In Re: Pamela K. Smith v. Board of Health

• Decision Date: 28 June 1993
• Docket Number: 93-LW-2454,92CA-2095
• Parties: In re: Pamela K. Smith, Plaintiff-Appellant v. Board of Health, Defendant-Appellee Case
• Court: Ohio Court of Appeals

In re: Pamela K. Smith, Plaintiff-Appellant v. Board of Health, Defendant-Appellee

No. 92CA-2095.

93-LW-2454 (4th)

Court of Appeals of Ohio, Fourth District Scioto

June 28, 1993

Mark W Price, Portsmouth, Ohio, for Appellant.

Richard T. Schisler, Portsmouth City Solicitor, Portsmouth, Ohio, for Appellee.

DECISION

Harsha P.J.

Pamela Smith appeals from a judgment of the Scioto County Court of Common Plead denying her Civ.R. 60(B) motion for relief from a judgment dismissing her R.C. 2506 appeal. She argues one assignment of error:

The trial court should have granted the appellant's motion for relief from judgment.

For the reasons which follow, we disagree and affirm the judgment of the trial court.

Appellee, the Portsmouth Board of Health, dismissed appellant from her position as registrar of vital statistics. The Portsmouth Civil Service Commission affirmed the Board's decision and appellant appealed to the Scioto County Court of Common Pleas. Appellant timely filed her notice of appeal with the Commission and the common pleas court. With the notice of appeal filed with the Commission, appellant filed a praecipe requesting, pursuant to R.C. 2506.02, that a complete transcript and record of the proceedings before the Commission be filed with the common pleas court clerk. The praecipe was not filed in the Scioto County Common Pleas Court. The Commission filed the record on April 17, 1992.

On July 22, 1992, the trial court sua sponte dismissed the appeal because a praecipe, as described in R.C. 2506.02 was not filed with the common pleas court clerk. Appellant did not appeal from this judgment. Instead, on August 4, 1992, she filed a motion for relief from judgment under Civ.R. 60(B), arguing that R.C. 2506.02 does not specify where the praecipe must be filed and that logically, it should be filed with the agency in control of the record. The court overruled appellant's Civ.R. 60(B) motion and appellant timely appealed to this court.

In her sole assignment of error, appellant maintains that the trial court erred in not granting her Civ.R. 60(B) motion because the trial court wrongly interpreted R.C. 2506.02 to require that a praecipe be filed in the common pleas court.

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. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.

The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules.

A motion for relief from judgment pursuant to 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 an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77; Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 66. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506; Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122. When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 169. In order to prevail on a motion for relief from judgment pursuant to Civ.R. 60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness of the motion. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, citing GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus; see, also, Buckeye Fed. S. & L. Assn. v. Guirlinger (1991), 62 Ohio St.3d 312, 314. If any of these three requirements is not met, the motion should be overruled. Rose Chevro let, supra, at 20, citing Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 351; Hopkins v. Quality Chevrolet, Inc. (May 19, 1992), Ross App. No. 1772, unreported, p. 3.

We will first address the second factor, entitlement to reliefunder one of the grounds stated in Civ.R. 60(B)(1) through (5). Appellant claims that relief should have been granted, under Civ.R. 60(B)(1), because the trial court incorrectly interpreted R.C. 2506.02 to require a praecipe be filed with the common pleas court clerk. A claim that a court misinterpreted and misapplied the law asserts judicial error usually remedied by direct appeal.

There are a number of approaches to the specific issue of whether a trial court may properly consider a Civ.R. 60(B) motion for relief from judgment based upon "legal error." Neither the Ohio norm the United States Supreme Court have specifically addressed this issue.

I. Civ.R.60(B) MOTION FILED AFTER TIME FOR APPEAL HAS EXPIRED

The general rule is that after the time for appeal has run, relief based upon legal error cannot be granted under Civ.R. 60(B).

Ohio courts have been confronted with cases where a Civ.R. 60(B) motion for relief from judgment based upon judicial error was filed after the time for appeal had expired. With few exceptions, these courts have held that the Civ.R. 60(B) motion should be overruled because Civ.R. 60(B) was intended to provide relief from a final judgment in specific, enumerated situations and cannot be used as a substitute for a direct, timely appeal. See Doe v. Trumbull County Children Services Board (1986), 28 Ohio St.3d 128, paragraph two of the syllabus; Colley v. Bazell (1980), 64 Ohio St.2d 243; Blasco v. Mislik (1982), 69 Ohio St.2d 684; Dahl v. Kelling (1986), 34 Ohio App.3d 258; State ex rel. City of Elyria v. Trubey (1983), 24 Ohio App.3d 44. These cases are in accord with the generally accepted view that after the time for filing a notice of appeal has expired, a party may not use Civ.R. 60(B) to challenge the legal correctness of a judgment.

Some federal courts have held that judicial error falls in the category of "mistake" under 60(B)(1). See 7 Moore's Federal Practice 60-185, section 60.22(3). However, these courts have not allowed parties to use this mistake as a means to get relief from judgment after the time for appeal expired. See e.g., Morris v. Adams-Mills Corp. (C.A.10, 1985), 758 F.2d 1352; Pierce v. United Mine Workers of America Welfare and Retirement Fund (C.A.6, 1985), 770 F.2d 449; Hopper v. Euclid Manor Nursing Home (C.A.6, 1989), 867 F.2d 291; Parke-Chapley Construction Company v. Cherrington (C.A.7, 1989), 865 F.2d 907.

The policy behind not allowing a Civ.R. 60(B) motion based on legal error after the time for appeal has expired is that parties should not be allowed to escape the consequences of their failure to file a timely appeal by posing questions of law to the trial court -- that is the function of the appellate courts. If a party may raise the same question in a Civ.R. 60(B) motion as could have been raised on appeal, the party would be able to get an indirect extension of time for appeal by appealing the denial of the Civ.R. 60(B) motion. Parke-Chapley, at 915, citing 7 Moore, FederalPractice, 60.22[3].

II. Civ.R.60(B) MOTION FILED BEFORE TIME FOR APPEAL HAS EXPIRED

In the case at bar, however, the Civ.R. 60(B) motion for relief from judgment was filed within the thirty day period for filing an appeal. App.R. 4. This is a tricky area where courts have gone several different ways. Few Ohio courts have actually considered it, and at least one court specifically declined to address it. Dahl, supra, at 259.

A. Option 1: Civ.R. 60(B) is never a substitute for appeal

This position is based on several factors. First, the cases cited above hold that Civ.R. 60(B) is not a substitute for appeal and cannot be used to circumvent the appeals requirements. See Colley, supra; Doe, supra; Blasco, supra.

Second, the civil rules do not allow Civ.R. 60(B) motions to toll the time for appeal. Civ.R. 60(B) specifically states that a motion for relief from judgment does not affect the finality of the judgment or suspend its operation. Kauder v. Kauder (1974), 38 Ohio St.2d 265 (a motion that was filed within the time for appeal construed as a Civ.R. 60(B) motion. "Thus, a Civ.R. 60(B) motion, by whatever name, does not toll the time within which an appeal can be filed."). Pursuant to App.R. 4(B)(1), the period within which to appeal is extended by timely motions (1) for judgment notwithstanding the verdict under Civ.R. 50(B); (2) for a new trial under Civ.R. 59(B); (3) vacating or modifying a judgment by objection to a referee's report under Civ.R. 53(B)(7); and (4) for findings of fact and conclusions of law under Civ.R. 52. A motion for relief from judgment under Civ.R. 60(B) is excluded from this list.

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