      [Cite as McCarthy v. Sterling Chems., Inc., 2016-Ohio-1039.]
              IN THE COURT OF APPEALS
          FIRST APPELLATE DISTRICT OF OHIO
               HAMILTON COUNTY, OHIO



PATRICK        B.    MCCARTHY,   an :                     APPEAL NO. C-150274
incompetent, by and through his duly                      TRIAL NO. A-0509144
appointed guardians, Michael B. :
McCarthy and Nancy M. McCarthy,
                                     :                         O P I N I O N.
MARK COLLIN FUGATE,
                                     :
   and
                                     :
PATRICIA SUSAN MCCARTHY,
                                     :
    Plaintiffs-Appellants,
                                     :
  vs.
                                     :
STERLING CHEMICALS, INC.,
                                     :
  and
                                     :
RESCAR, INC.,

   Defendants-Appellees.                       :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 16, 2016

Markovits, Stock, & DeMarco, LLC, Paul M. DeMarco, W.B. Markovits, Christopher
D. Stock, Joseph T. Deters and Terence R. Coates for Plaintiffs-Appellants,

Vorys, Sater, Seymour & Pease, LLP, and Robert E. Tait, and Mills Shirley, LLP, Jack
C. Brock and Fred D. Raschke, for Defendant-Appellee Sterling Chemicals, Inc.,

Katz, Teller, Brant & Hild and Robert A. Pitcairn, Matthew A. Rich and Peter J.
O’Shea, and Mannion & Gray Co., L.P.A., Thomas P. Mannion and Judd R. Uhl, for
Defendant-Appellee Rescar, Inc.

Please note: this case has been removed from the accelerated calendar.
                         OHIO FIRST DISTRICT COURT OF APPEALS



S TAUTBERG , Judge.

       {¶1}   Plaintiffs-appellants Patrick B. McCarthy, by and through his duly

appointed guardians, Michael B. McCarthy and Nancy M. McCarthy, Mark Collin

Fugate, and Patricia Susan McCarthy (“plaintiffs”) appeal the trial court’s judgment

denying their Civ.R. 60(B) motion for relief from judgment. We affirm.

                  Background of Traumatic Injury and Trial

       {¶2}   This case has a long and protracted history. In 2005, Patrick McCarthy

was severely injured on the job while transferring liquid from a pressurized railroad

tank car owned by defendant-appellee Sterling Chemicals, Inc., (“Sterling”) into a

storage tank owned by his employer, Kinder Morgan Liquids Terminals, LLC. While

McCarthy was standing on top of the tank car, the manway assembly separated from

the car, striking McCarthy and knocking him 15 feet to the ground. McCarthy suffered

physical injuries, including a permanent, traumatic brain injury. McCarthy and his

two minor children sued numerous defendants including Sterling, defendant-appellee

Rescar, Inc., which was under contract with Sterling to maintain its fleet of railcars,

and ACF Industries, LLC., (“ACF”), the manufacturer of the railcar.

       {¶3}   The case proceeded to a jury trial. After plaintiffs presented their case-

in-chief, the trial court granted a directed verdict in favor of ACF, finding that there

was a material alteration of the railcar that relieved ACF of liability as a manufacturer.

With the absence of ACF from the trial, plaintiffs urged the trial court to give an

explanatory instruction to the jury regarding the party’s absence. The trial court did

not give the instruction requested by plaintiffs. At the conclusion of trial, the jury

unanimously found in favor of the remaining defendants, Sterling and Rescar.




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       {¶4}   Plaintiffs then moved for a new trial on several grounds, including that

the judge had not fully explained to the jury the reason ACF had been directed out of

the case (the “ACF argument”), and that the failure to do so could have resulted in jury

confusion. The trial court granted plaintiffs’ motion on the basis of confusing jury

instructions relating to the duty owed to McCarthy under common law, and the

interplay of duties that arose out of the statutes and regulations that govern railcars.

The trial court did not address the ACF argument in its decision.

                               McCarthy I and Its Aftermath

       {¶5}   Sterling and Rescar appealed the trial court’s judgment granting a new

trial. In that appeal, McCarthy I, this court found no error in the jury instructions and

no evidence of juror confusion. See McCarthy v. Sterling, 193 Ohio App.3d 164, 2011-

Ohio-887, 951 N.E.2d 441 (1st Dist.) (“McCarthy I”). We reversed the judgment of the

trial court and remanded the cause with the instruction that the trial court reinstate

the defense verdict. The trial court carried out this court’s mandate.

       {¶6}   Thereafter, plaintiffs filed a “cautionary appeal,” and Rescar cross-

appealed. While those appeals were pending, plaintiffs again moved the trial court for

a new trial, raising the ACF argument for the second time. We subsequently remanded

the cause under App.R. 4(B)(2) to the trial court for it to rule on that motion. Both

appeals were then voluntarily dismissed.

