[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Jackson v. Ohio Adult Parole Auth., Slip Opinion No. 2014-Ohio-2353.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-2353
      THE STATE EX REL. JACKSON, APPELLANT, v. OHIO ADULT PAROLE
                           AUTHORITY ET AL., APPELLEES.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
       it may be cited as State ex rel. Jackson v. Ohio Adult Parole Auth.,
                         Slip Opinion No. 2014-Ohio-2353.]
Mandamus—Civ.R. 60(B)—Relief from judgment—Civ.R. 41(A)(1)—Double-
        dismissal rule—Negligence of relator’s attorney in voluntarily dismissing
        complaint for second time, thereby destroying relator’s ability to refile, is
        inexcusable neglect and is attributable to relator—Court of appeals did
        not abuse its discretion in denying Civ.R. 60(B) relief.
    (No. 2013-0693—Submitted December 10, 2013—Decided June 5, 2014.)
     APPEAL from the Court of Appeals for Franklin County, No. 12AP-675.
                                  ________________
        Per Curiam.
        {¶ 1} Appellant, Sonya R. Jackson, appeals the decision of the Tenth
District Court of Appeals denying her motions for relief from judgment and for
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leave to file an amended complaint in mandamus. For the reasons set forth below,
we affirm the judgment of the court of appeals.
Background
       {¶ 2} The history of this case begins with the filing of a pro se
declaratory-judgment action against the members of the parole board in Cuyahoga
Common Pleas Court. Jackson v. Mauser, Cuyahoga C.P. No. CV-12-773475
(“Jackson I”).    In that suit, Jackson argued that the parole board, in its
consideration of her parole request, disregarded a binding mandate from the
governor. On March 21, 2012, Jackson filed a Civ.R. 41(A) notice of voluntary
dismissal.
       {¶ 3} On August 15, 2012, Jackson, now represented by Assistant State
Public Defender Dennis Pusateri, filed a complaint for a writ of mandamus in the
Tenth District Court of Appeals against respondents, Ohio Adult Parole Authority
and the Ohio Parole Board. State ex rel. Jackson v. Ohio Adult Parole Auth., 10th
Dist. Franklin No. 12AP-675 (“Jackson II”). In that complaint, she made the
following allegations:
       {¶ 4} (1) Jackson was sentenced to prison for a term of 20 years to life.
In November 2009, after she had served 11 years of her sentence, Governor
Strickland commuted her sentence to 12 years to life.           The warrant of
commutation made Jackson eligible for parole and directed the parole board to
release her “when the Board determines that she is prepared to integrate
successfully into society.”
       {¶ 5} (2) The parole board conducted a hearing on January 7, 2010. The
board declined to release Jackson and continued consideration of her parole until
she completed the original minimum sentence of 20 years “in order to not demean
the serious nature of the crime.”




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                                January Term, 2014




       {¶ 6} (3) By basing its decision on the seriousness of the offense, rather
than her ability to reintegrate into society, the board disregarded its legal mandate
from the governor.
       {¶ 7} Upon review of the complaint, a magistrate recommended
dismissal, on the ground that the affidavit listing prior actions attached to the
complaint named four such actions but described only one, thereby failing to
comply with R.C. 2969.25(A).
       {¶ 8} Faced with the magistrate’s recommendation, Pusateri decided that
rather than fight the dismissal, he would simply allow the court to dismiss the
action and then refile the complaint.
       {¶ 9} Pusateri did not receive the necessary affidavits back from Jackson
until October 31, 2012.      During the two months between the magistrate’s
recommendation and Pusateri’s receipt of the executed affidavits, a notion
“erroneously settled into [his] head” that the court had dismissed Jackson II, even
though he had never received an entry of dismissal. He therefore filed a new
mandamus petition on November 1, 2012, State ex rel. Jackson v. Ohio Adult
Parole Auth., 10th Dist. Franklin No. 12AP-938 (“Jackson III”).
       {¶ 10} On December 3, 2012, the respondents filed a motion to stay
Jackson III because Jackson II, which raised the same issues, was still pending,
despite the magistrate’s recommendation.
       {¶ 11} Rather than move to amend the Jackson II complaint, Pusateri
elected to dismiss Jackson II voluntarily and proceed under the complaint in
Jackson III, as that course of action was “simpler,” presumably because the
complaint in that case already had the necessary affidavits attached.
       {¶ 12} Respondents then moved for summary judgment in Jackson III on
the ground that the voluntary dismissal of Jackson II triggered the “double
dismissal” rule, by which a second voluntary dismissal under Civ.R. 41(A)




