Larson v. Umoh , 33 Ohio App. 3d 14 ( 1986 )

For the reasons herein stated I respectfully dissent.

I agree with the majority's decision that a motion to vacate judgment made pursuant to Civ. R. 60(B) may be filed by an evicted tenant in a forcible entry and detainer action and that such relief is not precluded by the exception recited in Civ. R. 1(C)(3). I further agree that appellant, in his motion to vacate judgment, satisfied the first prong of Civ. R. 60(B)(1) when he alleged that he did not receive a three-day notice of eviction and that he was not in this country on the day the eviction proceeding was had.

Appellant also satisfied the second requirement for a motion to vacate judgment by stating in an affidavit filed by him in support of his motion that his rent was paid in full at the time he was evicted and that shortly prior to making that payment he informed appellee that he was required to travel to the country of Nigeria for a short time on an emergency matter. Appellee did not file a reply to this motion. Nor did he file any affidavit or other material refuting appellant's claims. In this posture it would appear that appellant had a meritorious defense to the eviction action taken against him and that he was wrongfully evicted.

The third requirement of a motion to vacate is that it must be filed within a reasonable time and a motion filed under Civ. R. 60(B)(1) must be filed not more than one year after judgment. The majority concludes appellant's motion was untimely since it was filed seventy-two days after judgment. I disagree.

I concede that there are instances where a motion to vacate judgment may be properly denied because it was filed untimely, notwithstanding the fact that it was filed within one year of the entry of judgment. Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App.2d 285, 18 O.O. 3d 319, 413 N.E.2d 850;Zerovnik v. E.F. Hutton Co. (June 7, 1984), Cuyahoga App. No. 47460, unreported; and Riley v. Heritage Mut. Ins. Co. (Sept. 25, 1986), Cuyahoga App. No. 50972, unreported. However, I find it to be significant that appellant was outside the country at the time of his eviction and at that time, based on his unrebutted affidavit, his rent for the period of time in question was paid in full. Under the unusual facts in this case it is my opinion that appellant filed his motion to vacate judgment within a reasonable time. Hence, he met all of the requirements of Civ. R. 60(B).

Under these circumstances is appellant to be left without remedy? I think not. The provisions of Civ. R. 60(B) must be liberally construed and applied. See Svoboda v. Brunswick (1983),6 Ohio St.3d 348, 6 OBR 403, 453 N.E.2d 648. While I recognize the right of a landlord to have prompt repossession of his property from a defaulting tenant, I must also recognize the rights of a tenant who is improperly evicted. The landlord here has provided this court with no evidence of any hardship which would accrue to him by the grant of appellant's motion to vacate. It must be recognized that there are some cases where the grant of a tenant's motion to vacate judgment is both appropriate and required. Marchioni v. Wilson (1984), 20 Ohio Misc.2d 10, 20 OBR 276, 485 N.E.2d 1073. I believe this is one of those cases.

Accordingly, I would reverse this judgment and remand this cause to the trial court for further proceedings according to law.