[Cite as Culgan v. Miller, 2011-Ohio-6194.]


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

CLIFFORD CULGAN, et al.                               C.A. No.     10CA0074-M

        Appellees
                                                      APPEAL FROM JUDGMENT
        v.                                            ENTERED IN THE
                                                      COURT OF COMMON PLEAS
RICK MILLER, et al.                                   COUNTY OF MEDINA, OHIO
                                                      CASE Nos. 08-CIV-2029
        Appellants                                               08-CIV-2030

                                 DECISION AND JOURNAL ENTRY

Dated: December 5, 2011



        CARR, Judge.

        {¶1}     Appellant, Rick Miller, appeals the judgment of the Medina County Court of

Common Pleas which granted a motion for relief from judgment pursuant to Civ.R. 60(B)(1) in

favor of appellee, Caitlin Culgan. This Court reverses.

                                                 I.

        {¶2}     This case has a lengthy procedural history which this Court has set out in great

detail in Culgan v. Miller, 9th Dist. No. 10CA0036-M, 2011-Ohio-4298, at ¶2-6 (“Culgan I”) as

follows:

        “In 2006, Mr. Culgan, Mrs. Culgan, and Caitlin (collectively ‘the Culgans’) filed
        a complaint against Bank One, N .A. and several John Doe defendants asserting
        that Bank One and its employees and the John Doe moving company and its
        employees ‘removed, damaged, lost, and stole and otherwise converted’ personal
        property of the Culgans during execution of a writ of possession in November
        2004. JP Morgan Chase Bank, N.A. (‘Chase’), as the successor by merger to Bank
        One, N.A., filed a motion for partial summary judgment. Chase asserted that,
        because Mr. and Mrs. Culgan had previously filed bankruptcy petitions
        representing that they had only $1600 of personal property, aside from cash and
        bank accounts, they should be estopped from claiming damages in excess of that
                                         2


amount as all the property alleged to be damaged was acquired prior to filing the
bankruptcy petition. Thus, Chase argued, it was entitled to summary judgment
with respect to all but $1600 of the alleged damages. The trial court agreed with
Chase, concluding that:

       ‘Chase is entitled to a partial summary judgment as reasonable
       minds can only conclude that the judicial estoppel doctrine applies.
       [T]he Culgans are estopped from pursuing a claim based on
       personal property loss or damage in excess of $1,600.00. They
       admitted that no personal property was acquired by them after their
       bankruptcy filings, and they listed in their schedules that the value
       of their personal property was $1,600.00. They are estopped from
       asserting otherwise.’

Thereafter, the trial court dismissed the John Doe defendants from the suit
without prejudice. The Culgans filed an amended complaint specifically naming
Mr. Miller as a defendant. The amended complaint was stricken. Subsequently,
the Culgans entered into a confidential settlement agreement with Chase, and the
Culgans dismissed all their claims against Chase with prejudice but reserved their
rights to sue Mr. Miller.

“The instant appeal concerns the subsequent complaints filed against Mr. Miller.
In one action, Mr. Culgan and Mrs. Culgan filed a complaint against Mr. Miller
individually and Mr. Culgan also asserted claims as trustee for the Caitlin R.
Culgan Children’s Trust (‘the Trust’). In a separate action, Caitlin filed a
complaint against Mr. Miller individually, and as beneficiary of the Trust. Both
actions were consolidated in 2008. In both complaints, the Culgans alleged that,
in November 2004, Mr. Miller, along with several John Doe defendants (who
were later dismissed from the suit), ‘damaged, destroyed, lost, stole, and/or
converted’ approximately one million dollars of the Culgans’ personal property
while they were executing a writ of possession on the Culgans’ former home,
which was previously foreclosed upon. The complaints sought damages in excess
of one million dollars, along with punitive damages.

“Mr. Miller moved to dismiss the John Doe defendants, to file a transcript of the
settlement proceedings with Chase under seal, to have the Culgans produce a
copy of the release and settlement agreement, subject to protective order, and to
transfer the trial court’s record in the action with Chase into the record of the
instant action. The trial court granted the motions. Mr. Miller moved for summary
judgment asserting that the Culgans were barred by judicial estoppel from
asserting claims for property not disclosed on the bankruptcy schedules, that the
claims were barred by the statute of limitations, that claims filed on behalf of the
trust should be dismissed, that the Culgans had been fully compensated by the
settlement with Chase, that their claims were barred by the doctrine of unclean
hands, and that Mr. Miller is entitled to judicial immunity and an award of
attorney fees. The Culgans responded in opposition. Mr. Miller filed a reply brief
                                                 3


       and a motion to strike the exhibits attached to the Culgans’ motion in opposition
       to Mr. Miller’s motion for summary judgment. The Culgans then filed affidavits
       apparently in response to Mr. Miller's motion to strike.

