In re Settlement for Fischer

[Cite as In re Settlement for Fischer, 2019-Ohio-4749.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. John W. Wise, P. J.
Hon. Patricia A. Delaney, J.
MINOR SETTLEMENT FOR Hon. Craig R. Baldwin, J.
TRAVIS FISCHER Case No. 19AP0002
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Probate Division, Case No.
09PMS0059
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 18, 2019
APPEARANCES:
For Appellee For Appellant
CINDY M. O'NEIL TRAVIS FISCHER, PRO SE
ASSISTANT PROSECUTOR LEBANON CORR. INSTITUTION
19 East Main Street P.O. Box 56
McConnelsville, Ohio 43756 Lebanon, Ohio 45036
Morgan County, Case No. 19AP0002 2
Wise, P. J.
{¶1} Appellant Travis Fischer appeals the decision of the Morgan County Court
of Common Pleas, Probate Division, which denied his motion to vacate a 2010 judgment
entry directing certain settlement funds to be applied to outstanding court costs and other
fees in three other cases. Appellee is the State of Ohio. The relevant procedural facts
leading to this appeal are as follows.
{¶2} In April 2008, appellant, a minor at the time, was injured as a passenger in
an automobile accident. Appellant’s attorney for his subsequent personal injury claim filed
an application to settle a minor’s claim (R.C. 2111.05 and 2111.18) in the Morgan County
Probate Court on June 12, 2009. According to said application and other probate court
documents, Progressive Insurance Corporation made a settlement offer of $12,500.00.
On June 29, 2009, the probate court issued an “entry approving settlement,” ordering
inter alia the net amount of $4,102.86 to be deposited in the name of appellant.
{¶3} In July 2009, the Morgan County Grand Jury indicted appellant (common
pleas case number 09CR0032) on three counts of aggravated murder, one count of rape,
one count of aggravated robbery, and several other counts. On November 4, 2009,
appellant entered pleas of guilty to aggravated murder, rape, aggravated burglary, grand
theft (motor vehicle), and arson. On the same day, he was sentenced inter alia to thirty
years to life in prison.
{¶4} On March 16, 2010, the Morgan County Probate Court (case number
09PMS0059) issued a judgment entry further addressing the aforementioned settlement
funds. The court first found that the First National Bank of McConnelsville was holding the
sum of $4,115.11 in a savings account in appellant’s name, which were due to be
Morgan County, Case No. 19AP0002 3
released to him upon the age of majority.1 The court then found that appellant owed
outstanding court costs and/or indigent attorney fees in three other cases, including
09CR0032, supra. It further ordered as follows:
Therefore, the court hereby orders and directs that the First National
Bank of McConnelsville, Ohio release Savings Account No. xxxxxx in the
amount of $4,115.11 plus accrued interest, and that said account shall be
disbursed in two separate checks, one being payable to the Morgan County
Juvenile Court in the amount of $1,012.71 in payment of costs and attorney
fees in Case No. 09JB0028 and 09JA0080, and the second, in the amount
of the remaining balance to the Clerk of Courts of the Common Pleas Court
of Morgan County as a payment on costs due and owing in Case No.
09CR0032. The Clerk of Courts of the Common Pleas Court is directed to
apply said sum first to court costs, secondly, to court fines, and the
remaining balance to be applied to incarceration fees.
{¶5} “Journal Entry,” March 16, 2010, at 1.
{¶6} On March 25, 2019, more than nine years later, appellant filed a pro se
motion to vacate the aforesaid judgment entry ordering disbursement of funds.
{¶7} The probate court issued a judgment entry on May 8, 2019, finding the
“matter [had] been previously decided” and therefore denying the motion to vacate.
{¶8} Appellant filed a pro se notice of appeal on June 3, 2019. He herein raises
the following sole Assignment of Error:
1 Appellant had reached the age of eighteen in September 2009.
Morgan County, Case No. 19AP0002 4
{¶9} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT FAILED TO VACATE THE MARCH 16, 2010 JUDGMENT AND REIMBURSING [SIC]
APPELLANT THE SUM OF $4,115.11.”
I.
{¶10} In his sole Assignment of Error, appellant contends the probate court erred
in declining to vacate its 2010 judgment entry directing the application, toward prior court
costs, of $4,115.11 in funds which had been deposited in appellant’s name. We disagree.
{¶11} Collateral or indirect attacks on civil judgments are disfavored in Ohio and
they will succeed only in very limited situations. Ohio Pyro, Inc. v. Ohio Dept. of
Commerce, 115 Ohio St. 3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 22 (2007). “Under
Ohio law, the doctrine of res judicata is that an existing, final judgment or decree, rendered
upon the merits and without fraud or collusion, by a court of competent jurisdiction, is
conclusive of rights, questions, and facts in issue, as to the parties or their privies, in all
other actions in the same or any other judicial tribunal of concurrent jurisdiction.” Hoff v.
Brown, 5th Dist. Stark No. 2000CA00315, 2001 WL 876228, citing 63 Ohio Jurisprudence
3d (1985) 178–179, Judgments, Section 400. Generally, the applicability of res judicata
is a question of law, which an appellate court reviews de novo. See EMC Mtge. Corp. v.
Jenkins, 164 Ohio App. 3d 240, 249, 841 N.E.2d 855, 2005–Ohio–5799.
{¶12} We first note that appellant does not appear to propose that the 2010
disbursement entry in the case sub judice was not a final order. A judgment entry that
“clearly contemplates further action in the probate court before approval or settlement of
the final account” does not constitute a final appealable order. In re Estate of Robison,
10th Dist. Franklin No. 17AP-232, 2017-Ohio-8980, ¶ 26. But in this instance, the 2010
Morgan County, Case No. 19AP0002 5
entry did not contemplate further probate court action, and in fact nothing else is found in
the probate court file between said 2010 entry and appellant’s 2019 motion to vacate,
except a carbon copy of two cashier’s checks. Therefore, we first find that the 2010
probate court judgment entry ordering disbursement of settlement funds was a final
appealable order.
{¶13} Nonetheless, appellant in essence relies on a theory that the 2010
disbursement entry was a void judgment, subject to his motion to vacate, urging that his
personal injury proceeds were exempt from collection for court costs under R.C.
2329.66(A)(12)(c). We recognize that an exception to the application of res judicata
applies to void judgments. See State v. Draughon, 10th Dist. Franklin No. 17AP-149,
2017-Ohio-7741, ¶ 9. Generally, however, judgments that are erroneous for other than
jurisdictional reasons are merely voidable and not subject to collateral attack. See
O'Malley v. O'Malley, 8th Dist. Cuyahoga No. 98708, 2013-Ohio-5238, ¶ 24, citing State
ex rel. Beil v. Dota, 168 Ohio St. 315, 319–320, 154 N.E.2d 634 (1958).
{¶14} We find appellant’s aforesaid legal theory is in actuality an attempt to raise
an untimely error of law regarding the probate court’s 2010 disbursement, rather than a
true jurisdictional challenge thereto. Therefore, his “void judgment” argument must fail.
As such, we hold appellant’s present claims could have been raised upon a direct appeal
in 2010 and are presently barred by the doctrine of res judicata.
{¶15} Accordingly, we hold the probate court did not commit reversible error in
denying appellant’s 2019 motion to vacate the 2010 judgment entry.
Morgan County, Case No. 19AP0002 6
{¶16} Appellant's sole Assignment of Error is overruled.
{¶17} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Probate Division, Morgan County, Ohio, is hereby affirmed.
By: Wise, John, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/d 1101