[Cite as Reining v. Jensen, 2011-Ohio-5065.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

JANEANE D. REINING                                   C.A. No.       25577

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ERIC R. JENSEN, et al.                               COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellees                                    CASE No.   CV 2008 12 8883

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2011



        BELFANCE, Presiding Judge.

        {¶1}    Plaintiff-Appellant Janeane Reining appeals the trial court’s denial of her Civ.R.

60(B) motion. For the reasons stated below, we affirm.

                                                I.

        {¶2}    Ms. Reining was injured in an automobile accident on August 8, 2007, by a

vehicle driven by Defendant Eric Jensen.       Ms. Reining suffered serious injuries from the

collision.

        {¶3}    On December 30, 2008, Ms. Reining filed suit against Mr. Jensen, John Does 1-

10, Jane Does 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Governmental Agencies

1-10, and Doe Entities 1-10 asserting claims for negligence and negligent infliction of severe

emotional distress.      Ms. Reining amended the complaint to add Appellee Home Owners

Insurance Company (“Home Owners”) as a defendant and asserted a claim for breach of contract
                                                 2


based upon Ms. Reining’s uninsured/underinsured automobile insurance policy with Home

Owners. Home Owners filed a cross-claim against Mr. Jensen.

       {¶4}      Subsequently, Ms. Reining entered into a settlement agreement with Mr. Jensen

and all claims against him were dismissed with prejudice. It appears from the record that Mr.

Jensen’s insurance company was to pay Ms. Reining $100,000. In addition, Home Owners

dismissed its cross-claim against him. Prior to trial, Ms. Reining dismissed all Doe Defendants

from the suit.

       {¶5}      The matter proceeded to a jury trial. During deliberations, the jury posed the

following question to the trial court: “If we render a verdict in favor of the plaintiff, is the

maximum of $250,000 inclusive of the $100,000 or is it in addition to the $100,000 already

settled? What is the maximum amount of the decision?” The questions were discussed among

counsel and the trial court, and it was agreed that, as “there is no evidence before the jury with

regard to amounts of the policy, [] to answer [the] question[s] would be basically be to respond

to something that is not in evidence.” Accordingly, the parties agreed to provide the jury with

the following answer: “If you render a verdict in favor of the plaintiff, your job is to determine

the total amount of damages that will compensate her. The Court will make any legally required

adjustment.”

       {¶6}      The jury returned a general verdict for Ms. Reining in the amount of $100,000 “as

decided in Jury Interrogatory No. 4.” In addition, the jury completed interrogatories to which

Ms. Reining did not object. In Jury Interrogatory No. 1, the jury found that Mr. Jensen’s

negligence proximately caused Ms. Reining’s injuries. In Jury Interrogatory No. 2, the jury was

instructed to “[s]tate the portion of the total compensatory damages that represents damages for

economic loss.” In response, the jury wrote in the sum of $50,000. In Jury Interrogatory No. 3,
                                                 3


the jury was instructed to “[s]tate the portion of the total compensatory damages that represents

damages for non-economic loss.” In response, the jury wrote in the sum of $50,000. In Jury

Interrogatory No. 4, the jury was instructed to “[s]tate the total compensatory damages

recoverable by [Ms. Reining] without considering any payment by Defendant, [Mr.] Jensen.” In

a parenthetical, the jury was instructed to “[a]dd the amounts listed in Interrogatory Nos. 2 and

3.” In response, the jury wrote in the sum of $100,000.

       {¶7}   Ms. Reining declined the opportunity to poll the jury or view the interrogatories.

After the jury was released, Home Owners’ counsel made the following statement:

       “Well, actually there is the contractual, I want just to make clear that since the
       verdict is for $100,000, it is now not an underinsured motorist case, and there is
       no money due and owing plaintiff by defendant Home-Owners Insurance
       Company under the terms of the contract. And there is still the $5,000 med pay
       issue that was raised in defendant’s trial brief.”

The trial court responded that “this case is about the underinsured, I don’t think [Ms. Reining’s

counsel] takes any issue with the first statement with regard to that. Am I correct?” To which,

Ms. Reining’s counsel responded, “[n]o, I don’t.”

