Worthington v. Admr., Bur. of Workers' Comp.

[Cite as Worthington v. Admr., Bur. of Workers' Comp., 2021-Ohio-978.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
LORI L. WORTHINGTON :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-10
:
v. : Trial Court Case No. 2019-CV-182
:
ADMINISTRATOR, BWC, et al. : (Civil Appeal from
: Common Pleas Court)
Defendants-Appellants :
:
...........
OPINION
Rendered on the 26th day of March, 2021.
...........
SHAWN M. WOLLAM, Atty. Reg. No. 0078244, 2323 West Fifth Avenue, Suite 240,
Columbus, Ohio 43204
Attorney for Plaintiff-Appellee
MARK C. ENGLING, Atty. Reg. No. 0070870, 1 South Main Street, Suite 1800, Dayton,
Ohio 45402
Attorney for Defendant-Appellant, Ulbrichs Inc.
NATALIE J. TACKETT, Atty. Reg. No. 0040221, 150 East Gay Street, 22nd Floor,
Columbus, Ohio 43215
Attorney for Defendant-Appellant, Ohio Bureau of Workers’ Compensation
.............
WELBAUM, J.
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{¶ 1} Defendant-Appellant, Ulbrichs Inc., appeals from a trial court order granting
relief from judgment under Civ.R. 60(B)(5) to Plaintiff-Appellee, Lori L. Worthington.
According to Ulbrichs, the trial court abused its discretion in granting the motion for relief
from judgment because Worthington had failed to establish the existence of a meritorious
claim. In addition, Ulbrichs contends that relief from judgment was barred because
Worthington failed to appeal from the involuntary dismissal of her action. Ulbrichs further
argues that the court’s dismissal improperly operated as a Civ.R. 41(A)(2) dismissal,
allowing Worthington an extra opportunity to dismiss her case and re-file.
{¶ 2} We conclude that relief from judgment was barred by res judicata because
Worthington failed to appeal from the prior judgment dismissing the action. Furthermore,
even if relief were not barred by res judicata, Worthington failed to establish that she had
a meritorious claim for relief. The trial court’s decision to grant the motion for relief from
judgment therefore was an abuse of discretion. In view of these facts, the issue raised
in the last assignment of error is moot.
{¶ 3} The trial court’s judgment will be reversed, and this cause will be remanded
for further proceedings.
I. Facts and Course of Proceedings
{¶ 4} According to the record before us, Worthington passed out at work and fell
on October 27, 2018. As a result, she was taken to Upper Valley Medical Center
Emergency Room for treatment. In the forms Worthington signed and in the medical
records that day, no mention was made of a claim that Worthington had struck her right
shoulder on a table when she fell. However, Worthington did make such a claim on
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November 29, 2018, when she saw Dr. Scott Short. See Ohio Industrial Commission
Record of Proceedings attached to Notice of Appeal, p. 1. After Worthington filed a claim
for workers’ compensation benefits, a district hearing officer denied the claim on
December 13, 2018. Worthington then appealed to a staff hearing officer, who affirmed
the denial on January 16, 2019. Id. at p. 1-2.
{¶ 5} The Staff Hearing Officer found that Worthington had failed to meet her
“burden to eliminate idiopathic causes for her fall,” that there was “no contemporaneous
evidence that she fell and struck her right shoulder on a table when she passed out at
work and fell,” and that Worthington “did not meet her burden to prove that her idiopathic
fall was worsened as a result of any condition of her employment.” Id. at p. 1.
{¶ 6} Worthington appealed from that decision on February 8, 2019, and the
Industrial Commission denied the appeal on February 15, 2019. The decision also
notified Worthington of her right to pursue an appeal to the common pleas court. Id. at
p. 3. Subsequently, on April 10, 2019, Worthington filed a notice of appeal with the Miami
County Common Pleas Court and attached the record from the Industrial Commission.
{¶ 7} In the complaint that was filed with the notice of appeal, Worthington alleged
that she had sustained right shoulder injuries on October 27, 2018, while working for
Ulbrichs, and asked the court to hold that she had the right to participate in the workers’
compensation system. After the Bureau of Workers’ Compensation (BWC)
Administrator and Ulbrichs filed answers, the trial court issued an order on July 30, 2019,
setting various deadlines, including a discovery deadline of December 17, 2019, and a
trial date of March 17, 2020.
{¶ 8} On November 6, 2019, Ulbrichs filed a motion to compel discovery. The
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affidavit attached to the motion, Exhibit A, stated that Worthington had been served on
September 23, 2019, with a first set of interrogatories, a request for production of
documents, and unexecuted medical and employment authorizations. Ex. A, ¶ 2. After
receiving no discovery, Ulbrichs sent Worthington’s counsel an email on October 22,
2019, to ask about the overdue responses. Having received no response to this email,
Ulbrichs sent a follow-up letter on October 28, 2019. Id. at ¶ 3-4. However, Ulbrichs
received no response to this letter, nor any explanation. Ulbrichs then filed the motion
to compel. Id. at ¶ 5.
