[Cite as Green v. Clair, 2014-Ohio-1605.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

CITY OF GREEN                                         C.A. No.       26918

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
GARY E. CLAIR                                         COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellee                                      CASE No.   CV 1999 07 2610

                                 DECISION AND JOURNAL ENTRY

Dated: April 16, 2014



        WHITMORE, Judge.

        {¶1}     Plaintiff-Appellant, the City of Green (“the City”), appeals from the judgment of

the Summit County Court of Common Pleas. This Court affirms.

                                                  I

        {¶2}     In July 1999, the City filed suit against Defendant-Appellee, Gary Clair, claiming

that a structure on Clair’s property at 252 E. Comet Road violated several provisions of the

City’s zoning code. The City asked the court for both declaratory and injunctive relief. Clair

filed a counterclaim alleging harassment and deceit, and a period of contentious discovery

commenced. Subsequently, the court granted the City’s motion to dismiss Clair’s counterclaim.

        {¶3}     On April 21, 2000, the court entered a judgment entry incorporating a settlement

agreement reached by the parties. The settlement agreement provided, in relevant part, as

follows:

        2. It is agreed between the parties that the landowner, Gary Clair, who owns the
        property in dispute at 252 East Comet Road, within the City of Green, Summit
                                                2


       County, Ohio, and who has built a garage structure on said property, agrees that
       he will not reside in the garage structure nor permit others to do so. Further, Gary
       Clair agrees that he will not conduct a business in the garage structure located on
       this property nor allow others to do so.

       3. Further, Gary Clair agrees to abide by all existing City of Green zoning
       ordinances.

The court retained jurisdiction over the matter for purposes of enforcing the settlement

agreement.

       {¶4}    In January 2011, the City filed a motion for contempt, arguing that Clair had

violated the terms of the settlement agreement “by moving into and residing in the garage

structure” on the property at 252 East Comet Road. Clair responded that he no longer owned

252 East Comet Road and that he was residing at a structure located at 244 East Comet Road.

Both parties briefed the contempt issue for the court, and the court held several status

conferences on the City’s motion.     On April 20, 2011, the court issued a judgment entry

dismissing the City’s motion.    The court found that, by its plain language, the settlement

agreement only pertained to the structure at 252 East Comet Road, not a structure at 244 East

Comet Road.

       {¶5}    Rather than appeal from the trial court’s April 20, 2011 judgment entry, the City

filed a motion for reconsideration. On April 28, 2011, the court granted the City’s motion to

reconsider on the ground that the court had not held a hearing before ruling on the City’s motion

for contempt. The court then held a hearing, at which the parties presented substantial evidence.

On June 15, 2011, the court vacated its initial denial of the City’s motion for contempt, granted

the motion, and ordered Clair to pay attorney fees, as to be determined by the court at a later

date. Clair immediately appealed from the trial court’s June 15, 2011 entry.
                                                 3


       {¶6}    The City sought to dismiss Clair’s appeal for lack of a final, appealable order, as

the trial court had not yet determined the amount of attorney fees to be awarded. Upon review of

the record, however, this Court determined that the trial court’s June 15, 2011 entry was actually

void. See Green v. Clair, 9th Dist. Summit No. 26032 (Dec. 21, 2011). We explained that the

trial court had no authority to vacate the final judgment that it had entered on April 20, 2011.

Specifically, we explained that motions for reconsideration, like the one the City had filed, are

legal nullities, as are any judgments or orders flowing therefrom. Id. at *1-2, citing Pitts v. Ohio

Dept. of Transp., 67 Ohio St.2d 378, 380-381 (1981). We also noted that the City’s motion for

reconsideration could not be reclassified as a Civ.R. 60(B) motion for relief, as it “failed to argue

or justify relief under any of the five reasons set forth in Civ.R. 60(B).” Clair at *2. This Court

vacated the trial court’s June 15, 2011 order as void and dismissed the appeal for lack of a final,

appealable order.

       {¶7}    After this Court’s dismissal, the City filed a Civ.R. 60(B) motion in the trial court,

and Clair filed a brief in opposition. The City then renewed its motion on multiple instances. On

April 12, 2013, the trial court denied the City’s Civ.R. 60(B) motion.

       {¶8}    The City now appeals and raises four assignments of error for our review. For

ease of analysis, we rearrange and consolidate several of the assignments of error.

                                                 II

                                Assignment of Error Number Two

       THE TRIAL COURT ERRED IN FINDING THAT THE CITY OF GREEN DID
       NOT PROVIDE EVIDENCE ENTITLING THEM (sic) TO RELIEF UNDER
       RULE 60(B).
                                                4


                               Assignment of Error Number Three

       THE TRIAL COURT ERRED IN FINDING THAT THE CITY OF GREEN
       WAS NOT ENTITLED TO A HEARING ON ITS MOTION FOR CONTEMPT
       PURSUANT TO REVISED CODE 2705.05.

