Durst v. Nutter

[Cite as Durst v. Nutter, 2021-Ohio-710.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
CHARLOTTE DURST, :
: Case No. 20CA5
Plaintiff-Appellant, :
:
v. : DECISION AND JUDGMENT
: ENTRY
RIKI M. NUTTER, et al., :
: RELEASED: 03/04/2021
Defendants-Appellees. :
_____________________________________________________________
APPEARANCES:
William B. Summers, Parkersburg, West Virginia, for Appellant.
Adam R. Salisbury, Pomeroy, Ohio, for Appellee.
____________________________________________________________
Wilkin, J.
{¶1} This is an appeal of a Meigs County Court of Common Pleas
judgment that denied Appellant’s Civ.R. 60 motion to set aside the trial court’s
judgment entry of settlement. Appellant asserts a single assignment of error: the
trial court committed reversible error in not granting her Civ.R. 60 motion based
on evidence presented in correspondence between counsel. After reviewing the
pertinent facts, procedural history, and law, we overrule Appellant’s assignment
of error, and dismiss Appellant’s appeal pursuant to res judicata.
BACKGROUND
{¶2} Appellant, Charlotte Durst, filed a lawsuit against Appellee, Riki
Nutter, alleging fraud, theft, embezzlement, etc. At trial on May 10, 2019, the
parties settled the case. The trial court instructed counsel to submit an entry
within five days to opposing counsel, and, pursuant to Loc.R. 12.01, the trial
Meigs App. No. 20CA5 2
court would accept or reject an entry within three days of the date that the entry
or entries were submitted. However, neither party submitted a timely entry to the
trial court. Consequently, the trial court issued an entry on September 12, 2019
setting a hearing on the matter for October 10, 2019, which indicated that if the
parties submit an entry prior to that date and the court approved it, the hearing
would be cancelled. Otherwise, the case would be dismissed.
{¶3} On September 19, 2019, Appellee submitted a “final appealable
order” for the trial court’s approval, which included a certificate of service
indicating that it had been sent to Appellant’s counsel on September 18, 2019.
On September 25, 2019, the trial court signed and issued a final order that
resolved all the issues and dismissed all claims by the Appellant with the
following caveat: “The parties stated on the record that they had a disagreement
as to the effect of the dismissal of the claims by [Appellant] as to any applicable
statutes of limitation and any savings statutes. As such, the court renders no
opinion on said issues at the time.”
{¶4} On November 14, 2019, Appellant filed a Civ.R. 60 motion in the trial
court seeking to set aside the September 25th entry. Appellant argued that the
entry did not properly reflect the parties’ agreement in that some claims were to
be dismissed with prejudice, and others were not. Appellant argued that the
judgment should be set aside due to a clerical mistake under Civ.R. 60(A) and
under the “catchall” provision Civ.R. 60(B)(5). The motion was set for a hearing;
counsel from both parties were present. After the hearing, the trial court issued
an entry that denied Appellant’s motion, finding no evidence that the settlement
Meigs App. No. 20CA5 3
entry, as signed, was contrary to the parties’ settlement agreement. The entry
noted that neither party ordered a transcript of the May 10, 2019 proceeding
wherein the parties reached the settlement.
{¶5} On March 23, 2020, Appellant filed a notice of appeal of the trial
court’s order denying Appellant’s Civ.R. 60 motion, asserting a single assignment
of error. On that same day, Appellant filed a praecipe and notice to the court
reporter stating that Appellant
hereby notifies the Clerk of this court need not forward a record
of any transcript or record concerning this Court’s Order entered
February 18, 2020 pursuant to Rule 9(C). The appeal is from the
order which states that no transcript was ordered by the parties
but does detail the factual synopsis concerning the entry of that
Order. As such, the appeal would be one limited to these factual
surroundings for abuse of discretion as evidence was submitted.