{¶ 9} Worthington also did not respond to the motion to compel. As a result, on
December 9, 2019, Ulrich filed another request for an order to compel discovery. On
December 30, 2019, the trial court filed an order compelling Worthington to serve her
responses on or before January 13, 2020 (which was after the initial discovery deadline
had passed). After holding a scheduling conference, the court filed an amended order
on January 15, 2020, extending the discovery deadline to March 10, 2020, and setting a
trial date for July 22, 2020.
{¶ 10} By agreement of the parties, Ulbrichs was to take Worthington’s deposition
on March 11, 2020, which was one day after the discovery deadline expired. However,
Worthington failed to appear for her deposition. Ulbrichs then filed a motion asking the
court to involuntarily dismiss Worthington’s action pursuant to Civ.R. 41(B)(1).
Worthington did not respond to this motion either. As a result, the court granted the
motion for involuntary dismissal and dismissed the case with prejudice on May 11, 2020.
{¶ 11} Worthington did not appeal from the judgment of involuntary dismissal.1
1 A review of the docket for this case indicates that the only notice of appeal ever filed
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Subsequently, on June 30, 2020, Worthington filed a notice of dismissal in the trial court,
pursuant to Civ.R. 41(A)(1)(a). The same day, Worthington filed a motion for relief from
the judgment of involuntary dismissal, citing Civ.R. 60(B)(1) and (5). The motion was
based on the March 27, 2020 decision of the Supreme Court of Ohio related to the
COVID-19 pandemic, which tolled time requirements for filings and deadlines, retroactive
to March 11, 2020, and through July 30, 2020. See In re Tolling of Time Requirements
Imposed by Rules Promulgated by Supreme Court & Use of Technology, 158 Ohio St.3d
1447, 2020-Ohio-1166, 141 N.E.3d 974.
{¶ 12} Ulbrichs did not respond to the motion for relief from judgment.2 On July
28, 2020, the trial court granted Worthington’s motion for relief from judgment and vacated
the involuntary order of dismissal with prejudice. See Judgment Granting Relief from
Judgment. The court rejected the idea of excusable neglect, but concluded that relief
was warranted under Civ.R. 60(B)(5), because under the court’s own tolling order,
Worthington would not have been obligated to respond to the motion for involuntary
dismissal until May 18, 2020. However, the court had ordered dismissal on May 11,
2020, before the response was due. Id. at p. 3. The court therefore vacated the order
dismissing the case with prejudice. In a footnote, the court commented that, “The Court
notes Plaintiff filed a notice of voluntary dismissal, Civ.R. 41(A)(1)(a) on June 30, 2020;
was the August 26, 2020 notice of appeal that Ulbrichs filed to challenge the trial court’s
grant of the motion for relief from judgment. “Under established law, courts may
appropriately take judicial notice of judicial opinions and public records that are accessible
via the internet.” State v. Carr, 2d Dist. Montgomery No. 28360, 2020-Ohio-42, ¶ 4, fn.2.
2 Ulbrichs contends that it did not receive a copy of the motion. Based on that fact,
Ulbrichs filed a Civ.R. 60(A) motion on August 21, 2020. This motion is still pending in
the trial court.
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therefore, the case is dismissed without prejudice, effective with this order.” Id. at p. 3,
fn. 1.
{¶ 13} Ulbrichs timely appealed from the judgment on August 26, 2020, and has
raised two assignments of error.
II. Abuse of Discretion in Granting Civ.R. 60(B) Relief
{¶ 14} Ulbrichs’s First Assignment of Error states:
The Trial Court Abused Its Discretion in Granting Worthington’s
Motion for Relief From Judgment Where Worthington Failed to Establish the
Existence of a Meritorious Claim or Entitlement to Relief under Civ.R.
60(B)(1).
{¶ 15} Under this assignment of error, Ulbrichs contends that the trial court abused
its discretion in granting relief because Worthington’s motion failed to make even a prima
facie showing that her claims had merit. Ulbrichs further argues that the trial court should
not have applied Civ.R. 60(B)(5) when no excusable neglect occurred. And finally,
Ulbrichs contends that res judicata applied because Worthington did not appeal from the
court’s initial judgment.
{¶ 16} As pertinent here, Civ.R. 60(B) provides that:
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; * * * or (5) any other reason justifying relief from the judgment. The
motion shall be made within a reasonable time, and for reasons (1), (2) and
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(3) not more than one year after the judgment, order or proceeding was
entered or taken.
{¶ 17} “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, 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.” GTE Automatic Elec., Inc. v. ARC Industries, Inc.,
47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. These
requirements are “independent and in the conjunctive, not the disjunctive.” Id. at 151.
{¶ 18} “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, but it is not
to be used as a substitute for any of the other more specific provisions of Civ.R. 60(B).”
Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraph one
of the syllabus. Moreover, “[t]he grounds for invoking Civ.R. 60(B)(5) should be
substantial.” Id. at paragraph two of the syllabus. This section of the rule “is only to be
used in an extraordinary and unusual case when the interests of justice warran[t] it.”
Adomeit v. Baltimore, 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th Dist.1974).
