Upkins v. Brosh ( 2018 )

[Cite as Upkins v. Brosh, 2018-Ohio-2971.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
LAMONE UPKINS :
:
Plaintiff-Appellant : Appellate Case No. 2018-CA-2
:
v. : Trial Court Case No. 17-420
:
LENEE BROSH, PROSECUTOR : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the 27th day of July, 2018.
...........
LAMONE UPKINS, Inmate No. 723-308, London Correctional Institution, P.O. Box 69,
London, Ohio 43140
Plaintiff-Appellant, Pro Se
NICHOLAS E. SUBASHI, Atty. Reg. No. 0033953 and TABITHA JUSTICE, Atty. Reg. No.
0075440, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440
Attorneys for Defendant-Appellee Lenee Brosh
MELANIE J. WILLIMASON, Atty. Reg. No. 0079528 and DANIEL A. SABOL, Atty. Reg.
No. 0096720, 7775 Walton Parkway, Suite 200, New Albany, Ohio 43054
Attorney for Defendant-Appellee J.J. Bubeck
.............
DONOVAN, J.
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{¶ 1} This matter is before the Court on the February 7, 2018 pro se Notice of
Appeal of Lamone Upkins. Upkins appeals from the trial court’s January 12, 2018 denial
of his pro se Civ.R. 60(B) motion for relief from judgment, issued after the trial court
granted the motion to dismiss of Miami County Prosecutor Lenee Brosh and Miami
County Deputy Sheriff J.J. Bubeck (“Defendants”). We hereby affirm the judgment of the
trial court.
{¶ 2} On October 16, 2017, Upkins filed a pro se “Complaint 42. U.S.C. § 1983”
against Defendants. The complaint provided, “This is a claim of malicious prosecution.”
It further provided that, on January 22, 2016, Bubeck stopped Upkins as he was walking
at the corner of Hetzler Road and County Road 25A in Piqua, questioned him, placed him
in handcuffs, and arrested him for an active Montgomery County warrant. The complaint
alleges that Bubeck then proceeded to Upkins’s vehicle, which he searched without
Upkins’s permission. According to the complaint, after “illegally obtaining what Deputy
Bubeck[ ] believed was drug paraphernalia,” Bubeck “proceeded to try and get the Plaintiff
to take a field sobriety test, and a breath test,” which Upkins refused. Upkins alleged
that he was charged with “OVI-Drugs and Alcohol and DUS-Driving Under Suspension.”
Upkins stated that he was “incarcerated within the Miami County Jail from January 22,
2016, up to February 4, 2016, [sic] the date upon which the Plaintiff had to pay a high
bond for such misdemeanor charges after Montgomery County dropped the warrant in
Dayton, Ohio, from a 2009 traffic violation.” Upkins asserted that Bubeck “knew his
actions would ignite the Miami County Prosecuting Office to begin its malicious
prosecution of a case that had neither probable cause [n]or justifiable standings in
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criminal law.” Upkins further alleged that Brosh “acted with malice while instituting or
continuing the prosecution” and that Brosh attempted “to achieve a guilty plea by way of
a dishonest purpose.” Upkins sought $582.65 “for bail money lost in malicious
prosecution,” as well as $10,000.00 in punitive damages and $10,000.00 in compensatory
damages “for stress and duress.”
{¶ 3} On October 19, 2017, Defendants filed their “Motion for Dismissal.” In its
entirety, the motion provides as follows:
Now comes the above named defendants by and through, Miami
County Prosecuting Attorney, Anthony E. Kendell, and for the reasons set
forth below, respectfully requests that the Plaintiff’s Complaint be
dismissed.
It is the State’s position that this Honorable Court lacks jurisdiction in
order to proceed on the Plaintiff’s Complaint as a matter of law. As a result,
the State respectfully requests that the Plaintiff’s Complaint be summarily
dismissed on those grounds.
{¶ 4} The certificate of service on the motion provides that it was sent via regular
mail to Upkins at London Correctional Institution, to Brosh at the Miami County Municipal
Court Prosecutor’s Office, and to Sheriff David Duchak and Deputy Bubeck at the Miami
County Sheriff’s Office.