       {¶8}   Thereafter, the trial court entered a judgment entry stating:

       “The Jury having returned its verdict in favor of Plaintiff Janeane Reining in the
       amount of $50,000.00 for economic damages and $50,000.00 for non-economic
       damages (total compensatory damages of $100,000.00), the Court hereby adopts
       the verdict of the Jury and finds the issues in this case in favor of Plaintiff Janeane
       Reining and against Defendant Home Owners Insurance Company. However,
       based upon the parties’ agreement following the return of the $100,000.00
       Plaintiff’s verdict, the Court finds that the underinsured policy is not applicable in
       this matter and no money is due and owing to the Plaintiff Janeane Reining from
       Defendant Home Owners Insurance Company.”

       {¶9}   Ms. Reining then filed a motion to modify the judgment pursuant to Civ.R.

60(B)(1) and 60(B)(5) and a motion for judgment notwithstanding the verdict. Attached to the

motion were affidavits from five jurors averring that “[t]he award of $100,000.00 was solely
                                                4


against Defendant Home Owners Insurance Company and was over and above the $100,000.00

paid by Eric Jensen.” Before the motion could be ruled upon, Ms. Reining appealed. She then

moved this Court for a stay and remand; however, instead, this Court dismissed the appeal. The

trial court denied Ms. Reining’s motion. Ms. Reining appealed, and Home Owners filed a cross-

appeal. The cross-appeal, however, was dismissed. Ms. Reining has appealed from the verdict

judgment entry and associated jury interrogatories and the judgment entry ruling upon Ms.

Reining’s Civ.R. 60(B) motion and her motion for judgment notwithstanding the verdict. Ms.

Reining raises a single assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
       APPELLANT’S MOTION TO MODIFY JUDGMENT, PURSUANT TO CIV.R.
       60(B).”

       {¶10} Ms. Reining asserts in her sole assignment of error that the trial court erred in

denying her Civ.R. 60(B) motion. While Ms. Reining stated her motion in terms of Civ.R.

60(B)(1) and (B)(5), she only appears to appeal the denial of her motion with respect to Civ.R.

60(B)(5).

       {¶11} The trial court’s decision to grant or deny a motion for relief from judgment

pursuant to Civ.R. 60(B) will not be disturbed absent an abuse of discretion. Strack v. Pelton

(1994), 70 Ohio St.3d 172, 174.        An abuse of discretion means that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219. Civ.R. 60(B) states:

       “the court may relieve a party or his legal representative from a final judgment,
       order or proceeding for 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
                                                  5


        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.”

Furthermore, it is well settled that:

        “To prevail on a motion brought under Civ.R. 60(B), the movant must
        demonstrate that: (1) the party has a meritorious defense or claim to present if
        relief is granted; (2) the party is entitled to relief under one of the grounds stated
        in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable
        time[.]” GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio
        St.2d 146, paragraph two of the syllabus.

The denial of a Civ.R. 60(B) motion is proper if the moving party fails to satisfy any one of the

foregoing requirements. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20.

        {¶12} “Civ.R. 60(B)(5) is intended as a catch-all provision reflecting the inherent power

of a court to relieve a person from the unjust operation of a judgment. However, the grounds for

invoking said provision should be substantial.” Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio

St.3d 64, 66.

        {¶13} In her Civ.R. 60(B) motion in the trial court, Ms. Reining’s assertion was that “the

court erred in offsetting against the verdict the amount paid by Mr. Jensen [in the settlement].

The court was mistaken as to [the] jury’s thinking with respect to the award of $100,000.00 in

favor of Plaintiff against Home Owners.” While Civ.R. 60(B)(5) “justifies relief from court

errors and omissions[,] * * * such errors and omissions in the judicial process that are the

appropriate subject of Civ.R. 60(B)(5) are “distinct from an erroneous judgment[, which] will not

justify relief under this catch-all provision.” (Internal quotations and citations omitted.) In re

S.J., 9th Dist. No. 23199, 2006-Ohio-6381, at ¶23. We recognize that in some instances, the

distinction between legal error which is addressed on direct appeal and grounds for relief from
                                                  6


judgment is at times difficult to discern. However, we conclude that in this case, Ms. Reining

essentially asserts that the trial court committed a legal error when it improperly offset the

settlement funds against the verdict. As Ms. Reining’s Civ.R. 60(B)(5) motion was “nothing

more than a challenge to the legal correctness of the trial court’s original [judgment,] she has

not demonstrated that she is entitled to relief under Civ.R. 60(B)(5).” Id. at ¶24.

