[Cite as Bank of New York Mellon v. Ackerman, 2016-Ohio-960.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 BANK OF NEW YORK MELLON                            :
                                                    :
         Plaintiff-Appellee                         :    C.A. CASE NO. 26779
                                                    :
 v.                                                 :    T.C. NO. 09CV3194
                                                    :
 GREGORY T. ACKERMAN, et al.                        :    (Civil appeal from
                                                    :     Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                            ...........

                                            OPINION

               Rendered on the ___11th___ day of _____March_____, 2016.

                                            ...........

SCOTT A. KING, Atty, Reg. No. 0037582 and TERRY W. POSEY, JR., Atty. Reg. No.
0078292, 10050 Innovation Drive, Suite 400, Miamisburg, Ohio 45342
     Attorneys for Plaintiff-Appellee

GREGORY T. ACKERMAN, 556 Shadowlawn Avenue, Dayton, Ohio 45419
    Defendant-Appellant

                                           .............

DONOVAN, P.J.

        {¶ 1} This matter is before the Court on the pro se Notice of Appeal of Gregory T.

Ackerman and Joyce L. Ackerman, filed July 29, 2015. The Ackermans appeal from the

June 29, 2015 “Final and Appealable Decision, Order and Entry Overruling Defendants’

Motion for Relief from Judgment,” issued in favor of The Bank of New York Mellon, fka
                                                                                       -2-


The Bank of New York as Successor in interest to JP Morgan Chase Bank NA as Trustee

for Bear Stearns Asset-Backed Certificates, Series 2005-SD1 (“BNYM”). We hereby

affirm the judgment of the trial court.

       {¶ 2} BNYM filed a complaint in foreclosure against the Ackermans on April 21,

2009, seeking judgment on the balance due on a Note and to foreclose on a Mortgage

securing the payment of the Note. The subject property is located at 556 Shadowlawn

Avenue. On November 11, 2010, the trial court granted BNYM’s Motion for Summary

Judgment and entered a Decree in Foreclosure. This Court affirmed the decision of the

trial court in Bank of N.Y. Mellon v. Ackerman, 2d Dist. Montgomery No. 24390, 2012-

Ohio-956.

       {¶ 3} On May 3, 2013, the Shadowlawn property was sold to Freshzone Products,

Inc. (“Freshzone”), for $73,100.00 at sheriff’s sale; Freshzone paid 10% of the purchase

price as a down payment, and the sale was confirmed on June 20, 2013. On August 23,

2013, BNYM filed a “Motion to Vacate Journal Entry Confirming Sale, to Set Aside

Sheriff’s Sale and to Punish Purchaser as for Contempt.” According to BNYM, Freshzone

failed to remit to the Sheriff the balance of its successful bid. On January 16, 2014, the

magistrate sustained BNYM’s motion.

       {¶ 4} On February 3, 2014, the trial court adopted the magistrate’s decision. On

the same day, the Ackermans filed both objections to the magistrate’s decision and

“Defendant’s Motion for Leave of Court to File ‘Out of Rule.’ ” On February 4, 2014 the

court issued an “Order and Entry Finding Defendant’s Motion for Leave of Court to File

‘Out of Rule’ to be Moot.” The court determined that the Ackermans’ objections were

untimely since “Defendants had until January 31, 2014 to file their objections to the
                                                                                        -3-


magistrate’s decision.” The court determined as follows:

              The Court further finds in Defendant’s Objections to Magistrate

       Judge Decision that Defendants do not move the Court’s Judgment Entry

       Adopting Magistrte’s Decision to be vacated pursuant to Civ.R. 60(B) or

       otherwise, nor have Defendants appealed the Court’s final judgment entry

       pursuant to App.R. 4.     Although Defendants’ opportunity to initiate an

       appeal of the Court’s final judgment entry remains as of the date of this

       entry, the Court must interpret Defendant’s Objections to Magistrate

       Decision as a motion for reconsideration. Therefore, upon consideration

       made pursuant to [Murray v. Goldfinger, 2d Dist. Montgomery No. 19433,

       2003-Ohio-459, ¶ 5], the Court finds Defendant’s Objections to Magistrate

       Judge Decision to be a nullity, and thus moot. For purposes of clarity, this

       entry shall not be considered a final appealable order.

