[Cite as Block v. Battaglia, 2018-Ohio-4380.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                        GEAUGA COUNTY, OHIO


 KIM M. BLOCK,                                     :        OPINION

                   Plaintiff-Appellee,             :
                                                            Case No. 2017-G-0135
         - vs -                                    :

 GREG BATTAGLIA,                                   :

                   Defendant-Appellant.            :


 Civil Appeal from the Chardon Municipal Court, Case No. 2013 CVE 585.

 Judgment: Affirmed.


 Dennis P. Levin, Landerbrook Corporate Center, 5910 Landerbrook Drive, Suite 200,
 Cleveland, OH 44124 (For Plaintiff-Appellee).

 Victor A. Mezacapa, III, Licata & Toerek, 4500 Rockside Road, Suite 420,
 Independence, OH 44131 (For Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}      Greg Battaglia appeals from the judgment of the Chardon Municipal Court,

denying his second motion for relief from judgment pursuant to Civ.R. 60(B). Finding the

matter is barred by res judicata, we affirm.

        {¶2}      Mr. Battaglia was involved in a property line dispute with his neighbor, Kim

M. Block in Bainbridge, Ohio. On or about August 13, 2013, Ms. Block filed a complaint

with the trial court, alleging Mr. Battaglia had assaulted her August 16, 2012, and injured
her. October 17, 2013, Mr. Battaglia answered, and counterclaimed, alleging that Ms.

Block had trespassed on his property, and assaulted him.

       {¶3}   January 16, 2014, Ms. Block’s counsel served interrogatories and a request

for production on Mr. Battaglia’s former counsel. February 21, 2014, Mr. Battaglia’s

former counsel requested, and received, a 15-day extension of time to respond. Nothing

was forthcoming, so, March 12, 2014, Ms. Block’s counsel sent a demand letter to Mr.

Battaglia’s former counsel, providing that if responses to the discovery were not received

by March 14, 2014, a motion to compel and for attorney fees would be filed.

       {¶4}   March 13, 2014, Mr. Battaglia’s former counsel contacted Ms. Block’s

counsel, and informed him he would meet with Mr. Battaglia the next day, and obtain the

requested discovery.     On or about March 14, 2014, Mr. Battaglia’s former counsel

contacted Ms. Block’s counsel, and said the meeting with his client had been changed to

March 17, 2014.

       {¶5}   March 26, 2014, Ms. Block’s counsel received a motion to withdraw from

Mr. Battaglia’s former counsel, as well as the trial court’s order granting the motion. March

27, 2014, Ms. Block’s counsel moved to compel production. March 28, 2014, the trial

court granted the motion to compel, and gave Mr. Battaglia ten days to produce the

discovery requested.

       {¶6}   April 10, 2014, Ms. Block’s counsel moved for sanctions pursuant to Civ.R.

37(B)(2). April 21, 2014, present counsel for Mr. Battaglia noticed his appearance, and

moved for extensions of time to respond to the discovery request, and respond to the

motion for sanctions. April 24, 2014, the trial court denied the motion for an extension of




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time to respond to the discovery requests, but granted Mr. Battaglia’s counsel ten days

to respond to the motion for sanctions.

      {¶7}   June 11, 2014, the motion for sanctions was granted.          The trial court

ordered Mr. Battaglia’s counterclaim dismissed. It further ordered that he not be allowed

to defend against Ms. Block’s, and granted Ms. Block default judgment.

      {¶8}   August 14, 2014, hearing on damages was held before the trial court’s

magistrate. August 21, 2014, the magistrate issued his decision, granting Ms. Block

compensatory and punitive damages, and attorney fees. No objections were filed, so the

trial court adopted the decision September 8, 2014.

      {¶9}   October 10, 2014, Mr. Battaglia’s counsel filed a motion to vacate the

default judgment with the trial court, and a notice of appeal with this court. December 22,

2014, we dismissed the appeal as untimely filed. January 5, 2016, the trial court denied

the motion to vacate. Mr. Battaglia did not appeal.