{¶ 19} “In an appeal from a Civ.R. 60(B) determination, a reviewing court must
determine whether the trial court abused its discretion. * * * An abuse of discretion
connotes conduct which is unreasonable, arbitrary, or unconscionable.” State ex rel.
Russo v. Deters, 80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997), citing State ex rel.
Edwards v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 107, 647 N.E.2d 799-8-
(1995). “It is to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary. A decision is unreasonable if there is no sound reasoning process that would
support that decision.” AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 20} After reviewing the record, we agree Worthington was barred from relief by
res judicata because she failed to appeal from the order involuntarily dismissing her case.
{¶ 21} “Civ.R. 60(B) exists to resolve injustices that are so great that they demand
a departure from the strict constraints of res judicata. * * * However, the rule does not
exist to allow a party to obtain relief from his or her own choice to forgo an appeal from
an adverse decision.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275,
21 N.E.3d 1040, ¶ 15. Accord, e.g., In re Complaint of Pilkington N. Am., Inc., 145 Ohio
St.3d 125, 2015-Ohio-4797, 47 N.E.3d 786, ¶ 3; Barton v. Barton, 2d Dist. Greene No.
2015-CA-53, 2016-Ohio-5264, ¶ 14 and 23; Walters v. Moffett, 10th Dist. Franklin No.
18AP-46, 2018-Ohio-3690, ¶ 7; Bank of New York Mellon v. Martin, 1st Dist. Hamilton
No. C-140314, 2015-Ohio-2531, ¶ 34-35; Saqr v. Naji, 1st Dist. Hamilton No. C-160850,
2017-Ohio-8142, ¶ 29; Marcellino v. Geauga Humane Soc., 11th Dist. Geauga No. 2018-
G-0180, 2019-Ohio-2093, ¶ 20; Scrimizzi v. Scrimizzi, 12th Dist. Warren No. CA2018-11-
131, 2019-Ohio-2793, ¶ 53. See also Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio
St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the syllabus (“[a] party may not use
a Civ.R. 60(B) motion as a substitute for a timely appeal”).
{¶ 22} “Where the defect of the judgment is apparent from the record, an appeal
will lie; where it is not, relief must be sought under Civ.R. 60(B), because error cannot be
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demonstrated from the record. * * * ‘Thus, when one party merely reiterates 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 as a substitute for appeal.’ ” Deutsche Bank Tr. Co.
Americas v. Ziegler, 2d Dist. Montgomery No. 26287, 2015-Ohio-1586, ¶ 56, quoting
Blount v. Smith, 8th Dist. Cuyahoga No. 96991, 2012-Ohio-595, ¶ 9.
{¶ 23} Here, the matters at issue in connection with the initial involuntary dismissal
were apparent in the record and could have been resolved on appeal. First, the tolling
order of the Supreme Court of Ohio was available, and Worthington could have argued
that the involuntary dismissal was erroneous based on that ground. Specifically, the
March 27, 2020 tolling order for filing deadlines was imposed retroactively to March 9,
2020, and extended until July 30, 2020, or when the COVID-19 emergency ended,
whichever was sooner. In re Tolling of Time Requirements, 158 Ohio St.3d 1447, 2020-
Ohio-1166, 141 N.E.3d 974, at subsection (A) and (B)(2).
{¶ 24} More importantly, Subsection (G) of the tolling order gave local courts
authority to impose their own tolling orders. Specifically, this subsection stated:
Notwithstanding the tolling of time requirements imposed by this
order, the Court, local court, hearing panel, board, or commission, as
applicable, may still require filing in accordance with existing rules and issue
orders setting a specific schedule in a case or requiring parties to file
documents by a specific due date if pertaining to a situation that requires
immediate attention. A specific order in a case issued on or after March 9,
2020, shall supersede the tolling provisions of this order, unless otherwise
noted in that specific order.
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{¶ 25} Consistent with this authority, the Miami County Common Pleas Court
issued its own tolling order on March 20, 2020, stating, “All non-essential trials, hearings
and proceedings in the criminal, civil and domestic relations cases are hereby suspended
and continued for a period of forty[-]five (45) days.” See Further Temporary Order in
Response to the Covid-19 (Coronavirus) Public Health Crisis (Miami C.P., Mar. 20, 2020).
By its own terms, that order expired on May 4, 2020.
{¶ 26} As the trial court noted in its entry granting relief from judgment, this would
have extended the 14-day period for Worthington’s response to May 18, 2020, which was
after the court entered the involuntary dismissal. This was apparent on the face of the
record, and Worthington could have raised it on appeal. Rather than doing so,
Worthington filed a motion for relief from judgment.3
{¶ 27} Under the Ohio Supreme Court’s tolling order (which applied to the filing of
appeals to our court), Worthington would have had 30 days after July 30, 2020, to file her
notice of appeal from the trial court’s May 11, 2020 decision dismissing her case. While
Worthington may have believed she did not need to appeal from the involuntary dismissal
because her motion for Civ.R. 60(B) relief had been granted, that assumption was
incorrect. Worthington had the ability to directly appeal from the involuntary dismissal
and could also have filed a motion for relief from judgment.