       “The trial court held that Mr. Miller was entitled to summary judgment against
       Mr. and Mrs. Culgan based upon the doctrine of judicial estoppel and because the
       Culgans ‘received more than the values claimed in the bankruptcy case in their
       settlement with Bank One.’ With respect to the Trust and Caitlin, who were not
       parties to the bankruptcy action, the trial court concluded that they failed to
       demonstrate a genuine issue of fact for trial. The trial court concluded that the
       exhibits attached to the Culgans’ motion in opposition were improper summary
       judgment evidence and, accordingly, could not be considered. The trial court went
       on to state that ‘[t]here are no affidavits or evidentiary material to establish the
       alleged trust, ownership of the personal property or claims against Miller for
       taking the property.’

       “The Culgans filed a collective notice of appeal, signed by each of them as
       individuals. There was no notice of appeal filed on behalf of the Trust. Mr. Miller
       filed a notice of cross-appeal. While the appeal was pending, the Culgans filed a
       motion to vacate pursuant to Civ.R. 60(B) in the trial court. The Culgans
       thereafter requested that we stay the proceedings and remand the matter to the
       trial court so that it could rule on their motion. We granted the request.”

       {¶3}    In Culgan I, we affirmed the trial court’s grant of summary judgment in favor of

Mr. Miller on the claims asserted by Caitlin and her parents. The Culgans filed a motion for

relief from judgment pursuant to Civ.R. 60(B), Mr. Miller responded in opposition, and the

Culgans replied. The trial court denied the Civ.R. 60(B) motion as to Mr. and Mrs. Culgan and

the trust, but it granted the motion to vacate summary judgment with respect to Caitlin’s personal

property. Mr. Miller filed a timely appeal, raising seven assignments of error for review. This

Court consolidates the first and second assignments of error to facilitate review.

                                                II.

                                 ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING A
       MOTION FOR RELIEF WHICH FAILED TO IDENTIFY WHICH PORTION
       OF [CIV.R.] 60(B) WAS BEING INVOKED.”

                                 ASSIGNMENT OF ERROR II
                                                 4


       “THE TRIAL COURT ABUSED ITS DISCRETION BY UNILATERALLY
       FINDING ITS OWN ACTION TO CONSTITUTE A ‘MISTAKE’ UNDER
       CIV.R. 60(B)(1).”

       {¶4}    Mr. Miller argues that the trial court abused its discretion by granting relief from

judgment because Caitlin failed to identify any grounds for relief. He further argues that the trial

court erred by granting relief from judgment upon finding that its own actions constituted

mistake pursuant to Civ.R. 60(B)(1). This Court agrees.

       {¶5}    The decision to grant or deny a motion for relief from judgment pursuant to

Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed absent an

abuse of the discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174. An abuse of discretion

is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. An abuse

of discretion demonstrates “perversity of will, passion, prejudice, partiality, or moral

delinquency.” Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. When applying the

abuse of discretion standard, this Court may not substitute its judgment for that of the trial court.

Id.

       {¶6}    Civ.R. 60(B) states, in relevant 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, 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.”
                                                 5


       {¶7}     To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party

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. (1976), 47 Ohio St.2d 146, paragraph two of the syllabus.

       {¶8}     “The requirements of Civ.R. 60(B) are stated in the conjunctive; if one of the

requirements [is] not met, relief from judgment cannot be granted.” Wolotsky v. Portage Path

Community Mental Health Ctr. (Apr. 12, 1995), 9th Dist. No. 16827, citing Strack, 70 Ohio

St.3d at 174.