{¶6} On April 24, 2020, Appellant filed her appellate brief. Appellee filed
a motion to dismiss Appellant’s appeal and for damages. Appellee argued that
Appellant “unjustifiably failed to order a transcript or file a statement of the
evidence.” We denied Appellee’s motion to dismiss finding that Appellant had a
choice to not request a transcript under App.R. 9(B)(5)(a).
ASSIGNMENT OF ERROR
THE LOWER COURT COMMITTED ERROR BY NOT GRANTING
APPELLANT’S 60(A) AND (B) MOTION BASED ON THE EVIDENCE
PRESENTED IN CORRESPONDENCE BETWEEN COUNSEL PREVIOUSLY
TRYING TO COMPILE THE ORDER
{¶7} Appellant first argues that the parties agreed that the settlement
agreement would reflect that “all claims with the exception to Count VI would be
dismissed without prejudice.” Therefore, Appellant claims that the settlement
entry language that “ ‘[a]ll claims of the [Appellant] are dismissed’ is therefore
Meigs App. No. 20CA5 4
unclear and needs to be corrected as a clerical mistake in the order.”
Consequently, Appellant argues that we should reverse the trial court’s judgment
denying Appellant’s motion to set aside its settlement entry because the trial
court made a clerical mistake that is correctable under Civ.R. 60(A).
{¶8} Appellant also argues she “tried numerous times to ask [Appellee’s]
counsel for an agreement on [the settlement entry] in what would be an attempt
at preventing objections, or otherwise continuing litigation with the [settlement
entry].” Appellant argues that Appellee refused to cooperate in coming to an
agreed entry. Therefore, alternatively, Appellant argues that we should reverse
the trial court’s judgment denying Appellant’s motion to set aside its settlement
entry under Civ.R. 60(B). The Appellee did not file a merit brief.
LAW AND ANALYSIS
{¶9} Before we address the merits of Appellant’s appeal, we believe it is
important to address a procedural issue that we find dispositive of her appeal.
{¶10} “ ‘Res judicata bars relitigation of a matter that was raised or could
have been raised on direct appeal when a final, appealable order was issued in
accordance with the law at the time.’ ” In the Matter of: L.S. Adjudicated
Dependent Child, 4th Dist. Ross No. 20CA3719, 2020-Ohio-5516, quoting State
v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, 4 N.E.3d 989, ¶ 3.
“Consequently, if a Civ.R. 60(B) motion raises issues that the movant could have
challenged on direct appeal, then the doctrine of res judicata prevents the
movant from employing Civ.R. 60(B) as a means to set aside the
court's judgment.” Sydnor v. Qualls, 4th Dist. Scioto No. 15CA3701, 2016-Ohio-
Meigs App. No. 20CA5 5
8410, ¶ 29, 78 N.E.3d 181, citing Blasco v. Mislik, 69 Ohio St.2d 684, 686, 433
N.E.2d 612 (1982). Res judicata similarly bars a Civ.R. 60(A) motion that seeks
to set aside a final judgment in which the same issue was or could have been
raised. See United States v. Salvation Army Harbor Light Complex, 8th Dist.
Cuyahoga No. 53242, 1987 WL 10599, at *1 (Apr. 30, 1987).
{¶11} The settlement entry that Appellant sought to have set aside in her
Civ.R. 60 motion was a “final appealable order” that was filed by the trial court on
September 25, 2019. The question raised in Appellant’s Civ.R. 60 motion, which
was filed on November 14, 2019, was whether the settlement correctly reflected
the intent of the parties. Appellant could have raised that same issue in a direct
appeal of the September 25, 2019 settlement entry. Consequently, Appellant’s
Civ.R. 60(B) motion was barred by res judicata. Because Appellant was, in
effect, attempting to use her Civ.R.60 motion as an appeal, we dismiss her
appeal. See Citizen of Hocking Cty. v. Ohio Power, 4th Dist. Hocking No.
11CA24, 2012-Ohio-4985, ¶ 15.