{¶ 28} Specifically, there was no barrier to filing both an appeal and a motion for
relief from judgment. “[W]here a motion to vacate a judgment is pending in the trial court
and an appeal is also pending on the same judgment, * * * the appellant may move the
3 As indicated in fn.1, we checked the docket in this case, and Worthington has never
filed a notice of appeal from the involuntary dismissal.
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appellate court, for good cause, to remand the matter to the trial court for a hearing on
the motion to vacate without divesting the appellate court of jurisdiction to hear the
pending appeal if it is not rendered moot by the hearing on the motion to vacate.”
Majnaric v. Majnaric, 46 Ohio App.2d 157, 161, 347 N.E.2d 552 (9th Dist.1975). Accord
Howard v. Catholic Social Servs. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 147, 637
N.E.2d 890 (1994); Huntington Natl. Bank v. Payson, 2d Dist. Montgomery No. 26396,
2015-Ohio-1976, ¶ 27 (where motion for Civ.R. 60(B) relief was filed two weeks after
judgment, and notice of appeal was filed two weeks later, the trial court did not err by
refusing to hold a hearing on the motion to vacate judgment).
{¶ 29} Accordingly, both an appeal and a Civ.R. 60(B) motion may be filed to
challenge a trial court’s decision, and Worthington could have done so. Furthermore,
while the time for filing a notice of appeal from the involuntary dismissal did not expire
until after the trial court set aside the judgment on July 28, 2020, that does not change
the analysis. The reason for this is that a grant of relief from judgment is a final
appealable order. R.C. 2505.02(B)(3). This allowed Ulbrichs to file an immediate
appeal, which it did.
{¶ 30} If Worthington had also appealed from the involuntary dismissal, that
judgment would have been properly before us, and we could have decided which trial
court decision was correct. However, since Worthington failed to appeal, she was left,
in the event of an adverse appellate judgment, without the remedy she would have had if
she had properly appealed. Even if Worthington claimed she were willing to forego that
remedy, her choice would be irrelevant. As indicated, a party may not use Civ.R. 60(B)
as a substitute or in lieu of appeal. Colley v. Bazell, 64 Ohio St.2d 243, 245, 416 N.E.2d
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605 (1980).
{¶ 31} Furthermore, Ulbrichs filed its notice of appeal on August 26, 2020. At that
time, several days remained during which Worthington could have filed a notice of appeal
challenging the initial decision to involuntarily dismiss her case. This could easily have
been done, and again, it would have afforded Worthington with a remedy if we held that
the trial court erred in granting the motion for relief from judgment.
{¶ 32} The case before us presents a unique situation, in which the grant of the
motion for relief from judgment occurred before the time for filing a notice of appeal
expired. We have found no authority in Ohio specifically discussing situations where a
motion for relief from judgment is filed and is also decided before the time for appeal has
run. The parties also have not brought any such cases to our attention. This is probably
because courts would rarely decide such motions within the 30-day appeal time.
Notably, this situation would not have occurred in the case before us, but for the fact that
filing deadlines were tolled. The trial court’s order on the motion for relief from judgment
was filed on July 28, 2020, which was more than 30 days after the May 11, 2020
involuntary dismissal.
{¶ 33} In Smith v. Bd. of Health, 4th Dist. Scioto No. 92CA-2095, 1993 WL 256323,
(June 29, 1993), the plaintiff filed a motion for relief from judgment within the time allotted
for appeal, and her motion was denied. She appealed from the denial of the motion but
did not appeal the original judgment. Id. at *1. The case involved claims of “legal error”
in the trial court’s judgment entry under Civ.R. 60(B)(1), which the appellate court
interpreted as asserting the kind of error that properly falls under Civ.R. 60(B)(5). Id. at
*1 and 5. The record is not clear concerning whether, as here, the decision denying relief
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from judgment was filed within the appeal time for challenging the original dismissal of
the action. Nonetheless, the analysis in the case is of interest.
{¶ 34} In deciding whether the motion for relief was properly denied, the Fourth
District Court of Appeals discussed case law concerning two situations: (1) cases where
a motion for relief was filed after the time for filing a notice of appeal had expired; and (2)
cases where the motion was filed before the appeal time had elapsed. Regarding the
latter circumstance, the court discussed three options: (1) that Civ.R. 60(B) is never a
substitute for appeal; (2) that “[p]arties may seek relief from judgment under Civ.R. 60(B)
based upon error of law when the motion is filed within the time for appeal and the claimed
mistake is obvious and apparent on the record”; and (3) that “[p]arties may seek relief
from judgment based upon any alleged legal error if the motion is filed within the time
allowed for appeal.” Id. at *3, 5, and 6.
{¶ 35} The court of appeals agreed with the first option, i.e., that in this situation,
Civ.R. 60(B) is never a substitute for an appeal. This was based on existing case law;
the fact that the Ohio Civil Rules do not permit tolling of appeal time for Civ.R. 60(B)
motions, unlike other motions such as motions for a new trial; and the fact that “a motion
seeking relief from judgment based upon legal error is the functional equivalent of a
motion to reconsider a final appealable judgment. The Ohio Rules of Civil Procedure do
not provide a procedure for reconsideration of a trial court's final judgment and such
motions are a nullity.” Id. at *3, citing Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378,
423 N.E.2d 1105 (1981), paragraph one of the syllabus.
{¶ 36} In addition, the court commented that parties should not be allowed to
circumvent the function of appellate courts, which is to correct legal error by trial courts.