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becomes a final judgment on the merits. The court of appeals agreed and granted
summary judgment in favor of the board in Jackson III on June 28, 2013.
       {¶ 13} In response, Pusateri filed a Civ.R. 60(B) motion for relief from
the judgment of dismissal in Jackson II, arguing that the voluntary dismissal was
the product of “excusable neglect.”       He supported the motion with his own
affidavit, in which he conceded that he was aware of Jackson’s pro se declaratory-
judgment action and of her voluntary dismissal of that action. “It did not occur
me [sic] that it could be argued that my client’s pro se declaratory judgment
action * * *, referred to in an affidavit of prior action attached to the complaint in
[Jackson III], was a voluntary dismissal that could trigger the ‘double dismissal’
rule contained in Civ.R. 41(A).”
       {¶ 14} “I was negligent,” he concluded, “for inadvertently failing to
connect the dots between my voluntary dismissal of [Jackson II] and my client’s
voluntary dismissal of her pro se declaratory judgment case.” He also filed a
motion for leave to amend the Jackson II complaint in order to attach the omitted
affidavits. The court of appeals denied the motions on March 19, 2013.
       {¶ 15} Jackson appealed Jackson II to this court. The matter has been
fully briefed and is ripe for adjudication.
Legal analysis
       {¶ 16} The “double dismissal” rule is set forth in Civ.R. 41(A)(1): “a
notice of dismissal operates as an adjudication upon the merits of any claim that
the plaintiff has once dismissed in any court.” The second voluntary dismissal is
thus with prejudice, and res judicata will bar the filing of a third action. State ex
rel. Dillard Dept. Stores v. Ryan, 122 Ohio St.3d 241, 2009-Ohio-2683, 910
N.E.2d 438, ¶ 13; Olynyk v. Scoles, 114 Ohio St.3d 56, 2007-Ohio-2878, 868
N.E.2d 254, ¶ 8.
       {¶ 17} Jackson twice voluntarily invoked Civ.R. 41(A) to dismiss her
case. The second dismissal was thus with prejudice, and res judicata barred the




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new complaint in Jackson III. Her only remaining avenue, therefore, was to
persuade the court to vacate the final judgment in Jackson II.
       {¶ 18} To prevail on a Civ.R. 60(B) motion for relief from judgment, a
movant must demonstrate (1) a meritorious claim or defense in the event relief is
granted, (2) entitlement to relief under one of the provisions of Civ.R. 60(B)(1)
through (5), and (3) timeliness of the motion. Strack v. Pelton, 70 Ohio St.3d
172, 174, 637 N.E.2d 914 (1994). The timeliness of Jackson’s motion is not in
dispute.
       {¶ 19} Civ.R. 60(B) provides that “[o]n motion and upon such terms as
are just, the court may relieve a party * * * from a final judgment, order or
proceeding for the following reasons: (1) mistake, inadvertence, surprise or
excusable neglect * * *.”       To determine whether neglect is excusable or
inexcusable, a court must consider all the surrounding facts and circumstances.
Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564 (1988).
Pusateri’s decision to dismiss Jackson II, rather than seek leave to amend the
complaint, certainly qualifies as neglect.    See Marion Prod. Credit Assn. v.
Cochran, 40 Ohio St.3d 265, 271, 533 N.E.2d 325 (1988) (failure to file reply to
counterclaim due to an oversight “clearly * * * amounts to an admission of
neglect”).
       {¶ 20} The issue before the court of appeals was whether Pusateri’s
conduct qualified as excusable neglect, within the meaning of Civ.R. 60(B)(1).
The court of appeals concluded that it did not.
       {¶ 21} An appellate court reviews a decision on a Civ.R. 60(B) motion for
abuse of discretion. Rose Chevrolet at 21. We apply this same standard when, as
in this case, we are acting as a first-level appellate court reviewing a case
originating in the court of appeals. State ex rel. Richard v. Seidner, 76 Ohio St.3d
149, 151, 666 N.E.2d 1134 (1996).




