[Cite as Boyd v. Cleveland Clinic Found., 2012-Ohio-2513.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97703


                                         PATTY BOYD
                                                  PLAINTIFF-APPELLANT

                                                     vs.

           CLEVELAND CLINIC FOUNDATION, ET AL.
                                                  DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-660101

            BEFORE:          Blackmon, A.J., Sweeney, J., and Jones, J.

            RELEASED AND JOURNALIZED:                        June 7, 2012
ATTORNEYS FOR APPELLANT

William J. Novak
Scott D. Perlmuter
Novak & Pavlik, L.L.P.
1660 West Second Street
Suite 950
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Steven J. Hupp
Jennifer R. Becker
Bret C. Perry
Bonnezzi, Switzer, Murphy, Polito
and Hupp, Co., L.P.A.
1300 East Ninth Street
Suite1950
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, A.J.:

       {¶1} Appellant Patty Boyd appeals the trial court’s denial of her motion to vacate

judgment and assigns the following error for our review:

       I. The trial court committed reversible error by failing to vacate its
       erroneous judgment enforcing a settlement on behalf of plaintiff’s
       decedent’s estate without prior approval of the settlement from the
       probate court.

       {¶2} Having reviewed the record and pertinent law, we reverse the trial court’s

decision and remand for proceedings consistent with this opinion. The apposite facts

follow.

       {¶3} On May 21, 2008, Boyd, as executrix of the estate of her late husband,

Emmet Boyd, re-filed a medical malpractice complaint against the Cleveland Clinic

Foundation Health System (“Cleveland Clinic”). Boyd alleged claims for wrongful death,

as well as for pain and suffering.       In addition, Boyd sought declaratory judgment

regarding the constitutionality of SB-281 and SB-120.

       {¶4} On September 1, 2010, Boyd’s former counsel advised the trial court that

Cleveland Clinic had offered Boyd the sum of $30,000 to resolve all claims, and the case

was settled. Thereafter, the trial court dismissed the case with prejudice.

       {¶5} On September 10, 2010, the trial court conducted a telephone conference

with the respective counsel. Boyd’s counsel advised the trial court that his client had

withdrawn her consent to settle and would proceed to trial. The Cleveland Clinic advised

that they intended to file a motion to enforce the settlement agreement.
       {¶6} On September 13, 2010, Boyd filed a motion to withdraw the consent to

settle, while on September 17, 2010, the Cleveland Clinic filed a motion to enforce the

settlement agreement. On November 29, 2010, the trial court conducted an evidentiary

hearing with the respective counsel and Boyd present. The trial court determined that a

valid settlement had been reached by the parties and issued a decision upholding the

agreement.

       {¶7} On March 2, 2011, Boyd filed motions to vacate settlement agreement and

for enlargement of time to file an appeal, as well as a motion for enlargement of time to

hire a new attorney.     Two days later, the trial court denied the motions. On October 26,

2011, Boyd, with new counsel, filed a second motion for relief from judgment pursuant to

Civ.R. 60(B). On November 14, 2011, the trial court denied the motion.

                                      Motion to Vacate

       {¶8}            In the sole assigned error, Boyd argues the trial court erred when it

denied her motion to vacate the decision upholding the alleged settlement agreement.

       {¶9} In order to prevail on a motion brought under Civ.R. 60(B), the movant must

demonstrate the following: (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, and, where the

grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the

judgment, order, or proceeding was entered or taken. Agarwal v. Matthews, 8th Dist. No.
96950, 2012-Ohio-165, citing GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146,

351 N.E.2d 113 (1976), paragraph two of the syllabus.

       {¶10} A trial court is vested with discretion in determining whether to grant a

motion for relief from judgment under Civ.R. 60(B), and that court’s ruling will not be

disturbed on appeal absent a showing of abuse of discretion. Blount v. Smith, 8th Dist. No.

96991, 2012-Ohio-595, citing Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520

N.E.2d 564,(1988). An abuse of discretion involves more than an error of judgment; it

requires that the court has made an unreasonable, arbitrary, or unconscionable decision.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶11} However, a judgment rendered without proper jurisdiction over the action

or the defendant is void rather than voidable.      BAC Home Loans Servicing, L.P. v.

Komorowski, 8th Dist. No. 96631, 2012-Ohio-1341, citing Patton v. Deimer, 35 Ohio

St.3d 68, 70, 518 N.E.2d 941 (1988). If the judgment is void, the trial court has the

inherent power to vacate the judgment and a party need not seek relief under Civ.R. 60(B).

 Id.

       {¶12} In the instant case, the record reveals that Boyd maintained that her former

counsel accepted the Cleveland Clinic’s offer of $30,000 without her consent, then

attempted to pressure her into accepting the offer, which she categorically declined. On

the other hand, Boyd’s former counsel claimed he had her authority to settle the case.

Ultimately, as previously discussed, the trial court determined that the parties had reached

a valid settlement agreement.
       {¶13} Here, laboring under the presumption that the trial court’s journal entry

upholding the alleged settlement is voidable, Boyd argues she is entitled to relief from

judgment pursuant to Civ.R. 60(B). However, for the reasons that follow, we conclude

the trial court’s journal entry was void.

       {¶14} R.C. 2125.02(C) states that the personal representative appointed by the

probate court may settle the wrongful death action with the consent of the probate court.

Withers v. Nationwide Ins. Co., 7th Dist. No. 04 MA 39, 2004-Ohio-6379. This statute

clearly mandates that the personal representative must obtain the probate court’s consent to

settle a wrongful death action. Fosnight v. Esquivel, 106 Ohio App.3d 372, 375, 666

N.E.2d 273 (3rd Dist.1995), citing Matz v. Erie-Lackawanna R.R., 2 Ohio App.2d 136,

141, 207 N.E.2d 250 (9th Dist.1965).

       {¶15} Moreover, wrongful death settlements are void when the probate court’s

approval is not sought or obtained. Lincoln Gen. Ins. Co. v. Pipino, 7th Dist. No. 06 MA

125, 2007-Ohio-5046. Here, regardless of the parties’ respective contentions surrounding

the alleged $30,000 settlement, the probate court’s approval was never sought or obtained.

 Thus, given that the probate court has exclusive jurisdiction to approve wrongful death

settlements, the trial court did not have the authority to dismiss Boyd’s case against the

Cleveland Clinic.

       {¶16} Consequently, the trial court’s journal entry is void and must be vacated.

As such, the requirements of Civ.R. 60(B) does not need to be met. Accordingly, we

sustain Boyd’s sole assigned error.
      {¶17}   Judgment reversed and remanded for proceedings consistent with this

opinion.

      It is ordered that appellant recover from appellee her costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

JAMES J. SWEENEY, J., and
LARRY A. JONES, SR., J., CONCUR