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Id. at *4. And finally, the court did not find the idea of increased judicial economy
persuasive. The court observed, “If the parties had been amenable to agreement the
matter would have been resolved before the trial court's original decision. In all
probability the inevitable appeal will come from the party who now claims error in the
granting of the Civ.R. 60(B) motion.” Id. at *5. This is exactly what occurred in the case
before us.
{¶ 37} As indicated, the second option discussed was whether motions should be
permitted before appeal time lapses where the legal error is obvious and apparent on the
face of the record. However, the court rejected this option as well, commenting that “[t]he
problem with adopting this rule is that the standard ‘obvious legal error’ is difficult to
define, calling for a case by case determination, usually by an appellate court. Further,
as noted above, it is unlikely that a party who had initially been granted judgment would
agree with the Civ.R. 60(B) relief and forego their right to appeal. Again, we are forced
to ask, ‘Where's the economy?’ ” Id. at *6.
{¶ 38} The court of appeals also noted that “[a] potential alternative is to require
the trial court to make a preliminary ruling on whether the alleged error was obvious and
plain from the record or whether the issue would be more appropriately decided by the
appeals court. This approach, too, raises problems, for example, the trial court failing to
make this ruling until the appeal period has expired.” Id.
{¶ 39} The third option was to allow motions for relief from judgment if they are
filed within the time for filing a notice of appeal, even if the legal error is not obvious. The
court rejected this option because “the request seems to be a disguised motion for
reconsideration which has been explicitly held to be a nullity. * * * Further, allowing a court
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to reconsider its prior ruling under the guise of a 60(B) motion may do nothing more than
postpone the inevitable appeal.” Id. at *7. The court therefore held that “[h]aving fully
considered all of these options, we hold that Civ.R. 60(B) cannot be used as a substitute
for appeal, even when the Civ.R. 60(B) motion is filed within the period for a timely
appeal.” Id. The court did not go on to consider the other two requirements for relief,
because it concluded that the second requirement, “entitlement to relief under Civ.R.
60(B)(1)-(5)” was not satisfied. Id. The court’s decision did not discuss res judicata.
{¶ 40} There are situations where a party has filed a motion to set aside the
judgment before the time for appeal has lapsed and then only appeals the judgment on
the motion. For example, in Colley, 64 Ohio St.2d 243, 416 N.E.2d 605, the defendant
filed a motion for relief from judgment before the time for filing a notice of appeal from the
original judgment had expired. Id. at 243. Specifically, a default judgment was granted
on February 13, 1978, and the motion for relief from judgment was filed on February 24,
1978. Id. After the motion was overruled, the defendant filed a notice of appeal from
that judgment. Id. at 244. The defendant did not appeal from the default judgment,
however; he only appealed from the denial of his motion for relief from judgment and from
an order denying reconsideration of that motion. Id. The court of appeals then reversed
the trial court's decision as to a hearing on damages, but not as to liability. Id.
{¶ 41} On further appeal to the Supreme Court of Ohio, the plaintiff claimed that
the defendant's “appeal from the denial of his application for Civ.R. 60 relief should have
been dismissed by the Court of Appeals because the notice of appeal was filed on May
9, 1978, more than 30 days following the granting of the default judgment on February
13, 1978.” Id. at 245.
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{¶ 42} The Supreme Court of Ohio agreed with the plaintiff that “the time for filing
a notice of appeal from a judgment is not tolled by either the filing of a Civ.R. 60(B) motion
for relief from judgment or a motion to reconsider.” Id. at 245. The court also agreed
that “a motion for relief from judgment is not a substitute for a direct appeal from the
judgment challenged.” Id. However, the court rejected the plaintiff's argument, stating
that the defendant was not appealing from the original default judgment; he was only
appealing from the denial of his motion for relief from judgment. Id. at 245-246.
{¶ 43} At first blush, this may seem to indicate that Worthington could file a motion
for relief from judgment and not have to also appeal from the involuntary dismissal.
However, the difference between Colley and the current situation is that the defect there
was not apparent on the face of the record. Specifically, the case involved excusable
neglect, and the motion was supported by affidavits and documents showing that the
defendant timely and properly forwarded the litigation papers to his insurance agent.
However, due to delay in the mail, the papers did not arrive at the insurer's office until
after the time for filing the answer had elapsed. Id. at 244. These are matters that could
not have been resolved on the basis of the record existing when the default judgment was
granted. The motion also involved different issues than the decision on the default
judgment. As a result, the defendant's failure to appeal from the default judgment did
not prevent the appellate court from considering the motion for relief from judgment.
Again, this is not the situation here. Furthermore, Worthington is not appealing from a
judgment denying her motion for relief from judgment; she did not appeal at all.