       {¶9}    In its second and third assignments of error, the City argues that the trial court

erred by denying its Civ.R. 60(B) motion. Specifically, the City argues that the court erred when

it: (1) concluded that the City’s motion failed to satisfy the grounds for relief from judgment set

forth in GTE Automatic Elec., Inc. v. ARC Industries, 47 Ohio St.2d 146 (1976); and (2) refused

to hold a hearing on the City’s motion for contempt.

       {¶10} In its Civ.R. 60(B) motion, the City argued that it was entitled to relief from

judgment because: (1) the court had committed a “mistake” by not holding a hearing on the

City’s motion for contempt; and (2) Clair had committed a “fraud” upon the court by claiming

that he was not residing at the same structure that was the focus of the parties’ settlement

agreement. See Civ.R. 60(B)(1), (3). The City maintains on appeal that “it was entitled [to]

relief under 60(B) because [of] a mistake by the Trial Court in not conducting a hearing on [the

City’s] Motion for Contempt.” The City notes that, when the trial court conducted a hearing on

the City’s motion for reconsideration in June 2011, the court was able to conclude that Green had

committed fraud by virtue of the evidence presented at the hearing. Thus, the City argues that,

had the court properly afforded it the hearing to which it was entitled on its motion for contempt,

it would have prevailed.

       {¶11} “A party may not use a Civ.R. 60(B) motion as a substitute for a timely appeal.”

Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128 (1986), paragraph two of the

syllabus. “[T]he availability of Civ.R. 60(B) relief is generally limited to issues that cannot

properly be raised on appeal. Therefore, the trial court acts within its discretion in denying a
                                                 5


motion to vacate where the movant attempts to raise matters that should have been raised in a

direct appeal.” (Internal quotations and citations omitted.) State ex rel. DeWine v. Helms, 9th

Dist. Summit No. 26472, 2013-Ohio-359, ¶ 10. A trial court’s failure to hold a hearing is an

issue that is appropriate for direct appeal. Watkins v. Williams, 9th Dist. Summit No. 23186,

2007-Ohio-513, ¶ 18. “[S]uch an argument may not form the basis of [a] Civ.R. 60(B) motion.”

Id.

       {¶12} Although the trial court denied the City’s Civ.R. 60(B) motion on the grounds of

the law of the case doctrine or, in the alternative, on its merits, this Court may affirm a judgment

that is “legally correct on other grounds.” Cook Family Invests. v. Billings, 9th Dist. Lorain Nos.

05CA008689 & 05CA008691, 2006-Ohio-764, ¶ 19. The City was not entitled to Civ.R. 60(B)

relief because the argument underlying its motion was one that was appropriate for direct appeal.

See Watkins at ¶ 18; Sinsky v. Matthews, 9th Dist. Summit No. 20248, 2001 WL 888378, *3-4

(Aug. 8, 2001). Rather than file a timely appeal, the City filed a motion for reconsideration.

“[I]t has long since been the law that motions for reconsideration are legal nullities.” See, e.g.,

Pitts, 67 Ohio St.2d at 379 (“Interpretation of the Rules of Civil Procedure and practical

considerations warrant our determination that motions for reconsideration of a final judgment in

the trial court are a nullity.”). The City cannot now use a Civ.R. 60(B) motion as a substitute for

the direct appeal it failed to file. Therefore, the City’s second and third assignments of error are

overruled.

                                Assignment of Error Number One

       THE TRIAL COURT ERRED IN FINDING THAT THE LAW OF THE CASE
       BARS GREEN’S MOTION FOR RELIEF UNDER CIVIL RULE 60(B).
                                                 6


                                Assignment of Error Number Four

       THE TRIAL COURT ERRED IN REFUSING TO CONSIDER EVIDENCE
       AND DOCUMENTATION IN THE COURT’S RECORD; SPECIFICALLY,
       HEARING TRANSCRIPTS AND DOCUMENTS ADMITTED BY THE
       COURT IN EVIDENCE AT A HEARING CONDUCTED BY THE COURT
       WHEN RULING UPON GREEN’S MOTION FOR RELIEF FROM
       JUDGMENT UNDER CIV.R. 60(B).

       {¶13} In its first assignment of error, the City argues that the trial court erred by

concluding that its Civ.R. 60(B) motion was barred by virtue of the law of the case doctrine. In

its fourth assignment of error, the City argues that the court erred by refusing to consider the

evidence the parties presented at the June 6, 2011 hearing on the City’s motion for

reconsideration in support of the City’s Civ.R. 60(B) motion. In light of our resolution of the

City’s second and third assignments of error, the City’s first and fourth assignments of error are

moot, and we decline to address them. See App.R. 12(A)(1)(c).

                                                III

       {¶14} The City’s second and third assignments of error are overruled, and its first and

fourth assignments of error are moot. The judgment of the Summit County Court of Common

Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                7


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    BETH WHITMORE
                                                    FOR THE COURT



CARR, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

STEPHEN J. PRUNESKI, Law Director, for Appellant.

GARY CLAIR, pro se, Appellee.