       {¶14} Notably, the case that Ms. Reining asserts is dispositive of her appeal, Jordan v.

Westfield Ins. Co., 7th Dist. No. 07 MA 18, 2008-Ohio-1542, was a direct appeal, and not an

appeal from a denial of a motion for relief from judgment. Unlike Jordan, Ms. Reining has

limited her argument to the trial court’s denial of the 60(B)(5) motion.

       {¶15} Furthermore, we cannot say that Ms. Reining has demonstrated a meritorious

defense, even assuming that relief would be appropriate under Civ.R. 60(B)(5).                During

deliberations, the jury asked the following: “If we render a verdict in favor of the plaintiff, is the

maximum of $250,000 inclusive of the $100,000 or is it in addition to the $100,000 already

settled? What is the maximum amount of the decision?” The question was discussed on the

record and the agreed upon answer was: “If you render a verdict in favor of the plaintiff, your

job is to determine the total amount of damages that will compensate her. The Court will make

any legally required adjustment.” The premise of Ms. Reining’s argument in her merit brief is

that there is no evidence in the record that the jury was actually provided with this answer, and

thus, “because the trial court failed to instruct the jury regarding setoff or adjustment, the jury

was free to conduct its own adjustment, which it did so, by entering a verdict against Home

Owners, specifically.”    We disagree.     The record includes a notepad containing the jury’s

question. Immediately below the question, is the answer the parties agreed to provide the jury

along with the trial judge’s initials. Ms. Reining has not asserted that if the jury was actually
                                                  7


given this instruction, the verdict is nevertheless still erroneous. Accordingly, her argument is

not well taken.

       {¶16} Moreover, when Home Owner’s counsel brought up how the award should be

adjusted just after the jury was released, the following discussion took place:

       “[Home Owners’ counsel]: Well, actually there is the contractual, I want just to
       make clear that since the verdict is for $100,000, it is now not an underinsured
       motorist case, and there is no money due and owing plaintiff by defendant Home-
       Owners Insurance Company under the terms of the contract. * * *

       “THE COURT: All right. Well, this case is about underinsured, I don’t think
       [Plaintiff’s counsel] takes any issue with the first statement with regard to that.
       Am I correct?”

       “[Plaintiff’s counsel]: No, I don’t.”

Ms. Reining’s counsel failed to object or comment upon the suggested set off. Despite the fact

that the discussion was ambiguous, in the judgment entry, the trial courted characterized this

discussion as an agreement. The trial court stated that “the parties agreed after the verdict was

read on the record that because the Plaintiff’s verdict was $100,000.00 the underinsured policy

was not applicable.” The trial court reiterated this several lines later, stating that “based upon the

parties’ agreement following the return of the $100,000.00 Plaintiff’s verdict, the Court finds that

the underinsured policy is not applicable in this matter and no money is due and owing to

Plaintiff Janeane Reining from Defendant Home Owners Insurance Company.” While Ms.

Reining asserted in her motion for judgment notwithstanding the verdict that there was no such

agreement, the trial court’s denial of her motion for judgment notwithstanding the verdict is not

before us on appeal, nor did she make this argument in her Civ.R. 60(B) motion in the trial court.

       {¶17} Accordingly, based upon the limited argument advanced by Ms. Reining, we

overrule Ms. Reining’s assignment of error.
                                                 8


                                                III.

       {¶18} In light of the foregoing, we overrule Ms. Reining’s sole assignment of error and

affirm the judgment of the Summit County Court of Common Pleas.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                       EVE V. BELFANCE
                                                       FOR THE COURT


WHITMORE, J.
MOORE, J.
CONCUR

APPEARANCES:

ROBERT C. MEEKER, Attorney at Law, for Appellant.

MARILYN J. SINGER, Attorney at Law, for Appellees.
