[Cite as United Bank v. Lemon, 2018-Ohio-634.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                            CRAWFORD COUNTY




UNITED BANK,
                                                        CASE NO. 3-17-17
       PLAINTIFF-APPELLEE,

      v.

RODNEY G. LEMON,                                        OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Crawford County Municipal Court
                           Trial Court No. CVF1300987

                                    Judgment Affirmed

                          Date of Decision: February 20, 2018



APPEARANCES:

        Rodney G. Lemon, Appellant

        James W. Pry II for Appellee
Case No. 3-17-17


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Rodney G. Lemon (“Mr. Lemon”) appeals the

judgment of the Crawford County Municipal Court for denying his post-judgment

motion. For the reasons set forth below, the judgment of the lower court is affirmed.

                           Facts and Procedural History

       {¶2} On September 27, 2013, United Bank filed a complaint in the Crawford

County Municipal Court, alleging that Mr. Lemon failed to make payments on a

note and that Mr. Lemon’s vehicle was security for this note. Doc. 1. United Bank

was seeking to repossess this vehicle. Doc. 1. Mr. Lemon filed his answer on

October 17, 2013. Doc. 5. On January 21, 2014, United Bank filed a motion for

summary judgment. Doc. 13. Mr. Lemon filed a response to United Bank’s motion

for summary judgment on January 27, 2014. Doc. 14. On February 13, 2014, the

trial court granted United Bank’s motion for summary judgment. Doc. 15.

       {¶3} Mr. Lemon did not appeal the February 13, 2014 judgment of the trial

court. Over three years later, on October 5, 2017, Mr. Lemon submitted a document

with the trial court that alleged he had obtained new evidence. Doc. 20. The trial

court construed this document as a Civ.R. 60(B) motion. Doc. 21. The trial court

found that this motion was not timely filed, did not present new evidence, and made

arguments that Mr. Lemon could have made during the original litigation. Doc. 21.

For these reasons, the trial court denied his Civ.R. 60(B) motion. Doc. 21.

       {¶4} On November 17, 2017, Mr. Lemon filed notice of appeal. Doc. 22.

On appeal, he raises the following five assignments of error:
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                           First Assignment of Error

      The trial court committed prejudicial error in stating that the new
      evidence should have been given in first hearing when bank had
      withheld it from me and the court.

                         Second Assignment of Error

      Second assignment of error was the paper work of the bank
      showed the bank tampered with evidence by withholding
      documents that would show the payments made right up until
      bank filed to repo for not making payments in months.

                          Third Assignment of Error

      Not looking at the new evidence and seeing the payment were
      made and the bank and their counsel had put one over on him.

                          Fourth Assignment of Error

      Fourth assignment of error was not looking into 145.56 tax
      exemptions that shows my pension check is exempt after it is put
      into my checking.

                           Fifth Assignment of Error

      Fifth assignment of error was not seeing that the bank stole money
      from an exempt checking as well as stole the car and sold it. This
      by the bank withholding evidence from the court that would be
      tampering with [evidence].

We will with address Mr. Lemon’s first assignment of error before we address his

remaining assignments of error together.

                            First Assignment of Error

      {¶5} In his first assignment of error, appellant alleges that he presented the

trial court with new evidence in the document he filed on October 5, 2017. The




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appellant argues that the trial court committed prejudicial error in denying his

motion.

                                 Legal Standard

      {¶6} “A trial court has the authority to construe an improperly captioned

post-judgment motion as though it were a Civ.R. 60(B) motion for relief from

judgment.” Ohio State Aerie Fraternal Order of Eagles v. Alsip, 12th Dist. Butler

No. CA2013-05-079, 2013-Ohio-4866, ¶ 18. Wank v. Wank, 3d Dist. Paulding No.

11-15-03, 2015-Ohio-3094, ¶ 20. Civ.R. 60(B) reads as follows:

      (B) 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.

Civ.R. 60(B).

      In order to prevail on a motion brought pursuant to Civ.R. 60(B),
      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, and, where the grounds of relief are Civ.R.

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Case No. 3-17-17


       60(B)(1), (2), or (3), not more than one year after the judgment,
       order, or proceeding was entered or taken.