       {¶ 5} On February 11, 2014, the Ackermans filed a “Judicial Notice of Time Upon

Defendant’s Objections to the Magistrate Judge Decision,” in which they argued that their

objections were timely filed, citing Civ.R. 5(B)(2)(c) and Civ.R. 6. On February 13, 2014,

the court issued a “Notice to Parties on Defendants’ Judicial Notice of Time Upon

Defendant’s Objections to the Magistrate Judge Decision.” Therein the court noted that

the Ackermans failed to appeal its decision adopting the magistrate’s decision and were

accordingly limited to seeking relief pursuant to Civ.R. 60(B). The court noted as follows:

“However, [the Ackermans] merely rely on Civ.R. 6 in their ‘Judicial Notice.’ ” Civ.R. 6

provides in relevant part: “Whenever a party has the right or is required to do some act or

take some proceedings within a prescribed period after the service of a notice or other
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document upon that party and the notice or paper is served upon that party by mail or

commercial carrier service under Civ.R. 5(B)(2)(c) or (d), three days shall be added to the

prescribed period. * * *.”     Civ.R. 6(D).    The Court concluded that “although [the

Ackermans] move the Court in their ‘Judicial Notice,’ because such notice is not captioned

as a motion nor does it rely upon Civ.R. 60(B), the Court cannot rule on the merits of any

motion therein.” The court noted, “for the sole purpose of clarity to the parties,” that the

three additional days provided in Civ.R. 6 does not apply to extend the 14-day time period

for filing objections to a magistrate’s decision, citing in part, Duganitz v.Ohio Adult Parole

Auth., 92 Ohio St.3d 556, 558, 751 N.E.2d 1058 (2001).

       {¶ 6} On February 19, 2014, the Ackermans filed a “Motion for 2nd Judicial Notice

Request Pursuant to Evid.R. 102 and Substantial Rights, Motion for Time (Civ.R.6) Upon

Defendant’s Timely Objections to Magistrate Judge Decision, Motion for Relief Pursuant

to Civ.R. 60(A) and (B),” asking the court to vacate its judgment adopting the magistrate’s

decision. In a section entitled “Substantive Law and Substantive Right,” the Ackermans

cited Civ.R. 53 and Civ.R. 6, and they asserted in part as follows:

              * * *[T]he Defendant’s (sic) objection to the magistrate decision are

       (sic) timely, authorized and conforming to these Ohio Rules of Civil

       Procedure for objecting the magistrate’s decision, which is due by time

       computation on February 03, 2014.         A show cause of 14 days to file

       “objections to magistrate decision”, plus 3 days “service by mail”, plus, 1

       day for the “next succeeding day which is not, . . . a Sunday” equals 18 days

       from the magistrate decision filed on January 16, 2014. In conclusion, the

       court’s “Judgment Entry Adoption of the Magistrate’s Decision” filed on
                                                                                              -5-


       February 03, 2014 at 3:43 PM is premature and imprudent to the

       Defendant’s (sic) fair objection to the magistrate decision, and moot to this

       court proceeding.

       {¶ 7} In a section entitled “Motion for Relief from Judgment or Order,” the

Ackermans asserted as follows:

              The Defendants motion the court with good cause and timely show

       cause merit (sic) in presenting their valid adjudicative facts and proper

       conclusions of law for remedies of relief, have timely filed their “Defendant’s

       Objections to the Magistrate Judge Decision” on February 03, 2014 for non-

       prejudicial sua sponte action of the court based on these above invoked

       rules of law. The Defendants now also invoke Civ.R. 60(A) and (B) for

       addition[al] measures of remedies of relief from all judgments and orders

       pursuant to this court’s; oversight, omission and mistakes * * *.