{¶ 5} On October 24, 2017, the court granted the motion to dismiss without
analysis; the entirety of it of its decision provided: “Upon Motion of the State, and for good
cause shown, the Motion to Dismiss filed by the Miami County Prosecutor in this matter,
is hereby granted.” We note that the signature appearing above Judge Christopher
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Gee’s signature line is difficult to read.
{¶ 6} On November 13, 2017, Upkins filed his pro se motion for relief from
judgment, arguing that the “State filed a motion to dismiss with the Court without serving
a copy on the Plaintiff, and therefore, obstructed the Plaintiff from being able to oppose
the motion.” He argued that the trial court failed to provide a rationale for the dismissal of
his complaint. According to Upkins, “the contents of the State’s motion to dismiss is [sic]
still unknown to the plaintiff.” He asserted that “it is incumbent upon this Court to grant
relief from judgment pursuant to Civil Rule 60(B)(1)(3) & (5).” Upkins further asserted
that he “may had [sic] mistakenly used the wrong statute in presenting his claim to the
Court by asserting 42 U.S.C. 1983, but such oversight could have been easily corrected
pursuant to Civil Rule 15(A), whereas [the] body of the complaint itself, did in fact state a
claim upon which relief could be granted if proven.” He argued that “in considering
60(B)(3),” Defendants’ failure to serve him with the motion to dismiss “was an act of
misconduct, and the reasons stated all through this motion covers 60(B)(5) and justifies
relief from judgment.” The certificate of service on the motion provides that “a copy of
the foregoing motion for Relief from Judgment, Civil Rule 60(B) was sent to Lenee Brosh,
the Miami County Prosecutor’s Office [on] November 4, 2017 at 501 W. Main St., Safety
Building, Troy, Ohio 45373-2363.”
{¶ 7} Upkins attached his affidavit to his motion for relief from judgment. The
affidavit stated that he was not served with a copy of the motion to dismiss and that his
complaint was dismissed without any rationale. He further averred that he received “the
dismissal entry on October 26, 2017 from Anthony E. Kendell Miami County Prosecuting
Attorney as the sender on the envelope from the mail room here at the London
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Correctional Inst.” Finally, Upkins stated that he “is now before Judge Gee, requesting
Motion for Leave to file an Amended Complaint, and motion for Relief from judgment due
to the failure to adhere to the civil rules.”
{¶ 8} On the same day, Upkins filed a “Motion to Amend Complaint,” which
provided that Defendants “have not filed an affirmative defense in this case, and based
on these facts and the supporting civil rules the motion for leave should be freely given.”
Upkins also filed an affidavit which provided, “[t]his will verify that a copy of the Plaintiff’s
Motion for Release from Judgment, Motion to Amend Complaint, & Affidavit of the Plaintiff
was mailed to the clerk of courts at Miami County Common Pleas Court by U.S. Mail,
County Courthouse Troy, Ohio, to be filed with the Common Pleas Court.”
{¶ 9} On January 12, 2018, the trial court issued its “Decision/Judgment Entry
Denying Motion for Relief from Judgment.” The court noted that Defendants “have not
responded to the motion for relief from judgment, although, somewhat ironically, it
appears that [Anthony E. Kendell, the Miami County prosecutor who filed the motion to
dismiss on behalf of Defendants], may not have been served with a copy of the motion
for relief.” The trial court noted that the dismissal entry was signed by “a visiting judge,”
who “did not explain the basis of the dismissal beyond ‘good cause shown.’ ” The court
noted that Upkins did not appeal from the dismissal of his complaint. The court found
that the “memorandum in support of the motion for relief from judgment is confusing from
the standpoint of ascertaining the basis for relief under Civil Rule 60(B). This could, in
part be attributed to Upkins[’] lack of familiarity with the rule and his decision to proceed
pro se.” The court further noted that pro se litigants are “held to the same procedural
standards as other litigants that have retained counsel.”
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{¶ 10} The court further found as follows:
The memorandum supporting the motion for relief makes a general
assertion about entitlement to relief “pursuant to Civil Rule 60(B)(1), (3) &
(5)”, but does not set forth specific operative facts to support entitlement to
relief under those three grounds. Upkins asserts in his memorandum that
he “may have mistakenly used the wrong statute in presenting his claim to
the court by asserting 42 U.S.C. 1983.” Upkins also claims (correctly) that
the court should have given him time to respond to the motion for dismissal.