Kerr Bldgs., Ind. v. Bishop, 3d Dist. Henry No. 7-14-07, 2014-Ohio-5391, ¶ 15,

citing GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351

N.E.2d 113 (1976), paragraph two of the syllabus. If the petitioner fails to establish

one of these three factors, the petitioner cannot prevail on the Civ.R. 60(B) motion.

Bish Constr., Inc. v. Wickham, 3d Dist. Seneca No. 13-12-16, 2013-Ohio-421, ¶ 15

(holding “[t]hese requirements are independent and in the conjunctive; thus the test

is not fulfilled if any one of the requirements is not met.”).

       {¶7} “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 discretion.” Glessner v. Select Genetics L.L.C., 3d

Dist. Mercer No. 10-15-12, 2016-Ohio-532, ¶ 12, citing Strack v. Pelton, 70 Ohio

St.3d 172, 174, 637 N.E.2d 914 (1994). “An abuse of discretion is more than an

error of judgment; rather, it implies that the trial court’s decision was unreasonable,

arbitrary, or capricious.” Schroeder v. Niese, 2016-Ohio-8397, 78 N.E.3d 339, ¶ 7

(3d Dist.), quoting Heilman v. Heilman, 3d Dist. Hardin No. 6-12-08, 2012-Ohio-

5133, ¶ 14. “When applying the abuse of discretion standard of review, this court

is not free merely to substitute its judgment for that of the trial court.” Worden v.

Worden, 3d Dist. Marion No. 9-16-54, 2017-Ohio-8019, ¶ 26, quoting Kreitzer v.

Anderson, 157 Ohio App.3d 434, 2004-Ohio-3024, 811 N.E.2d 607, ¶ 16 (3d Dist.).




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                                    Legal Analysis

       {¶8} In this case, the trial court construed the appellant’s filing as a Civ.R.

60(B) motion. Doc. 21. The trial court also found that the appellant’s filing did not

meet the criteria necessary to prevail on a Civ.R. 60(B). Doc. 21. The trial court

found that this motion was not timely filed in accordance with Civ.R. 60(B). Doc.

21. Under the Ohio Rules of Civil Procedure, a Civ.R. 60(B) motion that purports

to have found new evidence must be submitted within one year of the final judgment

of the trial court. Civ.R. 60(B).

       {¶9} In this case, the trial court’s final judgment in the original action came

on February 13, 2014. Doc. 15. Appellant submitted his 60(B) motion on October

5, 2017. Doc. 20. This motion purported to have new evidence relating to the

original action. Doc. 20. However, this motion was filed which was more than

three years after the final judgment. Doc. 20. Thus, appellant’s motion was not

timely filed. Since the appellant did not meet the filing requirements of Civ.R.

60(B), we find that the trial court did not abuse its discretion in denying his motion.

       {¶10} We also note that arguments raised in the appellant’s motion could

have been raised in the original action before the trial court granted United Bank’s

motion for summary judgment. Doc. 20. Ultimately, the proper remedy for the

issues raised in appellant’s filing of October 5, 2017, was a direct appeal of the

initial judgment. However, the record shows that the appellant did not file an appeal

of the trial court’s judgment of February 13, 2014, and, in so doing, failed to

properly and timely pursue this matter further. Bank of Am., N.A. v. Kuchta, 141
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Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 16 (holding “[i]t is well

established that a Civ.R. 60(B) motion cannot be used as a substitute for an appeal

and that the doctrine of res judicata applies to such a motion.”). Thus, the appellant

denied himself the opportunity to raise these arguments in this Court when he chose

not to appeal the trial court’s grant of summary judgment of February 13, 2014. For

these reasons, we overrule appellant’s first assignment of error.

                         Remaining Assignments of Error

       {¶11} Since we have found that the trial court did not err in denying

appellant’s filing, the remaining assignments of error are moot as each of these

assignments of error present an issue that could have been raised on direct appeal

from the trial court’s final judgment of February 13, 2014. For this reason, this

Court declines to address the merits of these arguments pursuant to App.R.

12(A)(1)(c).

                                     Conclusion

       {¶12} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of Crawford County Municipal Court is

affirmed.

                                                                 Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/hls




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