{¶ 44} Perhaps a more accurate way of considering the application of these
matters is that, whether or not the time for appeal has lapsed, Civ.R. 60(B) may not be
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used as a substitute for appeal if the matter can be resolved based on the content of the
record that existed when the trial court’s original decision was made. This would
particularly be true in situations involving “court errors and omissions,” which are
generally held to be included within Civ.R. 60(B)(5). State ex rel. Gyurcsik v. Angelotta,
50 Ohio St.2d 345, 347, 364 N.E.2d 284 (1977). See also Templin v. Grange Mut. Cas.
Co., 2d Dist. Montgomery No. 12261, 1991 WL 60657, *5 (Apr. 8, 1991) (“the form of
‘error or omission’ contemplated by Civ.R. 60(B)(5) must arise from circumstances
chargeable to the court or otherwise beyond the control of the movant”). This is not to
say a motion based on a trial court’s errors or omissions could never be based on matters
outside the record, only that this would be less common.
{¶ 45} As indicated, the trial court’s decision to involuntarily dismiss the action
before Worthington had an opportunity to respond and any error in the decision could
have been evaluated on the record as it existed when the motion was granted.
Consequently, the dismissal should have been appealed. Because Worthington failed
to appeal, her claim is precluded by res judicata. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-
4275, 21 N.E.3d 1040, at ¶ 15.
{¶ 46} “Res judicata is a judicially created doctrine premised on the belief that
‘public policy, judicial orderliness, economy of judicial time, and the interest of litigants,
as well as the peace and order of society, all require that stability should be accorded
judgments, that controversies once decided on their merits shall remain in repose, that
inconsistent judicial decisions shall not be made on the same set of facts, and that there
be an end to litigation * * *.’ ” Berry v. Berry, 2d Dist. Montgomery No. 13746, 1993 WL
295096, *3 (July 28, 1993), quoting 46 American Jurisprudence 2d, Judgments, Section
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395 at 559-561 (1969).
{¶ 47} Under this doctrine, “a valid, final judgment rendered upon the merits bars
all subsequent actions based upon any claim arising out of the transaction or occurrence
that was the subject matter of the previous action.” Grava v. Parkman Twp., 73 Ohio
St.3d 379, 382, 653 N.E.2d 226 (1995).
{¶ 48} Here, the trial court dismissed the case for lack of prosecution under R.C.
41(B)(1), with prejudice. See Judgment Granting Relief from Judgment (July 28, 2020).
At first glance, one might think that such a dismissal did not consider the merits of the
case. Unfortunately, however, Civ.R. 41(B)(3) provides that “[a] dismissal under
division (B) of this rule and any dismissal not provided for in this rule, except as provided
in division (B)(4) of this rule, operates as an adjudication upon the merits unless the
court, in its order for dismissal, otherwise specifies.”4 (Emphasis added.)
{¶ 49} In the case before us, the court did not specify that the dismissal was without
prejudice; as noted, the court dismissed the case with prejudice. Therefore, the
judgment was on the merits, and res judicata applies. As a result, Worthington’s failure
to appeal from the involuntary dismissal barred her ability to obtain relief from judgment.
Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, at ¶ 15.
{¶ 50} Unlike Ohio, federal courts do not rely on res judicata in this context.
“Rather than using res judicata, federal courts hold that the party has failed to qualify for
relief under Fed.Civ.R. 60(b)(6) because he chose not to appeal from the judgment.” In
re Gledhill, 76 F.3d 1070, 1082 (10th Cir.1996) (discussing the federal counterpart to
4 Civ.R. 41(B)(4) pertains to dismissals for lack of jurisdiction over a person or subject
matter or for failure to join parties, which are specifically designated as dismissals that
“operate as a failure otherwise than on the merits.”
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Civ.R. 60(B)(5)).
{¶ 51} In Gledhill, the court further commented that:
The doctrine of res judicata bars a collateral attack on a final
judgment, but “does not apply to direct attacks on judgments.” Watts v.
Pinckney, 752 F.2d 406, 410 (9th Cir.1985); see also 1B James William
Moore & Jo Desha Lucas, Moore's Federal Practice ¶ 0.407 (2d ed. 1995)
(“It is elementary, of course, that res judicata does not preclude a litigant
from making a direct attack upon the judgment before the court that renders
it.”). Rule 60(b) provides a procedural avenue whereby, in appropriate
circumstances, a party may assert a direct attack on a final judgment or
order. See Fed.R.Civ.P. 60(b); Liljeberg [v. Health Services Acquisition
Corp.], 486 U.S. [847] at 863, 108 S.Ct. [2194] at 2204[,100 L.Ed.2d 855(1988)]. Thus, “ ‘[r]es judicata does not preclude a litigant from making a
direct attack under Rule 60(b) upon the judgment before the court which
rendered it.’ ” Weldon v. United States, 70 F.3d 1, 5 (2d Cir.1995) (quoting
Watts [v. Pinckney], 752 F.2d [406] at 410 [(9th Cir.1985)] (quotation and
alteration omitted); see also 1B Moore & Lucas, supra, ¶ 0.407 (stating that
res judicata does not bar a litigant from seeking Rule 60(b) relief from the
court which rendered the judgment).
