[Cite as Williams v. McFarland Properties, 2013-Ohio-1384.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




JOHN WILLIAMS, SR., et al.,                            :
                                                              CASE NO. CA2012-09-187
        Plaintiffs-Appellants,                         :
                                                                   OPINION
                                                       :            4/8/2013
   - vs -
                                                       :

McFARLAND PROPERTIES, et al.,                          :

        Defendants-Appellees.                          :



            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2005-09-3061



Timothy R. Evans and Clayton G. Napier, 29 North D Street, Hamilton, Ohio 45013, for
plaintiffs-appellants

Freund, Freeze & Arnold, Gordon D. Arnold, One Dayton Centre, Suite 1800, 1 South Main
Street, Dayton, Ohio 45402, for defendants McFarland Properties, David McFarland, Griffin
M. McFarland

Mike DeWine, Ohio Attorney General, 30 East Broad Street, Columbus, Ohio 43215, for
Defendant Workers' Compensation

Dinsmore & Shohl LLP, Gary E. Becker and Robert M. Zimmerman, 1900 First Financial
Center, 225 East Fifth Street, Cincinnati, Ohio 45202, for defendant-appellee, City of
Hamilton



        M. POWELL, J.

        {¶ 1} Plaintiff-appellant, John Williams, Sr., appeals from a decision in the Butler
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County Court of Common Pleas denying his motion for relief from summary judgment that

the court entered in favor of defendant-appellee, the city of Hamilton ("city"). For the reasons

outlined below, we affirm.

       {¶ 2} Williams worked as a lineman for the city's electric distribution department. On

September 27, 2004, Williams was injured while attempting to repair a downed electrical

transformer located at University Boulevard and Lincoln Avenue in Hamilton.               As a

consequence, Williams filed suit against the city and several other parties on September 22,

2005. Among his claims, Williams asserted that the city had committed an intentional tort

against him. The city moved for summary judgment, claiming that it was entitled to immunity

on the basis of R.C. Chapter 2744 which addresses the tort liability of political subdivisions.

       {¶ 3} On August 23, 2007, the trial court rendered summary judgment in favor of the

city. Generally, political subdivisions are immune from liability, subject to some exceptions.

Williams alleged that an exception to immunity for intentional tort claims was provided by

R.C. 2744.09(B). However, the trial court held that R.C. 2744.09(B) does not apply to

intentional tort claims and found that the city was immune from Williams' suit. Williams

appealed the trial court's determination to this court in 2008, whereby we affirmed the

decision of the trial court granting summary judgment to the city. See Williams v. McFarland

Properties, L.L.C., 177 Ohio App.3d 490, 2008-Ohio-3594 (12th Dist.). Williams then

appealed to the Ohio Supreme Court, which declined to accept jurisdiction on December 3,

2008. See Williams v. McFarland Properties, L.L.C., 120 Ohio St.3d 1421, 2008-Ohio-6166.

       {¶ 4} Subsequently, in 2012, the Ohio Supreme Court held in Sampson v. Cuyahoga

Metro. Hous. Auth., 131 Ohio St.3d 418, 2012-Ohio-570, that R.C. 2744.09(B) applies to

intentional tort claims made by political subdivision employees when there is a causal

connection between claims raised by an employee and the employment relationship. Based

on this decision, on June 18, 2012, Williams moved for relief from summary judgment. The
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trial court denied Williams' motion, finding that Williams was not entitled to relief because

Sampson represented a change in decisional law and overturned "a long-standing principle

that political subdivisions were immune from liability based upon intentional torts." Williams

now appeals, and asserts one assignment of error for review.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE COURT ERRED IN DENYING [WILLIAMS'] MOTION FOR RELIEF FROM

JUDGMENT[.]

       {¶ 7} Williams argues that the trial court erred in denying his motion for relief from

judgment because the Ohio Supreme Court recently articulated law that allows political

subdivisions to be sued by their employees under an intentional tort theory.              As a

consequence of this decision, Williams argues that he is entitled to relief under Civ.R.

60(B)(5). We disagree.