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       {¶ 22} The abuse-of-discretion standard extends to the question whether a
movant has demonstrated excusable neglect. See Peter M. Klein Co. v. Dawson,
10th Dist. Franklin No. 10AP-1122, 2011-Ohio-2812, ¶ 11-12.


       The [trial] court’s discretion to determine whether excusable
       neglect exists “necessarily connotes a wide latitude of freedom of
       action * * * and a broad range of more or less tangible or
       quantifiable factors may enter into the trial court’s determination.
       Simply put, two trial courts could reach opposite results on roughly
       similar facts and neither be guilty of an abuse of discretion.”


Id. at ¶ 11, quoting McGee v. C & S Lounge, 108 Ohio App.3d 656, 661, 671
N.E.2d 589 (10th Dist.1996).
       {¶ 23} We have defined excusable neglect in the negative: a defendant’s
inaction is not excusable neglect if it can be deemed a “ ‘complete disregard for
the judicial system.’ ” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665
N.E.2d 1102 (1996), quoting GTE Automatic Elec., Inc. v. ARC Industries, Inc.,
47 Ohio St.2d 146, 153, 351 N.E.2d 113 (1976).
       {¶ 24} A represented party bears a greater burden to show excusable
neglect.   “[A]ttorney conduct falling ‘substantially below what is reasonable
under the circumstances’ constitutes inexcusable neglect.” Hai v. Flower Hosp.,
6th Dist. Lucas No. L-07-1423, 2008-Ohio-5295, ¶ 21, quoting GTE at 152; see
also Moore v. Emmanuel Family Training Ctr., Inc., 18 Ohio St.3d 64, 68, 479
N.E.2d 879 (1985) (the phrase “substantially below what is reasonable under the
circumstances” in GTE is “additional guidance as to when conduct is excusable”).
       {¶ 25} Thus, attorney Pusateri’s conduct is inexcusable if it can be labeled
a complete disregard for the judicial system or if the conduct falls substantially
below what was reasonable under the circumstances. See, e.g., France v. France,




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                                January Term, 2014




8th Dist. Cuyahoga Nos. 95629 and 95729, 2011-Ohio-2402, ¶ 21; Engle v.
Rostami, 2d Dist. Montgomery No. 23914, 2011-Ohio-878, ¶ 10; Heard v.
DuBose, 1st Dist. Hamilton No. C-060265, 2007-Ohio-551, ¶ 19.
       {¶ 26} Pusateri admitted two mistakes: assuming that this case had
already been dismissed and failing to recall that one of his client’s prior filings
was a declaratory-judgment action raising similar claims.
       {¶ 27} As to the first error, the court of appeals “reject[ed] counsel’s
assertion that his erroneous belief about the status of the case constitutes mistake,
inadvertence, or excusable neglect as those terms are defined in the context of
Civ.R. 60(B).” Jackson II, at ¶ 9. It appears that the erroneous decision to
dismiss Jackson II was made as a matter of convenience; it was easier to proceed
in Jackson III because that complaint had the necessary affidavits. The court of
appeals went on to hold that counsel’s failure to recall previous dismissals was
also not excusable neglect under Civ.R. 60(B). Id., ¶ 10. By his own admission,
Pusateri was aware of his client’s pro se declaratory-judgment action in the
common pleas court and of her voluntary dismissal of that action. We have long
held that the inexcusable neglect of an attorney is attributable to the represented
party. GTE Automatic, 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph four of the
syllabus.
       {¶ 28} We hold that the court of appeals’ decision rejecting Jackson’s
assertion of excusable neglect was not unreasonable, arbitrary, or unconscionable
and did not constitute an abuse of discretion. Rather, the court based its decision
on a well-reasoned analysis of counsel’s deliberate actions. We therefore affirm
the decision to deny Jackson’s motions for relief from judgment and leave to file
an amended complaint.
       {¶ 29} Because we affirm the court of appeals’ ruling that Jackson failed
to establish exclusable neglect, we do not reach the question whether Jackson met