       {¶7}   The trial court granted plaintiffs’ second motion for a new trial on the

basis of the ACF argument.      It found that at trial the court had not adequately

explained its directed-verdict ruling to the jury, and that the jury could have been

confused about why ACF was no longer in the case. Sterling and Rescar appealed from

that judgment.




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                           OHIO FIRST DISTRICT COURT OF APPEALS



                            McCarthy II and Another Remand

       {¶8}    In McCarthy II, we reversed the trial court’s judgment granting

plaintiffs a new trial. In pertinent part, this court held that the original trial court had

effectively denied the ACF argument as a ground for a new trial, making the issue fully

reviewable in McCarthy I in a cross-assignment of error pursuant to R.C. 2505.22.

McCarthy v. Sterling, 1st Dist. Hamilton Nos. C-11805 and C-110856, 2012-Ohio-5211,

¶ 15 (“McCarthy II”).      Because plaintiffs had failed to do so, the merits of ACF

argument had been waived, and the trial court had been without authority to grant a

new trial on that basis. Id. at ¶ 16.

       {¶9}    The cause was remanded, and the trial court again reinstated the

defense verdict. Plaintiffs then immediately moved the trial court for relief from that

judgment under Civ.R. 60(B)(1), claiming, in part, that counsel’s failure to raise the

ACF argument in McCarthy I constituted “excusable neglect.” The trial court overruled

plaintiffs’ motion. It found that the issues raised in the motion had already been

addressed by this court, and that the trial court was bound by the law-of-the-case

doctrine. Plaintiffs now appeal from that judgment.

                                        The Present Appeal

       {¶10} In their sole assignment of error, plaintiffs claim that the trial court

erred in denying their Civ.R. 60(B)(1) motion based on the law-of-the-case doctrine

because the “excusable neglect” issue had not been determined in McCarthy II. We

review the trial court’s judgment for an abuse of discretion. See Griffey v. Rajan, 33

Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987).

       {¶11} 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



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                         OHIO FIRST DISTRICT COURT OF APPEALS



(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 Electric v. ARC Industries, 47

Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. Here, plaintiffs

proceeded under Civ.R. 60(B)(1), which allows a court to grant relief from a judgment

on the grounds of “mistake, inadvertence, surprise or excusable neglect.”

       {¶12} Plaintiffs correctly point out that this court had not addressed the issue

of counsel’s “excusable neglect” in either McCarthy I or McCarthy II. Plaintiffs further

argue that their motion was timely and contend that they would have a meritorious

claim to present if relief were granted. Plaintiffs’ argument fails, overall, because they

are again attempting to revive the ACF argument—an argument that could have been

raised in McCarthy I.

            Civ.R. 60(B) is not a Substitute for a Direct Appeal

       {¶13} It is well-settled that a Civ.R. 60(B) motion cannot be used as a

substitute for a direct appeal. Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d

128, 502 N.E.2d 605 (1986), paragraph two of the syllabus; Kids Bop LLC. v.

Broadhead, 1st Dist. Hamilton No. C-140686, 2015-Ohio-3744, ¶ 17; Internatl. Lottery

v. Kerouac, 102 Ohio App.3d 660, 668, 657 N.E.2d 820 (1st Dist.1995). In other

words, a Civ.R. 60(B) motion provides a means to collaterally attack a judgment.

Kerouac. The rule does not contemplate a direct attack on legal errors allegedly made

by the trial court. Levy v. Levy, 8th Dist. Cuyahoga No. 103002, 2016-Ohio-207, ¶ 20.

See Tokar v. Tokar, 8th Dist. Cuyahoga No. 93506, 2010-Ohio-524, ¶ 10 (“[M]ovant

must allege new grounds for Civ.R. 60(B) relief; he may not use the arguments he lost

under the judgment to justify relief from the judgment.”).




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                          OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} Plaintiffs’ failure to raise the ACF argument on direct appeal cannot

form the basis of the “excusable neglect” requirement under Civ.R. 60(B)(1) without

eviscerating the well-established rule that a Civ.R. 60(B) motion is not a substitute for

a direct appeal. Further, plaintiffs contend that had they raised the ACF argument on

appeal, they likely would have prevailed. This argument clearly constitutes a direct

attack on the proceedings before the trial court and is therefore an inappropriate basis

for granting Civ.R. 60(B) relief.

       {¶15} While the trial court’s decision was not couched specifically in these

terms, it nevertheless came to the correct conclusion that the ACF argument could not

be revived though a Civ.R. 60(B) motion. We hold that the trial court did not abuse its

discretion in overruling plaintiffs’ Civ.R. 60(B) motion. See Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶16} Plaintiffs’ sole assignment of error is overruled. The trial court’s

judgment is affirmed.


                                                                     Judgment affirmed.


FISCHER, P.J., and MOCK, J., concur.


Please note:
       The court has recorded its own entry this date.




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