       {¶9}     After the trial court issued its final judgment on the motion for summary

judgment, but before the Culgans filed a Civ.R. 60(B) motion, they filed a motion for

reconsideration.    “The Ohio Rules of Civil Procedure do not prescribe motions for

reconsideration after a final judgment in the trial court.” Pitts v. Ohio Dept. of Transp. (1981),

67 Ohio St.2d 378, paragraph one of the syllabus. Accordingly, “motions for reconsideration of

a final judgment in the trial court are a nullity.” Id. at 379. In her motion for relief from

judgment, Caitlin wrote that she was incorporating by reference the arguments set forth in the

motion for reconsideration. Despite the fact that a motion for reconsideration is a nullity, to the

extent that Caitlin’s arguments in the motion for reconsideration might have been properly

before the trial court for consideration, she nevertheless failed to cite to Civ.R. 60(B) at all, let

alone any specific grounds for relief under that rule. This Court has repeatedly recognized that

the “failure to identify which portion of Civ.R. 60(B) is being invoked is fatal to a Civ.R. 60(B)

motion because the second prong of GTE is not satisfied. See Sales v. Long (Jan. 22, 1997), 9th

Dist. No. 17825. ‘Neither the responding party nor the court can be expected to divine the
                                                 6


[specific] grounds under which the movant seeks relief.’ Black v. Harris (Dec. 30, 1994), 2d

Dist. No. 14583.” Rhodes v. Rhodes (Nov. 7, 2001), 9th Dist. No. 20512. Accordingly,

assuming arguendo that the motion for reconsideration was properly before the trial court for

consideration, the incorporation of any arguments therein failed to provide specific grounds in

support of the Civ.R. 60(B) motion and, therefore, failed to satisfy the second prong of the GTE

test.

        {¶10} In her motion for relief from judgment, Caitlin quoted Civ.R. 60(B) “in

pertin[ent] part,” solely in regard to subsections (1), (3), and (5).       One could, therefore,

reasonably conclude that she would argue that relief was warranted on the grounds of mistake,

inadvertence, surprise, excusable neglect, fraud, misrepresentation or other misconduct of an

adverse party, or some unusual and extreme reason justifying relief from the judgment. The vast

majority of her argument, however, focused on Mr. Miller’s alleged failure to meet his burden of

proof in support of his motion for summary judgment. That argument fails to support any of the

above-referenced grounds for relief.

        {¶11} Caitlin’s only other argument is that the trial court had the discretion to consider

the affidavits she filed after the court granted summary judgment in favor of Mr. Miller because

she had served the affidavits on the opposing party. Caitlin failed to explain, however, how this

discretion imbued on the trial court gave rise to any of the above-referenced grounds for relief.

In her reply in support of her Civ.R. 60(B) motion, Caitlin asserted that she would have timely

filed affidavits in support of her opposition to the motion for summary judgment had she been

aware of a hearing date on the motion. She then concluded that the trial court “has the authority

to consider [the] affidavits” “in the interest of justice.” Again, she failed to invoke any specific

grounds pursuant to Civ.R. 60(B) in support of her motion for relief from judgment. By failing
                                                 7


to invoke specific grounds or present any arguments in support of relief pursuant to Civ.R.

60(B)(1), (3), or (5), Caitlin failed to meet the second prong of the GTE test. See Broyles v.

Summa Health Sys., 9th Dist. No. 22278, 2005-Ohio-3107, at ¶16.

       {¶12} The trial court nevertheless granted the motion for relief from judgment in

Caitlin’s favor on the grounds of its own mistake, purportedly pursuant to Civ.R. 60(B)(1), due

to its failure to schedule a hearing on the motion for summary judgment. Many appellate courts

have determined that “a factual or legal mistake on the part of the trial court is not the type of

mistake contemplated by Civ.R. 60(B)(1).” Hankinson v. Hankinson, 7th Dist. No. 03 MA 7,

2004-Ohio-2480, at ¶20, citing Gold Touch, Inc. v. TJS Lab., Inc. (1998), 130 Ohio App.3d 106,

110-111 (where the 8th District said that failure to consider a brief is not the type of mistake

contemplated by 60(B)); Peltz v. Peltz (June 27, 1997), 11th Dist. No. 96-G-2026; Carrabine v.

Brown (Aug. 13, 1993), 11th Dist. No. 92-G-1736. See, also, Melinich v. Melinich, 2d Dist. No.

