Goldsmith v. Fifth Third Bank
2008-CA-001414 10/30/09 2009 WL 3486696
Opinion by Judge Wine; Judges Acree and Stumbo concurred.
The Court vacated and remanded an order of the circuit court granting appellant CR 60.02 relief and all orders of the court entered thereafter and remanded with instruction to the trial court to reinstate an in rem summary judgment and order of sale. The Court held that CR 60.02 relief should not have been granted as a matter of law in the case because appellant expressly waived his right to a guardian ad litem under CR 17.04. Further, CR 60.02 relief was inappropriate because the alleged errors could have been raised in a direct appeal. The Court finally held that the CR 60.20 motion was untimely and therefore, the trial court was without jurisdiction to grant it. The claim was one of “excusable neglect” rather than an extraordinary circumstance and therefore, the one-year time limitation found in CR 60.02(a), (b), and (c) was applicable. Although appellant also claimed to be proceeding under CR 60.02(d) and (e), he was unable to prove fraud on the part of appellee. Because the trial court erroneously invoked the post-judgment relief of CR 60.02, it had no jurisdiction to proceed and therefore, all order of the court following the order setting aside the original judgment and order of sale were void.