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the remaining requirement for relief from judgment: demonstration of a
meritorious claim if relief is granted.
       {¶ 30} Based on the foregoing, we affirm the judgment of the court of
appeals.
                                                                   Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY and FRENCH, JJ., concur.
       O’DONNELL, J., concurs in judgment only.
       PFEIFER, LANZINGER, and O’NEILL, JJ., dissent.
                           _________________________
       O’NEILL, J., dissenting.
       {¶ 31} I respectfully dissent from the majority opinion in this case. Any
fair reading of the court of appeals decision will reveal that it is a classic elevation
of form over substance. Civ.R. 60(B) is a remedial rule, and it was an abuse of
discretion for the lower court to deny Jackson leave to file an amended complaint
so that she can have a full and fair hearing on the merits of her case.
       {¶ 32} The proper application of Civ.R. 60 is all the more significant in
this unique matter in light of Jackson’s allegation that a substantive order of the
governor of Ohio is being ignored. This simply cannot happen in a judicial
system founded on the rule of law.
       {¶ 33} Jackson alleges that at her parole hearing, the Ohio Parole Board
failed to follow conditions in a warrant of commutation issued by the governor.
Attempts to address this failure resulted in mistakes on the part of Jackson’s
attorney. The issue is whether these mistakes are the sort that can be remedied by
Civ.R. 60(B). The majority opinion restates this court’s definition of excusable
neglect, once again defining that term in the negative: “a defendant’s inaction is
not excusable neglect if it can be deemed a ‘ “complete disregard for the judicial
system.” ’ ” Majority Opinion at ¶ 23, quoting Kay v. Marc Glassman, Inc., 76




                                           8
                                 January Term, 2014




Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996), quoting GTE Automatic Elec., Inc. v.
ARC Industries, Inc., 47 Ohio St.2d 146, 153, 351 N.E.2d 113 (1976).
       {¶ 34} In Colley v. Bazell, 64 Ohio St.2d 243, 248, 416 N.E.2d 605
(1980), this court stated that


       the concept of “excusable neglect” must be construed in keeping
       with the proposition that Civ.R. 60(B)(1) is a remedial rule to be
       liberally construed, while bearing in mind that Civ.R. 60(B)
       constitutes an attempt to “strike a proper balance between the
       conflicting principles that litigation must be brought to an end and
       justice should be done.” 11 Wright & Miller, Federal Practice &
       Procedure 140, Section 2851, quoted in Doddridge v. Fitzpatrick
       (1978), 53 Ohio St.2d 9, 12 [371 N.E.2d 214].


       {¶ 35} The majority does not appear to believe that the ill-fated dismissal
strategy was a cynical move designed to deceive. Indeed, there is no reason to
believe that it was anything but an honest mistake by an attorney attempting to get
his client’s plight before the proper tribunal. It is precisely the sort of case that
Civ.R. 60(B) is designed to address. The majority is simply mistaken when it
states that these facts demonstrate a complete disregard for the judicial system or
a substandard performance. Total disregard for the judicial system connotes far
worse behavior, such as a litigant who obstinately refuses to attend a deposition or
a lawyer who repeatedly misses court dates. If Jackson’s allegations are true, an
order from the governor of this state is being ignored. By labeling her attorney’s
honest mistake “inexcusable,” the majority denies her a chance to prove her case
and perhaps even gain her freedom. Some might argue that the real “disregard for
the judicial system” is to be found not in the attorney’s unfortunate mistake but in
today’s hypertechnical result.




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       {¶ 36} I make no judgment here as to whether the petition should have
been granted on its merits. But to hold, as the majority does, that procedure is
more important than substance is simply wrong. I therefore respectfully dissent.
       PFEIFER and LANZINGER, JJ., concur in the foregoing opinion.
                         _________________________
       Timothy Young, Ohio Public Defender, and Stephen A. Goldmeier,
Assistant Public Defender, for appellant.
       Michael DeWine, Attorney General, and Peter L. Jamison, Assistant
Attorney General, for appellees.
                         _________________________




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