       {¶ 8} BNYM replied to the motion on March 5, 2014, asserting that “[a]lthough

Defendants cite to Civil Rule 60(B), they make no reference to how this Rule applies to

their case, nor do they raise any error upon which their Motion is based.” Also on that

date, the Ackermans filed a Notice of Appeal, which resulted in Montgomery County Case

No. CA 26118, which this Court dismissed on March 31, 2015 for failure to file an

appellate brief and prosecute the appeal. The trial court did not rule upon the Ackermans’

February 19, 2014 motion while the appeal was pending.

       {¶ 9} In ruling in favor of BNYM and denying the Ackermans’ motion on June 29,

2015, the trial court initially quoted Civ.R. 53(D)(4)(e)(i), which provides that “[i]f the court

enters a judgment during the fourteen days permitted by Civ.R. 53(D)(3)(b)(i) for the filing
                                                                                              -6-


of objections, the timely filing of objections to the magistrate’s decision shall operate as

an automatic stay of execution of the judgment until the court disposes of those objections

* * *.” The court noted that this rule does not apply herein, since the court’s entry

adopting the magistrate’s decision was filed 18 days after the magistrate’s decision was

issued, and accordingly, the Ackermans were not entitled to an automatic stay. After

noting that it had previously addressed the Ackermans’ argument that the court erred in

in its computation of time for the filing of objections to a magistrate’s decision in the court’s

February 13, 2014 “Notice to Parties on Defendants’ Judicial Notice of Time Upon

Defendant’s Objections to the Magistrate Judge Decision” the court concluded that it “has

not yet addressed” the Defendants’ request for relief from Judgment pursuant to Civ.R.

60.

       {¶ 10} The court then considered Civ.R. 60(A) and (B) and conducted the following

analysis:

              ***

              With respect to Defendants’ request that the Court invoke Civ.R.

       60(A), the Court finds such arguments to be unpersuasive, as the Court’s

       previous Judgment Entry Adopting Magistrate Decision contains no clerical

       errors or omissions which would permit relief under this rule. * * *In the

       instant matter, the Defendants are arguing that the Court made a legal

       and/or factual mistake in its computation of the time for filing objections to

       the Magistrate’s Decision, which is substantive in nature and therefore

       governed by Civ.R. 60(B). * * * Accordingly, the Defendants’ motion will be

       considered under Civ.R. 60(B).
                                                                                  -7-


       With respect to Civ.R. 60(B), the Court acknowledges that it is

without authority to sua sponte vacate its previous judgment entries under

this rule, and that it must consider the merits of the Defendants’ arguments.

* * * Upon consideration of the respective arguments of the parties, the

Court finds that the Defendants have failed to demonstrate that they are

entitled to relief under Civ.R. 60(B). The Defendants have not specified that

they are entitled to relief under one of the grounds of Civ.R. 60(B)(1) through

(5), which is a requirement under the GTE [Automatic Electric, Inc. v. ARC

Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976)] test. * * * Even

if this Court were to construe the Defendants’ argument that the Court was

mistaken in its computation of time for the filing of objections as a motion

for relief from judgment pursuant to Civ.R. 60(B)(1), the Second District

Court of Appeals has held that “ ‘ a motion for relief from judgment cannot

be predicated upon the argument that the trial court made a mistake in

rendering its decision.’ ” * * * Accordingly, the Defendants have failed to

meet the second prong of the GTE test. * * * Further, the Defendants have

failed to present a meritorious defense as required under the first prong of

the GTE test. * * *

       Accordingly, the Defendants failed to meet the first and second

prongs of the GTE test. * * * As the Defendants have failed to make a prima

facie showing that the ends of justice would be better served by setting

aside this Court’s previous judgments, the Court hereby overrules

Defendants’ Motion for Relief from Judgment, the sole remaining issue as
                                                                                         -8-

       contained in Defendants’ Motion for 2nd Judicial Notice Request of

       Defendant’s Objections to the Magistrate Judge Decision.