Had he been given that time, however, Upkins claims that he would have
filed an amended complaint. The proposed amended complaint, which is
attached to this decision, removes any reference to a claim under 42 U.S.C.
§ 1983, but in both the original and proposed amended complaint, Upkins[’s]
sole claim is for “malicious prosecution”. However, the removal of a
reference to 42 U.S.C. § 1983 does not change the sole claim being made
for malicious prosecution and does not demonstrate a mistake that would
justify granting relief under Civil Rule 60(B).
The court finds that Upkins has failed to demonstrate he is entitled
to relief under any of the grounds alleged under Civil Rule 60(B). He has
not demonstrated “mistake, inadvertence, surprise or excusable neglect”
under 60(B)(1). There is also no evidence of fraud, misrepresentation or
other misconduct of an adverse party that would justify relief under 60(B)(3).
Upkins also points to the catch-all provisions of 60(B)(5), but he does not
make any separate argument to demonstrate why he is entitled to relief
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under that section.
(Footnotes omitted.)
{¶ 11} We note that the amended complaint attached to the motion to amend does
not bear a time-stamp. In separate footnotes the court noted that the “certificate of service
signed by Upkins shows that it was sent to one of the defendants, Lenee Brosh, who
works as a prosecutor in Miami County Municipal Court and who is not employed by the
Miami County Prosecuting Attorney’s office,” and that “Local Rule 3.031 gave Upkins 14
days to respond to the motion for dismissal.
{¶ 12} Upkins asserts two assignments of error herein which we will consider
together. They are as follows:
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
GRANTING APPELLANT’S 60(b)(5) MOTION WHEN THE TRIAL COURT
FAILED TO CORRECT THE PLAIN ERRORS OF A SUBSTITUTE JUDGE
WHO’S [sic] JUDGMENT WAS UNREASONABLE, ARBITRARY OR
UNCONSCIONABLE”
THE TRIAL COURT ABUSED ITS DISCRETIOIN IN IT’S [sic]
JUDGMENT TO THE PREJUDICE OF THE APPELLANT BY DENYING
HIS CIVIL RULE 60(B)(5) MOTION FOR RELIEF FROM JUDGMENT
1
Miami County Local Rule 3.03 governs in part the submission of motions and provides:
“All motions shall be accompanied by a brief or memorandum stating the grounds thereof
and citing the authorities relied upon. The opposing counsel or parties may file answer
briefs or memoranda by the fourteenth day after the day on which the motion was filed.
On the twenty-first calendar day after the original motion was filed, the motion shall be
submitted to the Judge to whom the case is assigned. This rule shall apply to all motions
except as otherwise provided herein. The clerk is ordered not to accept for filing motions
not in conformance with this rule. * * *.” (Emphasis added.)
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WHERE APPELLANT’S AFFIDAVIT WAS NEVER CONTESTED BY
DEFENDANT’S [sic] WHERE SERVICE OF THEIR MOTION TO DISMISS
WAS NOT MADE ON APPELLANT IN ACCORDANCE WITH OHIO CIVIL
RULE 5(A).
{¶ 13} In the “Statement of the Case” portion of his brief, Upkins asserts that his
case is “a case involving malicious prosecution” against Brosh and Bubeck, who “acted
with vehemence and intent of purpose to cause [him] embarrassment, irreparable harm,
and financial loss.” Upkins asserts that his complaint “should have never been
dismissed by the trial court pursuant to civil rules and local rules without allowing [him] an
opportunity to respond” to the motion to dismiss.
{¶ 14} Upkins asserts that the “trial court dismissing the civil action five days after
the defendants filed their motion without allowing Appellant an opportunity to oppose their
motion was prejudicial and an abuse of discretion.” He argues that, “under Ohio’s liberal
pleading rules, all that is required of a plaintiff bringing suit is (1) a short and plain
statement of the claims showing that the party is entitled to relief, and (2) a demand for
judgment for relief to which the party claims to be entitled.”
