Underwood relief under Civ.R.
60(B) from her own Civ.R. 41(A)(1) voluntary dismissal of her
complaint with prejudice. Defendant-appellant Joseph Durham
argues that the court erred by finding that Underwood's
voluntary dismissal with prejudice, relying on assertions
made in his motion to dismiss, was the product of excusable
Underwood filed a complaint on October 29, 2014, seeking
damages for automobile negligence, but dismissed it two days
later because she was negotiating with Durham's insurance
company. When those negotiations stalled, she refiled the
complaint on April 25, 2016. Durham then filed a Civ.R.
12(B)(6) motion to dismiss on grounds that Underwood failed
to refile her complaint within the one-year saving statute in
R.C. 2305.19(A). Underwood's attorney "reviewed the
Defendant's Motion to Dismiss, believed its
representations of law and fact, noted that the date of
refiling was indeed more than one year from the original
dismissal, and concluded that the Motion to Dismiss had
merit." Affidavit of Gay at ¶ 9. He dismissed the
action with prejudice under Civ.R. 41(A)(1).
In the motion for relief from judgment, Underwood's
attorney stated that he relied entirely on the
representations made in Durham's motion to dismiss that
the second complaint had not been timely filed. He claimed to
be unaware that the one-year time period of the saving
statute applied to the commencement of a new action
"within one year after the date of the reversal of the
judgment or the plaintiffs failure otherwise than upon the
merits or within the period of the original applicable
statute of limitations, whichever occurs later."
(Emphasis added.) R.C. 2305.19(A). The accident occurred on
September 8, 2014, so the second complaint filed on April 25,
2016, was easily within the R.C. 2305.10(A) two-year statute
of limitations for negligence claims. The attorney's
decision to dismiss the case was negligent. Shue v. Ohio
Dept. of Rehab. & Corr., 10th Dist. Franklin No.
16AP-432, 2017-Ohio-443, ¶ 12.
But was it excusable neglect under Civ.R. 60(B)(1)?
"Excusable neglect" is an elusive concept, Kay
v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20,
1996-Ohio-430, 665 N.E.2d 1102, but we have little difficulty
finding that an attorney's decision to take an
opponent's legal assertions at face value, without
conducting independent review, constitutes inexcusable
This is not a case where Durham pulled a fast one on
Underwood. Underwood's attorney was obligated to
represent his client by conducting independent research to
determine the validity of Durham's motion to dismiss. The
attorney's being uninformed of the law does not
constitute excusable neglect. Katko v. Modic, 85
Ohio App.3d 834, 621 N.E.2d 809 (11th Dist.1993) (ignorance
of law not excusable neglect); Cincinnati Ins. Co. v.
Schaub, 2d Dist. Montgomery No. 22419, 2008-Ohio-4729,
¶ 41. This, too, is the rule for federal courts applying
the similar provisions of Fed.R.Civ.P. 60(B), where it has
been said that "no circuit that has considered the issue
after Pioneer [Inv. Servs. v. Brunswick Assocs. Ltd.
Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d
74 (1993)] has held that an attorney's failure to grasp
the relevant procedural law is 'excusable
neglect.'" Advanced Estimating Sys. v.
Riney, 130 F.3d 996, 998 (11th Cir.1997), quoting
Commt. for Idaho's High Desert, Inc. v. Yost, 92
F.3d 814 (9th Cir.1996). See also Equilease Fin. Servs.,
Inc. v. Fincastle Leasing, Inc., 305 Fed.Appx. 291,
294-295 (7th Cir.2008) ("ignorance of the law is not a
ground for a Rule 60(b) motion"); In re Pettle,
410 F.3d 189, 192 (5th Cir.2005); Noah v. Bond Cold
Storage, 408 F.3d 1043, 1045 (8th Cir.2005).
We are aware that in Pioneer, the United States
Supreme Court held that "excusable neglect" can
include omissions through "inadvertence, mistake, or
carelessness." Pioneer at 388. But
Underwood's attorney did not act through inadvertence,
mistake, or carelessness. Underwood's attorney knew that
Durham cited R.C. 2305.19(A) as a basis for the motion to
dismiss, but it appears that the attorney must not have read
the statute to determine the validity of the motion - his
affidavit stated that he "believed" the
representations of law and fact made in the motion. By
accepting at face value a representation of law made by an
opposing party in a dispositive pleading, the attorney
admittedly abdicated his responsibility to his
client. As a matter of law, this was not excusable
We also reject any assertion that the court could have
granted relief from judgment under the catchall provision of
Civ.R. 60(B)(5). Underwood's ten-page motion for relief
from judgment devoted one sentence to seeking relief under
Civ.R. 60(B)(5). And that sentence merely restated his claim
of excusable neglect - that he relied on unsupported legal
and factual arguments made in the motion to dismiss. The
catchall provision of Civ.R. 60(B)(5) is not a substitute for
another ground for relief. Caruso-Ciresi, Inc. v.
Lohman, 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (1983). In
any event, the court made it clear that it was granting
relief based on excusable neglect: "the Court finds that
it was excusable neglect and finds that the motion is
well-taken." Given the specificity of the court's
holding, it erred by granting relief from judgment.
Judgment reversed and remanded to the trial court for further