       {¶ 11} Prior to addressing the Ackermans’ assigned errors herein, we note that

the caption of their brief contains a jury demand, and that the body of their brief contains

a motion for appointment of counsel. A jury demand is not properly asserted in an

appellate brief, and this Court denied the Ackermans’ motion for appointment of counsel

by entry dated Nobember 24, 2015.

       {¶ 12} The Ackermans assert two lengthy assignments of error herein which may

be summarized together; according to the Ackermans, the trial court created a “prejudicial

omission” of the automatic stay provided for in Civ.R. 53(D)(3)(b)(i), and further, the

Ackermans assert that their objections were timely filed based upon the application of

Civ.R. 6. BNYM responds that the Ackermans are not entitled to relief under Civ.R. 60.

In Reply, the Ackermans assert that their “timely filed” objections are a “meritorious

defense invoking an ‘automatic stay’ of the proceedings (beginning 02/03/2014).”

       {¶ 13} Civ.R. 60 provides as follows:

              (A) Clerical mistakes

              Clerical mistakes in judgments, orders or other parts of the record

       and errors therein arising from oversight or omission may be corrected by

       the court at any time on its own initiative or on the motion of any party and

       after such notice, if any, as the court orders. * * *

              (B) Mistakes; inadvertence; excusable neglect; newly discovered

       evidence; fraud; etc.

              On motion and upon such terms as are just, the court may relieve a
                                                                                        -9-


      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.

              The procedure for obtaining any relief from a judgment shall be by

      motion as prescribed in these rules

      {¶ 14} This Court reviews the denial of both Civ.R. 60(A) and Civ.R. 60(B) motions

for an abuse of discretion. Brush v. Hassertt, 2d Dist. Montgomery No. 21687, 2007-

Ohio-2419, ¶ 25 (“Because a trial court is in the best position to know what it actually

meant, we give considerable deference to its ruling on a Civ.R. 60(A) motion and will not

reverse absent an abuse of discretion. * * *.”); Ray v. Ramada Inn N., 2d Dist. Montgomery

No. 25140, 2012-Ohio-6226, ¶ 8 (“We review the denial of a Civ.R. 60(B) motion for an

abuse of discretion.”). As this Court has noted:
                                                                                         -10-


              * * * An “abuse of discretion” means “an attitude that is unreasonable,

       arbitrary or unconscionable.” * * * “ ‘It is to be expected that most instances

       of abuse of discretion will result in decisions that are simply unreasonable,

       rather than decisions that are unconscionable or arbitrary.’ ” Id., quoting

       AAAA Enterprises, Inc. v. River Place Community Redevelopment, 50 Ohio

       St.3d 157, 161, 553 N.E.2d 597 (1990). “ ‘A decision is unreasonable if there

       is no sound reasoning process that would support that decision. It is not

       enough that the reviewing court, were it deciding the issue de novo, would

       not have found that reasoning process to be persuasive, perhaps in view of

       countervailing reasoning processes that would support a contrary result.’ ”

       Id.

(Citation omitted.) Ray at ¶ 8.

       {¶ 15} Regarding the application of Civ.R.60(A), this Court in Brush noted as

follows:

              “ ‘The basic distinction between clerical mistakes that can be

       corrected under Civ.R. 60(A) and substantive mistakes that cannot be [so]

       corrected is that the former consists of “blunders in execution” whereas the

       latter consists of instances where the court changes its mind, either

       because it made a legal or factual mistake in making its original

       determination, or because, on second thought, it has decided to exercise

       its discretion in a different manner.’ ”

(Citations omitted.) Id., ¶ 26.