{¶ 15} Upkins argues that he:
* * * filed a “Motion for Relief from Judgment” and a “Motion to Amend
Complaint”, accompanied by an “Affidavit” swearing he never received
defendants[’] motion to dismiss complaint. The defendants never
responded to either of Appellant’s motions, and never contested the
Appellant’s affidavit. The Appellant ask[s] this Appellate Court to note that
all legal mail coming into the London Correctional Institution, from court or
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attorneys are recorded and must be signed for by the recipient, and can be
verified by the Institution Mail Officer.
The trial court promptly denied Appellant’s motion for Relief from
Judgment. First it is unfair and prejudicial for the Court to acknowledge the
defendant[s’] not contesting the Appellant’s affidavit, and secondly, not
responding to Appellant’s motion for Relief from Judgment. Thirdly, it is
unfair and prejudicial against the Appellant for the trial court to recognized
[sic] and acknowledge a substitute judge dismissing a civil action with a total
disregard for the local rules 3.03, and civil rules 7(B)(2), 8(A), and 41(B)(1).
Further, the substitute judge dismissed the complaint by signing the
dismissal as if the sitting judge, Christopher Gee, had actually signed it, and
the substitute judge[’s] name has not been mentioned and still is unknown
to the Appellant. * * * And even assuming that the defendant’s [sic] had
sent Appellant a copy of their motion to dismiss by regular mail, then it still
would have had [sic] prejudiced the Appellant because it takes three or four
days to receive legal mail at this institution. Therefore, at best, the
Appellant would have only had the defendant[s’] motion to dismiss one day
or two at best, and could have not responded in time.
{¶ 16} Upkins argues that “the trial court abused its discretion by failing to correct
an unfair judgment that was casted in it’s [sic] name despite the trial court’s
acknowledgement of its unfairness and unjust decisions, which ultimately has prejudiced
this appellant.”
{¶ 17} Under his first assignment of error, Upkins asserts that his appeal “rests on
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the trial court[’s] abuse of discretion when the sitting judge failed to correct a visiting or
substitute judge[’s] plain errors in dismissing Appellant’s civil actions which is contrary to
Miami County Local Rules 3.03 and Ohio Civil Rules 7(B),8(A), and 41(B)(1).” He argues
that Defendants sought dismissal based upon a lack of subject matter jurisdiction
“because Appellant used or cited the statute 42 U.S.C. 1983,” yet Defendants failed to
cite any authorities in support of their position as required by local rule. Upkins asserts
that the “visiting or substitute judge (who’s [sic] name is never mention[ed] or known by
Appellant) but who signed the dismissal where sitting judge Christopher Gee[’s] signature
should have been, dismissed the civil action,” while Upkins had 14 days to respond.
Upkins argues that many “civil complaints [have] been filed in Ohio State court using the
civil right statute 42 U.S.C. 1983 as the bas[i]s of their complaints, and as such, using the
statute itself is not a justifiable reason to dismiss a civil action for lack of jurisdiction in a
state court.”
{¶ 18} Upkins asserts that the “trial court or Clerk of Courts did not serve the
October 24, dismissal on the Appellant, but rather, it was sent by the [Defendants’]
attorney, Anthony E. Kendall.” He argues that the “trial court denied Appellant’s motion
for relief from judgment after first acknowledging that the visiting or substitute judge had
committed plain error in dismissing the civil action.” Upkins asserts that he “has a
meritorious claim for malicious prosecution, and his complaint and Amended Complaint
both met the malicious prosecution criteria.”
{¶ 19} In his second assignment of error, Upkins asserts that while his original
motion sought relief pursuant to Civ.R. 60(B)(1), (3), and (5), “after further research of the
rule itself, the appellant[’s] only relief rest[s] within [C]ivil [R]ule 60(B)(5).” Upkins repeats
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several of the arguments, set forth above, in his second assignment of error. He further
asserts that pursuant to Civ.R. 60(B), he “stated a meritorious claim for malicious
prosecution, wherein the complaint, appellant stated [(1)] malice in initiating or continuing
the prosecution, (2) the defendants lacked probable cause, and (3) the termination of the
prosecution in favor of the appellant.” Upkins asserts that he “has met the second prong
that entitle[s] him to relief under the ground of civil rule 60(B)(5), because appellant never
received service from the defendant of their motion to dismiss,” and that his affidavit,
which Defendants did not contest, “swearing to the fact is sufficient on its face to establish
a civil rule 60(B)(5) relief from judgment.” Finally, Upkins asserts that he filed his motion
within a reasonable time.