      {¶10} August 7, 2017, Mr. Battaglia filed a second motion to vacate. Ms. Block

opposed. The trial court denied the motion August 23, 2017, and Mr. Battaglia noticed

this appeal September 20, 2017, assigning two errors. The first reads:

      {¶11} “The trial court erred in failing to conduct a hearing in which Mr. Battaglia

could participate on the default judgment, as appellant Gregory Battaglia would have had

an opportunity to demonstrate at a hearing (1) that he had a meritorious defense to the

liability claims that were being alleged by Ms. Block (2) that Mr. Battaglia was unable to

retrieve the discovery he had given to his retained counsel and therefore was unable to

produce the documents requested by counsel for Ms. Block.”




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       {¶12} Under this assignment of error Mr. Battaglia notes that default judgment is

a disfavored procedure, and argues that his failure to make discovery was not willful, but

the result of the inaction of his first counsel.

       {¶13} The second assignment of error reads: “The trial court erred in denying Mr.

Battaglia’s motion for relief from judgment.” Under this assignment of error, Mr. Battaglia

again argues that his failure to make discovery was not willful; that he had a meritorious

defense; that Ms. Block’s testimony contradicts what she told the police about the

underlying incident; and the failure by his first counsel to provide discovery was excusable

neglect under Civ.R. 60(B).

       {¶14} We review a trial court’s decision to grant or deny a motion for relief from

judgment for abuse of discretion. QualChoice, Inc. v. Baumgartner, 11th Dist. Trumbull

No. 2007-T-0086, 2008-Ohio-1023, ¶8, citing Ludlow v. Ludlow, 11th Dist. Geauga No.

2006-G-2686, 2006-Ohio-6864, ¶24. Regarding this standard, we recall the term “abuse

of discretion” is one of art, connoting judgment exercised by a court which neither

comports with reason, nor the record. State v. Ferranto, 112 Ohio St. 667, 676-678

(1925). An abuse of discretion may be found when the trial court “applies the wrong legal

standard, misapplies the correct legal standard, or relies on clearly erroneous findings of

fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.)

       {¶15} In Baumgartner, supra, at ¶9-11, we stated:

       {¶16} “Civ.R. 60(B) provides, in pertinent part:

       {¶17} “‘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




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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. (* * *)”’

        {¶18} “‘Civ.R. 60(B) is an equitable remedy that is intended to afford relief in the

interest of justice. To prevail on a motion pursuant to Civ.R. 60(B), the movant must

demonstrate: “(* * *)(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 (* * *).” GTE Automatic

Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146 (* ----), * * *, at paragraph

two of the syllabus. These requirements are conjunctive; not disjunctive. Id. at 151, 351

N.E.2d 113.’ Ludlow, supra, at ¶ 23. (Parallel citation omitted.)”

        {¶19} “Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or on an appeal from that judgment.” State v.

Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus.




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       {¶20} All of the issues presented by Mr. Battaglia in this appeal were evident at

the time of his initial appeal. A Civ.R. 60(B) motion is no substitute for appeal, but must

present issues which could not be considered in an appeal of the underlying judgment.

Beechler v. Beechler, 95 Ohio App.3d 121, 125 (12th Dist.1994). Consequently, the

assignments of error are barred by res judicata.

       {¶21} The assignments of error lack merit.

       {¶22} The judgment of the Chardon Municipal Court is affirmed.



THOMAS R. WRIGHT, P.J., concurs in judgment only,

TIMOTHY P. CANNON, J., concurs in judgment only with a Concurring Opinion.



                            ______________________________



TIMOTHY P. CANNON, J., concurring in judgment only.

       {¶23} I agree the trial court did not abuse its discretion in denying appellant’s

Civ.R. 60 (B) motion for relief from judgment. However, I would not cite as authority a

criminal case applying the doctrine of res judicata in support of the trial court’s decision

and this court’s opinion on appeal. While the trial court did not specify the reason for

denying the motion, it was not filed timely and on that basis alone should have been

denied.




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