       {¶ 16} As noted above, the Ackermans’ motion sought to have the trial court’s
                                                                                          -11-


decision adopting the magistrate’s decision vacated. Civ.R. 60(A) by its plain language

does not contemplate such relief, and we agree with the trial court that its decision

contains no clerical errors or omissions subject to correction under Civ.R. 60(A).

       {¶ 17} Regarding the application of Civ.R. 60(B), as this Court has further noted:

              To prevail on a Civ.R. 60(B) motion, the movant must show that he

       has a meritorious claim or defense to present, that he is entitled to relief

       under at least one of the grounds found in Civ.R. 60(B)(1) through (5), and

       that the motion is timely. Longworth v. Montgomery Cty. Treasurer, 2d Dist.

       Montgomery No. 25058, 2012–Ohio–4442, ¶ 11.

Ray, ¶ 8. Failure to establish any one of these three requirements is fatal to relief

pursuant to Civ.R. 60(B).      Deutsche Bank Trust Co. Americas v. Ziegler, 2d Dist.

Montgomery No. 26287, 2015-Ohio-1586, ¶ 3.            “ ‘A “meritorious defense” means a

defense “going to the merits, substance, or essentials of the case.” * * * Relief from a final

judgment should not be granted unless the party seeking such relief makes at least a

prima facie showing that the ends of justice will be better served by setting the judgment

aside.’ * * *.” (Citations omitted.) GMAC Mortgage, L.L.C. v. Herring, 189 Ohio App.3d

200, 2010-Ohio-3650, 937 N.E.2d 1077, ¶ 32 (2d Dist.).

       {¶ 18} A motion pursuant to Civ.R. 60(B) “is not a substitute for appeal. * * *

Grounds for Civ.R. 60(B) relief must be those stated in the rule, not grounds that should

have been asserted in an appeal.” Conley v. Conley, 2d Dist. Miami No. 2002-CA-1, 2002-

Ohio-4332, ¶ 12. We also note, as did the trial court, that a “ ‘motion for relief from

judgment cannot be predicated upon the argument that the trial court made a mistake in

rendering its decision. * * * The type of mistake contemplated by Civ.R. 60(B)(1) is a
                                                                                          -12-


mistake by a party or his legal representative, not a mistake by the trial court in its legal

analysis. * * *.’ ” (Citations omitted). Ford Motor Credit Co. v. Cunningham, 2d Dist.

Montgomery No. 20341, 2004-Ohio-6226, ¶ 15.

       {¶ 19} As this Court has previously noted, the doctrine of res judicata “bars all

claims that were litigated in a prior action as well as claims which might have been litigated

in that action.” Deaton v. Burney, 107 Ohio App.3d 407, 669 N.E.2d 1 (2d Dist. 1991).

As BNYM asserts, “the Ackermans prosecuted an appeal from the Judgment Entry

[adopting the magistrate’s decision], and lost. They do not get a second bite at the apple

through a post-judgment motion.” In other words, the Ackermans cannot rely upon Civ.R.

60(B) to assert arguments which are barred by the doctrine of res judicata.

       {¶ 20} Further, as the trial court noted, the Ackermans failed to assert a meritorious

defense going to the merits of BNYM’s case against them, and they accordingly failed to

establish that the ends of justice would be better served by setting aside the trial court’s

adoption of the magistrate’s decision. The Ackermans’ argument that the trial court

improperly “omitted” the automatic stay provided in Civ.R. 53(D)(4(e)(i) and erred in failing

to apply Civ.R. 6 does not constitute a meritorious defense against BNYM’s claims (and

is baseless, since the objections were untimely, as the trial court correctly determined

more than once). Finally, the trial court correctly found that the Ackermans failed to

specify that they are entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)-

(5).

       {¶ 21} Since an abuse of discretion is not demonstrated, the Ackermans’

assigned errors are accordingly overruled. The judgment of the trial court is affirmed.

                                        ..........
                                    -13-


FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Scott A. King
Terry W. Posey, Jr.
Gregory T. Ackerman
Hon. Dennis J. Langer