(Emphasis sic.) Gledhill at 1082-1083. See also Plotner v. AT & T Corp., 224 F.3d
1161, 1174 (10th Cir.2000); Jordon v. Gilligan, 500 F.2d 701, 710 (6th Cir.1974); In re
Jerome Duncan, Inc., 333 Fed.Appx. 14, 16 (6th Cir.2009); and PennyMac Corp. v.
Godinez, 148 Hawai’i 323, 330, 474 P.3d 264 (2020) (noting that Kuchta, 141 Ohio St.3d
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75, 2014-Ohio-4275, 21 N.E.3d 1040, “goes against the weight of authority on this
subject”).
{¶ 52} Thus, under the federal approach, where a party fails to appeal from the
original judgment and the relevant facts are ascertainable on the record, the case simply
does not fall within the circumstances allowing Civ.R. 60(B) relief. This is similar to the
approach outlined in Smith, 4th Dist. Scioto No. 92CA-2095, 1993 WL 256323. As
noted, Smith did not rely on res judicata, but held that the requirements in Civ.R. 60(B)(5)
were not satisfied. Id. at *7.
{¶ 53} Logic dictates that in situations where facts outside the record apply (as in
cases like Colley, where post-judgment affidavits or facts were presented), the case
would fall within the circumstances allowing Civ.R. 60(B) relief, and where the motion is
denied, the aggrieved party can appeal the denial of the motion for relief from judgment
even if he or she did not appeal from the original judgment. As an example, see Lemoge
v. United States, 587 F.3d 1188 (9th Cir.2009).
{¶ 54} In Lemoge, the plaintiff’s attorney did not respond to a court order asking
why the case should not be dismissed due to his failure to serve the government with the
summons and complaint within 120 days. Id. at 1191. Thereafter, the court dismissed
the case on that basis. A motion for relief from judgment was filed seven months later,
and testimony at a hearing revealed that the attorney’s extensive medical problems
demonstrated excusable neglect. Id. at 1196-1197. That, along with satisfaction of
other factors, justified setting the judgment aside, and the court of appeals reversed the
trial court’s decision. Id. Quite obviously, an appeal from the original judgment would
have been futile, as none of these facts were known or were in the record. Therefore,
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resort to Civ.R. 60(B) and an appeal from an adverse decision on that ground was
appropriate.
{¶ 55} Despite the fact that the Ohio and federal approaches differ, the same result
would occur here under either approach, because Worthington failed to appeal from the
trial court’s decision to grant the motion for relief from judgment. While this holding is
fatal to Worthington’s claim, we will consider another issue, as it provides further grounds
for reversing the trial court’s decision. As noted, Ulbrichs also argues that the trial court
erred by failing to address the requirement in Civ.R. 60(B) that Worthington have a
meritorious claim.
{¶ 56} Along with the other requirements in Civ.R. 60(B), a party must prove that
she “has a meritorious defense or claim to present if relief is granted.” GTE Automatic
Elec., 47 Ohio St.2d 146, 351 N.E.2d 113, at paragraph one of the syllabus. As
indicated, the requirements in Civ.R. 60(B) are “independent and in the conjunctive, not
the disjunctive.” Id. at 151. Therefore, Worthington must have proven that she had a
meritorious claim to present.
{¶ 57} In Colley, which was a legal malpractice action, the court commented that
“[t]he movant's burden is to allege a meritorious defense, not to prevail with respect to the
truth of the meritorious defense.” Colley, 64 Ohio St.2d at 247, 416 N.E.2d 605, fn.3.
This comment was made in the context of the defendant’s affidavit, which stated, among
other things, that he told his client the law was strongly against him and that suit would
be futile. Id. The defendant also said he had advised the client in time to get other
counsel. Id. Although the client disputed this, the court stressed that “a determination
of such a dispute is not appropriate where the issue is resolution of the motion for relief
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from judgment.” Id. The court then made the above comment about the movant’s
burden and found the defendant had shown that he had a meritorious defense. Id. at
247 and fn.3.
{¶ 58} In the case before us, Worthington’s motion for relief from judgment was
extremely brief, and made no mention of having a meritorious claim. To the contrary,
Worthington simply stated that if the court sustained her motion for relief from judgment,
she would file her own notice of voluntary dismissal and re-file the action in accord with
the Savings Statute. Motion for Relief from Judgment at p.1.5 The court’s decision
granting relief from judgment also said nothing about whether Worthington had a
meritorious claim.
{¶ 59} In responding to Ulbrichs’s argument, Worthington states that
“[u]nfortunately, depositions did not proceed and the record is thus very limited.”
Appellee’s brief, p. 4. This ignores the fact that depositions did not proceed because
Worthington failed to appear for her deposition, which by agreement, had been scheduled
after the discovery deadline expired.