       {¶ 8} In Williams' specific argument, he contends that Sampson merely articulated

the law already in existence regarding political subdivision immunity and did not overrule prior

case precedent. As discussed more fully below, Sampson represents a change in decisional

law, and as such, may not serve as the basis of Civ.R. 60(B) relief. Consequently, we reject

this argument.

       {¶ 9} An appellate court will not disturb a trial court's decision regarding a Civ.R.

60(B) motion absent a showing of an abuse of discretion. Veidt v. Cook, 12th Dist. No.

CA2003-08-209, 2004-Ohio-3170, ¶ 14, citing Strack v. Pelton, 70 Ohio St.3d 172, 174

(1994). An abuse of discretion occurs when the trial court's decision is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶ 10} Civ.R. 60(B) provides in part:

              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,
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                 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.

To prevail on a Civ.R. 60(B) motion, 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 * * *." GTE Automatic Elec., Inc. v. ARC Industries., Inc., 47 Ohio

St.2d 146 (1976), paragraph two of the syllabus. The moving party fails the test by not

meeting any one of the above requirements. Fitzwater v. Woodruff, 12th Dist. No. CA2006-

01-001, 2006-Ohio-7040, ¶ 10; Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20 (1988).

        {¶ 11} We find that Williams is not entitled to relief under Civ.R. 60(B)(5) as he

asserts.1 The Ohio Supreme Court has expressly stated that a change in decisional law in

an unrelated proceeding does not entitle a party to relief from a final judgment under Civ.R.

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

the syllabus. The purpose for such a holding is "the strong interest in the finality of

judgments."       Doe at 131.         To allow reopening would undermine the stability of final

judgments. Id.

        {¶ 12} In this case, the initial judgment was supported by case law in numerous

appellate districts interpreting the Ohio Supreme Court case, Brady v. Safety-Kleen Corp., 61


1. We also note that Williams is not entitled to relief under Civ.R. 60(B)(4) because "it is well-settled that relief
under Civ.R. 60(B)(4), '* * * is limited to cases in which the present judgment is based on the prior judgment in
the sense of res judicata or collateral estoppel. It does not apply merely because a case relied on as precedent
by the court in rendering the present judgment has since been reversed.'" Doe v. Trumbull Cty. Children Servs.
Bd., 28 Ohio St.3d 128 (1986), fn. 2, quoting Wright & Miller, Federal Practice and Procedure, Section 2863, at
204 (1973).
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Ohio St.3d 624 (1991), that stated intentional torts necessarily occur outside of the

employment relationship. These districts explicitly held that R.C. 2744.09(B) does not except

an employer-intentional-tort claim from the general grant of immunity given to a political

subdivision under R.C. Chapter 2744. See, e.g., Schmitz v. Xenia Bd. of Edn., 2d Dist. No.

2002-CA-69, 2003-Ohio-213; Fabian v. City of Steubenville, 7th Dist. No. 00 JE 33, 2001 WL

1199061 (Sept. 28, 2001); Engleman v. Cincinnati Bd. of Edn., 1st Dist. No. C-000597, 2001

WL 705575 (June 22, 2001); Terry v. Ottawa Cty. Bd. of Mental Retardation & Dev.

Disabilities, 151 Ohio App.3d 234, 2002-Ohio-7299 (6th Dist.); Ellithorp v. Barberton City

School Dist. Bd. of Edn., 9th Dist. No. 18029, 1997 WL 416333 (July 9, 1997); Coats v.

Columbus, 10th Dist. No. 06AP-681, 2007-Ohio-761; Sabulsky v. Trumbull Cty., 11th Dist.

No. 2001-T-0084, 2002-Ohio-7275. Additionally, a final judgment was rendered, it was

affirmed on appeal, and jurisdiction was declined by the Ohio Supreme Court. This scenario

clearly points to a change in decisional law. In any event, to allow relief under Civ.R. 60(B) in

this instance would undermine the integrity of final judgments. Consequently, we cannot say

the trial court abused its discretion by denying Williams' Civ.R. 60(B) motion. Williams' sole

assignment of error is overruled.

       {¶ 13} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




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