{¶ 20} In his brief, Deputy Bubeck asserts that he was not served with Upkins’s
Civ.R. 60(B) motion, and that the address in Upkins’s certificate of service for Brosh is
incorrect, since she is employed at the Miami County Municipal Court and not the Miami
County Prosecutor’s Office. He asserts that Upkins “failed to both establish that he has
a meritorious defense or claim to present if relief is granted and he failed to establish that
he is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5).”
Bubeck argues that “the trial court did not find that its decision to dismiss Plaintiff’s
Complaint constituted plain error, but simply stated that ‘the court should have given him
time to respond to the motion for dismissal’ under the Local Rules.” Bubeck asserts that
Upkins “could have simply appealed the trial court’s original decision,” and that his instant
appeal fails “because a Rule 60(B) Motion for Relief from Judgment cannot be used in
place of an appeal.”
{¶ 21} Prosecutor Brosh also argues that Upkins “clearly had the ability and
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wherewithal to file an appeal,” since he filed his motion for relief from judgment 20 days
after the dismissal entry was issued. She asserts that, in Ohio, “a Civil Rule 60(B) motion
may not be used as a substitute for direct appeal.” Finally, Brosh asserts that Upkins
“has failed to plead operative facts in his complaint that would overcome [her] right to
prosecutorial immunity.”
{¶ 22} Upkins filed a reply brief, attached to which are copies of the legal mail log
from the London Correctional Institution which Upkins asserts reflect mail that Upkins
received from October 16, 2017 to November 25, 2017, as well as a copy of an envelope
addressed to Upkins from the Prosecuting Attorney of Miami County, which reflects it was
received on October 26, 2017.
{¶ 23} We note that Bubeck filed a motion to strike the attachments to Upkins’s
reply brief as outside the record, and Upkins filed a response thereto. On May 16, 2018,
this Court issued a Decision and Entry, noting that Bubeck’s motion to strike and Upkins’s
response “are TAKEN UNDER ADVISEMENT. This court will review the trial court’s
record that was filed in this appeal, and will not consider evidence that is not part of that
record.” Having undertaken such review, we conclude that the attachments to Upkins’s
reply are not part of the record before us, and we will not consider them. See State v.
Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus
(appellate court may not add to the record and decide an appeal based on material that
was not before the trial court.)
{¶ 24} As this Court has previously noted:
“Once an order has been journalized by a trial court as a final
appealable order, that order cannot be modified or vacated except as
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provided under Civ.R. 50(B) (motion notwithstanding the verdict), Civ.R. 59
(motion for new trial), or Civ.R. 60(B) (motion for relief from judgment).”
Krumheuer v. Flowers & Versagi Reporters, 8th Dist. Cuyahoga No. 72431,
1997 WL 691169, *2, citing In re Guardianship of Mauer, 108 Ohio App.3d
354, 357, 670 N.E.2d 1030 (6th Dist. 1995); Pitts v. Dept. of Transp., 67
Ohio St.2d 378, 380, 423 N.E.2d 1105 (1981); and Civ.R. 54(A).
***
Civ.R. 60(B) provides:
On motion and upon such terms as are just, the court
may relieve a party or his legal representative from a final
judgment, order or proceeding 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 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. * * *
To prevail on a Civ.R. 60(B) motion, the movant must demonstrate
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that : (1) he has a meritorious defense or claim to present if relief is granted;
(2) he is entitled to relief under one of the grounds stated in Civ.R. 60(B);
and (3) the motion is made within a reasonable time. GTE Automatic Elec.,
Inc. v. ARC Industries, Inc. 47 Ohio St.2d 146, 351 N.E.2d 113 (1976).
“A motion for relief from judgment under Civ.R. 60(B) is addressed
to the sound discretion of the trial court, and that court’s ruling will not be
disturbed on appeal absent a showing of abuse of discretion.” Griffrey v.
Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). * * *
Beyoglides v. Elmore, 2d Dist. Montgomery No. 24905, 2012-Ohio-3979, ¶ 12-16.
{¶ 25} The term “ ‘abuse of discretion’ [is] defined as an attitude that [is]
unreasonable, arbitrary, or unconscionable.” Feldmiller v. Feldmiller, 2d Dist.
Montgomery No. 24989, 2012-Ohio-4621, ¶ 7, citing Huffman v. Hair Surgeon, Inc., 19
Ohio St.3d 83, 482 N.E.2d 1248 (1985).
{¶ 26} As this Court finally noted in Beyoglides:
A Civ.R. 60(B) motion may not be used as a substitute for direct
appeal. Key v. Mitchell, 81 Ohio St.3d 89, 90–91, 689 N.E.2d 548 (1998);
Doe v. Trumbull Cty. Child. Serv. Bd., 28 Ohio St.3d 128, 131, 502 N.E.2d
605 (1986). This court has stated that “[t]he use of Civ. R. 60(B) is generally
reserved to issues that cannot be raised on appeal.” Burgess v. Safe Auto,
2d Dist. Montgomery No. 20941, 2005–Ohio–6829, ¶ 32. Therefore, when
a party merely repeats arguments that concern the merits of the case and
that could have been raised on appeal, relief under Civ.R. 60(B) is not
available. Wozniak v. Tonidandel, 121 Ohio App.3d 221, 228, 699 N.E.2d
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555 (8th Dist.1997).
* * * “A Civ.R. 60(B)(5) motion for relief from judgment may not be
used as a substitute for a direct appeal from the judgment challenged,
Colley v. Bazell (1980), 64 Ohio St.2d 243, 245, 18 O.O.3d 442, 443-444,
416 N.E.2d 605, 607, nor may it be used for, or in place of, any of the other
more specific provisions of Rule 60(B). Caruso-Ciresi, Inc. v. Lohman
(1983), 5 Ohio St.3d 64, 5 OBR 120, 448 N.E.2d 1365.” Miamisburg Motel
v. Huntington Natl. Bank, 88 Ohio App.3d 117, 129, 623 N.E.2d 163, 172
(2d Dist. 1993).
Id. at ¶ 17-18 (holding that “Beyoglides’s arguments in his motion to modify or clarify could
have been the basis for a direct appeal from the original order construing the will. The
trial court therefore erred when it granted relief under Civ.R. 60(B).” Id. at ¶ 19.).
{¶ 27} We agree with Defendants that the propriety of the dismissal of Upkins’s
complaint should have been raised on direct appeal.2 Accordingly, Upkins’s assigned
errors are overruled, and the judgment of the trial court denying his motion for relief from
judgment is affirmed.
.............
2
We note that Civ.R. 58 provides: “When the court signs a judgment, the court shall
endorse thereon a direction to the clerk to serve upon all parties not in default for failure
to appear notice of the judgment and its date of entry upon the journal. Within three days
of entering the judgment upon the journal, the clerk shall serve the parties in the manner
prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving
the notice and notation of the service in the appearance docket, the service is complete.
The failure of the clerk to serve notice does not affect the validity of the judgment or the
running of the time for appeal except as provided in App.R. 4(A).” App.R. 4(A)(3)
provides that “[i]n a civil case, if the clerk has not completed service of the order within
the three-day period prescribed in Civ.R. 58(B), the 30-day periods referenced in App.R.
4(A)(1) and 4(A)(2) begin to run on the date when the clerk actually completes service.”
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HALL, J., concurs.
FROELICH, J., concurring:
{¶ 28} The error claimed by the Appellant – that he did not have the opportunity to
respond to the motion to dismiss and/or that there were no grounds to grant the motion –
are, if true, apparent on the record. The Appellant could have filed (and, as pointed out
by the majority, still could file) an appeal. Therefore, under the unique facts of this case,
Civ.R. 60(B)(5) relief was not available to the Appellant, and his post-judgment motion
was appropriately denied.
Copies mailed to:
Lamone Upkins
Nicholas E. Subashi
Tabitha Justice
Melanie J. Williamson
Daniel A. Sabol
Hon. Christopher Gee