[Cite as Rae-Ann Geneva, Inc. v. Blakeslee, 2019-Ohio-406.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


RAE-ANN GENEVA, INC.,                                   :     OPINION

                  Plaintiff-Appellee,                   :
                                                              CASE NO. 2017-A-0067
         - vs -                                         :

ROBERT BLAKESLEE a.k.a.                                 :
ROBERT C. BLAKESLEE, et al..,
                                                        :
                  Defendant-Appellant.
                                                        :


Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014 CV
0684.

Judgment: Affirmed.


Roy Schechter, Sara M. Costanzo and Jeffrey J. Sobeck, Weltman Weinberg & Reis,
323 West Lakeside Avenue, Suite 200, Cleveland, OH 44113 (For Plaintiff-Appellee).

Patricia J. Schraff and John P. Thomas, Schraff Thomas Law, LLC, 2802 S.O.M.
Center Road, Suite 200, Willoughby Hills, OH 44094 (For Defendant-Appellant).


DIANE V. GRENDELL, J.

         {¶1}     Defendant-appellant, Robert Blakeslee, appeals the August 16 and 31,

2017 Judgment Entries of the Ashtabula County Court of Common Pleas, denying his

Motion for Relief from Judgment. The issue before this court is whether a party is

entitled to vacate a final order based on claims of which the party was aware prior to the

final order being entered. For the following reasons, we affirm the judgment of the court

below.
       {¶2}   The trial court has summarized the procedural history of this case as

follows:

                    Between April 25, 2014, and August 1, 2014, Plaintiff
              [Rae-Ann Geneva] provided Robert Blakeslee (“Robert”) with
              nursing care services. On or about April 29, 2014, Margaret
              Blakeslee (“Margaret”) executed an Admission Agreement on
              behalf of Robert. On October 23, 2014, Plaintiff filed the
              Complaint in this matter, seeking payment from Robert and
              Margaret for the services rendered.

                     On December 30, 2015, the Court granted summary
              judgment in favor of Plaintiff and against Robert in the principal
              amount of $15,603.73, together with interest at the rate of 18%
              per annum from August 11, 2014. Summary judgment was not
              granted against Margaret. On February 5, 2016, Plaintiff
              voluntarily dismissed its claims against Margaret.

                     On February 12, 2016, Robert filed his first Motion to
              Vacate. On March 29, 2016, the parties agreed to vacate the
              judgment for ninety days so that Robert could attempt to offset
              some of the judgment with Medicaid coverage. Robert initially
              applied for Medicaid coverage in April 2014, and was denied
              coverage in April 2015. Robert appealed the denial, and on May
              15, 2015, the appeal was sustained. A “one year letter” was
              issued to Plaintiff on June 17, 2015. It is unclear why Robert
              who at all times has been represented by counsel, did not inform
              the Court of the existence of his Medicaid coverage approval
              before judgment was entered against him.

                     On or about June 16, 2016, Plaintiff submitted a claim to
              Medicaid on behalf of Robert. The charges for room and board
              were approved. The charges for therapy services were not
              approved. It is unclear if the therapy charges were submitted
              and not approved, not submitted, or not submitted because they
              would not be approved. The payments received from Medicaid
              and rate adjustments were applied to Robert’s account, reducing
              the total amount he owed to Plaintiff. Plaintiff concedes that the
              adjustments applied to Robert’s account after Medicaid
              payments were initially miscalculated. That amount has since
              been revised.

                     On July 28, 2016, the Court overruled Robert’s motion to
              extend the ninety-day agreed-upon vacation order, and it also
              overruled his Motion to Vacate. On August 3, 2016, the parties



                                            2
              again agreed to vacate judgment for another ninety-day period.
              On October 18, 2016, the Court reinstated its judgment against
              Robert, per the agreement of the parties.


       {¶3}   On December 30, 2016, Blakeslee filed the Motion from Relief from

Judgment which is the subject of the present appeal. As the basis for relief, Blakeslee

alleged as follows:

              New evidence and fraud have been discovered as (1) Medicaid
              claims documents recently obtained from the Ohio Department
              of Medicaid demonstrate that Medicaid paid claims billed by Rae
              Ann; and (2) Ohio Administrative Code 5160-1-13.1 prevents
              Rae Ann from collecting or billing “the consumer for any
              difference between the Medicaid payment and the provider’s
              charge.”

       {¶4}   On January 17, 2017, Rae-Ann filed a Brief in Opposition to Blakeslee’s

Motion for Relief from Judgment.

       {¶5}   On March 13, 2017, a hearing was held on the Motion to Vacate.

       {¶6}   On August 16, 2017, the trial court issued a Judgment Entry, overruling

Blakeslee’s Motion for Relief for Judgment and ordering Rae-Ann Geneva to “submit a

final judgment entry which corrects the clerical error and reflects the accurate amount

owed to Plaintiff.”