24399, 2011-Ohio-5068, at ¶22; In re Adoption of A.N.L., 12th Dist. Nos. CA2004-11-131,

CA2005-04-046, 2005-Ohio-4239, at ¶26; Karpanty v. Scheer (June 6, 1986), 6th Dist. No. L-

86-020 (“The ‘mistake’ that Civ.R. 60(B)(1) speaks to is a mistake of a party or others, such as a

party’s agents. The proper procedure to be utilized where a party claims that a judgment is based

on a trial court’s mistake of law and/or fact is an appeal and it is improper to use Civ.R. 60(B) as

a substitute for such appeal.”) While this Court has not expressly enunciated the rule, we have

implicitly recognized its application. See, e.g., Nelson v. Angley, 9th Dist. No. 24390, 2009-

Ohio-1050, at ¶13 (holding that the allegation in a Civ.R. 60(B) motion merely that the trial court

made a mistake “was not a proper basis for relief under Civ.R. 60(B) because it was nothing

more than an attempt to substitute the motion for an appeal.”); Sabini v. Thrower (July 14, 1993),
                                                 8


9th Dist. No. 15930 (stating that “a ‘mistake’ in the court’s application of the law is not the sort

of ‘mistake’ which entitles one to relief under Civ.R. 60(B)(1).”).

       {¶13} This Court does not here make any determination regarding the trial court’s

application of what it believed to be the current local court rule regarding motions for summary

judgment. Nevertheless, the trial court’s failure to comport with a local rule requiring the

scheduling of a hearing on a motion for summary judgment would constitute mistake on the part

of the trial court rather than a party and, therefore, not the type of “mistake” contemplated by

Civ.R. 60(B)(1) to merit relief from judgment. Instead, any such mistake by the trial court would

constitute error from which the aggrieved party must appeal. We have repeatedly held that

“Civ.R. 60(B) may not be used as a substitute for appeal.” DaimlerChrysler Fin. Servs. N. Am.

v. Hursell, 9th Dist. No. 24815, 2011-Ohio-571, at ¶17, quoting Doe v. Trumbull Cty. Children

Servs. Bd. (1986), 28 Ohio St.3d 128, 131. Moreover, “[e]rrors that could have been corrected

by a timely appeal cannot be the predicate for a motion for relief from judgment.” Hursell at

¶17, quoting Murphy-Kesling v. Kesling, 9th Dist. No. 24176, 2009-Ohio-2560, at ¶15. Caitlin

should have properly raised the issue of the trial court’s failure to consider her timely filed

affidavits in opposition to Mr. Miller’s motion for summary judgment based on the court’s

failure to comply with a local rule requiring the scheduling of a hearing on the motion in a direct

appeal from the order granting summary judgment. She could not properly raise that issue in a

Civ.R. 60(B) motion based on grounds of mistake. Accordingly, the trial court abused its

discretion when it granted her motion for relief from judgment pursuant to Civ.R. 60(B)(1).

       {¶14} Mr. Miller’s first and second assignments of error are sustained.

                                ASSIGNMENT OF ERROR III

       “THE TRIAL COURT ABUSED ITS DISCRETION BY RELYING ON AN
       INCORRECT OR OUTDATED LOCAL RULE.”
                                               9


                                ASSIGNMENT OF ERROR IV

       “THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING A
       ‘MISTAKE’ WHEN ANY ‘MISTAKE’ WAS WAIVED OR INVITED.”

                                ASSIGNMENT OF ERROR V

       “THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING A
       MOTION FOR RELIEF WITHOUT BOTH FINDING AND EXPLAINING ITS
       REASONS FOR FINDING A MERITORIOUS CLAIM.”

                                ASSIGNMENT OF ERROR VI

       “THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING A
       MOTION FOR RELIEF WHERE THE EVIDENCE DID NOT
       DEMONSTRATE A MERITORIOUS CLAIM.”

                                  ASSIGNMENT OF ERROR VII

       “THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING RELIEF
       WHEN CAITLIN CULGAN’S CLAIMS ARE BARRED BY COLLATERAL
       ESTOPPEL.”

       {¶15} Because this Court’s resolution of the first and second assignments of error is

dispositive, we decline to address the remaining assignments of error as they have been rendered

moot. See App.R. 12(A)(1)(c).

                                              III.

       {¶16} Mr. Miller’s first and second assignments of error are sustained. We decline to

address his remaining assignments of error. The judgment of the Medina County Court of

Common Pleas is reversed, and the cause remanded for further proceedings consistent with this

opinion.

                                                                            Judgment reversed,
                                                                           and cause remanded.




       There were reasonable grounds for this appeal.
                                                10


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

Pleas, County of Medina, 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.

       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(E). 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 Appellees.




                                                     DONNA J. CARR
                                                     FOR THE COURT




MOORE, J.
CONCURS

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY


APPEARANCES:

KURT D. ANDERSON and AUDREY K. BENTZ, Attorneys at Law, for Appellants.

CLIFFORD J. CULGAN, REBECCA CULGAN, and CAITLIN R. CULGAN, pro se,
Appellees.