{¶12} Even assuming arguendo that res judicata did not bar our
consideration of Appellant’s appeal, we find her appeal would otherwise fail on its
merits. We review a trial court’s decision asserting a Civ.R. 60(A) or (B) motion
to set aside a judgment under an abuse of discretion standard. In re D.H., 4th
Dist. Gallia No. 09CA11, 2009-Ohio-6009, ¶ 46 (Addresses the standard of
review of Civ.R. 60(A)); Britton v. Britton, 4th Dist. Washington No. 18CA10,
2019-Ohio-2179, ¶ 23 (Addresses the standard of review of Civ.R. 60(B)).
Meigs App. No. 20CA5 6
{¶13} Civ.R. 60 vests a trial court with authority to set aside a judgment
under certain circumstances. See Varney v. Varney, 4th Dist. Jackson, No. 97
CA 809, 1998 WL 548734, *7 (Aug. 26, 1998). More specifically, “Civ.R. 60(A)
permits a trial court * * * to correct clerical mistakes which are apparent on the
record, but does not authorize a trial court to make substantive changes in
judgments.’ ” In re D.H. at ¶ 47, quoting citing State ex rel. Litty v.
Leskovyansky , 77 Ohio St.3d 97, 100, 671 N.E.2d 236 (1996), superseded by
rule on other grounds. And under Civ.R. 60(B), a trial court may set aside its
judgment for numerous reasons, including
(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.
Whited v. Whited, 4th Dist. Washington No. 19CA26, 2020-Ohio-5067, ¶
9.
{¶14} The September 25, 2019 entry states in pertinent part:
“The parties stated on the record that they had a disagreement as to the effect of
the dismissal of the claims of the [Appellant] as to any applicable statutes of
limitation and any applicable savings statutes. As such[,] the court renders no
opinion on said issues at the time.” (Emphasis added) In denying Appellant’s
Civ.R. 60 motion, the trial court found “no evidence was presented at the hearing
Meigs App. No. 20CA5 7
held on January 16, 2020, which would permit the Court to grant Plaintiff’s motion
to reconsider pursuant to either Civil Rule 60(A) or 60(B).”
{¶15} Even assuming arguendo that the documentation that Appellant
had submitted - (1) a draft entry purportedly submitted to, and rejected by,
Appellee; (2) several e-mails purporting to discuss the draft entry with Appellee;
and (3) the actual September 25, 2019 entry signed by the trial court – is a
“statement of the evidence” that we could consider under App.R.9(C)1, it does
not persuade us that the trial court abused its discretion in denying Appellant’s
Civ.R. 60 motion. Aside from Appellant’s self-serving draft entry, none of these
documents indicates that the parties agreed to the disposition of the claims that
were dismissed, i.e. that they would dismissed with or without prejudice. In fact,
in the settlement entry, the trial court indicated that the parties stated “on the
record that they had a disagreement as to the effect of the dismissal of the claims
of the [Appellant]” * * * As such, the Court renders no opinion on said issues at
this time.” Under these facts, we find the trial court did not abuse its discretion in
denying Appellant’s Civ.R. 60 motion to set aside the settlement agreement.
CONCLUSION
{¶16} Having overruled Appellant’s assignment of error, we dismiss
Appellant’s appeal on res judicata grounds.
APPEAL DISMISSED
1
App.R. 9(C)(1)”contemplates situations when a transcript of proceedings may be unavailable and provides a means to
reconstruct the record.” (Emphasis added.) In re R.P., 4th Dist. Athens No. 17CA35, 2018-Ohio-2679, ¶ 7. Appellant
makes no assertion that there was no record or transcript of the trial court’s hearing on her Civ.R. 60 motion, or for some
reasons was unavailable, which, brings into question whether Appellant could have utilized App.R. 9(C)(1) to submit a
statement of the evidence. Further, there is a question as to whether the documents that Appellant has submitted are a
“statement of the evidence” as that term is used in App.R. 9(C)(1).
Meigs App. No. 20CA5 8
JUDGMENT ENTRY
It is ordered that the appeal is DISMISSED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
MEIGS COUNTY COURT OF COMMON PLEAS to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of the
date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Judge Kristy S. Wilkin
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.