{¶ 60} According to Worthington, she was entitled to rely on her complaint, which
asserted that she suffered right shoulder injuries as a result of an accident while employed
at Ulbrichs. Id. However, Worthington did not raise this point in the trial court. “A first
principle of appellate jurisdiction is that a party ordinarily may not present an argument
on appeal that it failed to raise below.” State v. Wintermeyer, 158 Ohio St.3d 513, 2019-
Ohio-5156, 145 N.E.3d 278, ¶ 10, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121,
5In fact, Worthington had already filed her notice of dismissal – on the same day the
motion for relief from judgment was filed, but prior to the filing of the motion.
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679 N.E.2d 1099 (1997).
{¶ 61} Even if we were to consider Worthington’s argument, “[t]he movant has the
burden of proving that he is entitled to the relief requested or to a hearing on the motion.
Therefore, he must submit factual material which on its face demonstrates the timeliness
of the motion, reasons why the motion should be granted and that he has a defense [or
claim]”. (Emphasis and parenthetical material added.) Adomeit, 39 Ohio App.2d at
103, 316 N.E.2d 469. “In order to satisfy that requirement the motion and/or the affidavit
submitted in support of the motion must set out operative facts which, if true, constitute a
prima facie showing of the claim or defense concerned. A prima facie showing is one
which is ‘[s]ufficient to establish a fact or raise a presumption unless disapproved or
rebutted.’ ” Stewart v. Heard, 2d Dist. Montgomery No. 20787, 2005-Ohio-5241, ¶ 24,
quoting Black’s Law Dictionary (7th Ed.). Furthermore, “conclusory allegations without
any evidentiary support” do not establish a basis for relief under Civ.R. 60(B).
Cunningham v. Ohio Dept. of Transp., 10th Dist. Franklin No. 08AP-330, 2008-Ohio-
6911, ¶ 37. Accord Younomics Private Student Loan Tr. v. McKinley, 2d Dist.
Montgomery No. 28630, 2020-Ohio-3989, ¶ 19.
{¶ 62} Although Worthington did not have to prevail on the merits of her claims,
she made no effort at all to make a prima facie case in her motion. To the contrary, she
only indicated she was going to dismiss the action and re-file if the claim for relief were
granted. She did not explain her reasons for doing so, and we refuse to speculate.
{¶ 63} Furthermore, the trial court failed to even mention the issue of a meritorious
claim in its decision. Accordingly, we agree with Ulbrichs that the motion for relief from
judgment should not have been granted, and the trial court abused its discretion in doing
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so.
{¶ 64} Based on the preceding discussion, the First Assignment of Error is
sustained. Because this resolves the matter, there is no need to discuss any other
argument Ulbrichs has raised in support of this assignment of error.
{¶ 65} As a final matter, we note that our reversal of the order granting relief from
judgment means that the original involuntary dismissal regains its status as the court's
final order. As a result, the Civ.R. 41(A)(1)(a) notice of dismissal that Worthington filed
on June 30, 2020, has no force or effect. Pearce v. Church Mut. Ins. Co., 9th Dist.
Medina No. 02CA0101-M, 2003-Ohio-3147, ¶ 15. However, because a Civ.R. 60(A)
motion is still pending, this matter will be remanded to the trial court for further
proceedings.
III. Effect of Court’s Dismissal
{¶ 66} Ulbrichs’s Second Assignment of Error states:
The Trial Court Erred in Dismissing Worthington’s Complaint Without
Prejudice Where Such Dismissal Acts as a Dismissal Without Prejudice
Pursuant to Civ.R. 41(A)(2), Thereby Permitting Worthington to File,
Dismiss, and Re-File Her Complaint a Third Time.
{¶ 67} Under this assignment of error, Ulbrichs contends that the trial court’s order
improperly converted Worthington’s Civ.R. 41(A)(1)(a) dismissal into a court-ordered
dismissal under Civ.R. 41(A)(2), which would avoid Ohio’s “double-dismissal” rule and
would give Worthington an extra opportunity to dismiss her case again.
{¶ 68} “The ‘double dismissal’ rule is set forth in Civ.R. 41(A)(1): ‘a notice of
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dismissal operates as an adjudication upon the merits of any claim that the plaintiff has
once dismissed in any court.’ The second voluntary dismissal is thus with prejudice, and
res judicata will bar the filing of a third action.” State ex rel. Jackson v. Ohio Adult Parole
Auth., 140 Ohio St.3d 23, 2014-Ohio-2353, 14 N.E.3d 1003, ¶ 16, citing State ex rel.
Dillard Dept. Stores v. Ryan, 122 Ohio St.3d 241, 2009-Ohio-2683, 910 N.E.2d 438, ¶ 13,
and Olynyk v. Scoles, 114 Ohio St.3d 56, 2007-Ohio-2878, 868 N.E.2d 254, ¶ 8.
{¶ 69} Because the effect of our opinion is to return the status of the case to an
involuntary dismissal with prejudice under Civ.R. 41(B)(1), this argument is moot.
Accordingly, the Second Assignment of Error is overruled.
IV. Conclusion
{¶ 70} Ulbrichs’s First Assignment of Error having been sustained, and its Second
Assignment of Error having been overruled as moot, the judgment of the trial court is
reversed, and this cause is remanded for further proceedings.
.............
TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Shawn M. Wollam
Mark C. Engling
Natalie J. Tackett
Hon. Stacy M. Wall