       {¶7}   The trial court found that Blakeslee had failed to demonstrate a

meritorious defense. The court noted that Blakeslee did not have Medicaid benefits at

the time Rae-Ann Geneva provided therapy services with “the understanding that they

would be paid for privately, since the only sources of payment at the time were [his]

private resources.” The fact that Blakeslee subsequently received Medicaid benefits

which covered charges for room and board did “not retroactively strip [Rae-Ann




                                          3
Geneva] of its right to payment for the therapy services which were provided solely on

the understanding of private payment.”

         {¶8}   The trial court further found that Blakeslee’s claims were not supported

either by newly discovered evidence or evidence of fraud: “Robert learned that he had

Medicaid coverage on May 18, 2015. The Court did not enter judgment against him

until December 30, 2015, more than seven months after Robert received notice that he

had coverage. The evidence that Robert is now introducing could have been available

prior to the Court’s granting summary judgment if he had exercised due diligence.”

         {¶9}   On August 31, 2017, the trial court entered a Final Judgment Entry,

awarding Rae-Ann Geneva judgment in the amount of $15,603.73 with interest and

costs.

         {¶10} On September 13, 2017, Blakeslee filed a Notice of Appeal. On appeal,

he raises the following assignment of error:

         {¶11} “[1.] The Trial Court erred in denying the Motion for Relief from Judgment

filed by Robert Blakeslee pursuant to Civ.R. 60(B) when it determined that Robert

Blakeslee failed to satisfy all of the requirements for a successful Civ.R. 60(B) motion.”

         {¶12} “To prevail on a motion brought under 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. 60(B)(1), (2) or (3), not more than one year after the

judgment, order or proceeding was entered or taken.” GTE Automatic Elec., Inc. v.




                                               4
ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the

syllabus.

       {¶13} The decision to grant or deny a Civ.R. 60(B) motion is entrusted to the

sound discretion of the trial court. In re Whitman, 81 Ohio St.3d 239, 242, 690 N.E.2d

535 (1998), citing Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987).

       {¶14} On appeal, Blakeslee reiterates his claim that Rae-Ann Geneva is

precluded from recovering that amount based on Ohio Administrative Code 5160-1-

13.1(A) which provides: “[t]he medicaid payment for a covered service constitutes

payment-in-full,” and “[t]he provider may not collect and/or bill the consumer for any

difference between the medicaid payment and the provider’s charge.” According to

Blakeslee, by accepting payment from Medicaid for his room and board, Rae-Ann

Geneva has forfeited the right to recover therapy charges directly from him: “Rae-Ann

charged Blakeslee for therapy services, in addition to the room-and-board services

approved by Medicaid, which constitute ‘payment-in-full’ in accordance with OAC 5160-

1-13.1(A).” Appellant’s brief at 7-8.

       {¶15} Blakeslee’s argument is precluded by the doctrine of res judicata and/or

the proposition that a motion for relief from judgment cannot be used as a substitute for

a timely appeal. In re Complaint of Pilkington N. Am., Inc., 145 Ohio St.3d 125, 2015-

Ohio-4797, 47 N.E.3d 786, ¶ 34 (“[t]he doctrine of res judicata applies to a Civ.R. 60(B)

motion filed as a substitute for appeal”); Harris v. Anderson, 109 Ohio St.3d 101, 2006-

Ohio-1934, 846 N.E.2d 43, ¶ 8 (“[r]es judicata prevents successive filings of Civ.R.

60(B) motions [for] relief from a valid, final judgment when based upon the same facts

and same grounds or based upon facts that could have been raised in the prior




                                           5
motion”). Here, Blakeslee’s argument that the payment Rae-Ann Geneva received from

Medicaid constituted “payment-in-full” as to all charges could have been raised prior to

the original grant of summary judgment in December 2015 as well as in a direct appeal

from the reinstatement of that judgment in October 2016.

        {¶16} Blakeslee was aware that Rae-Ann Geneva had received Medicaid

payments on his behalf as early as August 5, 2015. On that date, Rae-Ann Geneva

filed with the trial court the Affidavit of its authorized representative, John Griffiths, who

stated: “[T]he amount due and owing by the Defendants, Robert Blakeslee and

Margaret D. Blakeslee, to the Plaintiff, Rae-Ann Geneva, Inc., was $35,203.73 at the

time the Complaint in this matter was filed.                Due to payments received and rate

adjustments through the Medicaid program totaling $19,600.00 the current balance is

$15,603.73.”1       Thus, Blakeslee was aware that Rae-Ann Geneva had received

payments that potentially precluded judgment in its favor prior to the entry of the original

final judgment.

        {¶17} Blakeslee maintains the newly discovered evidence is evidence that “Rae-

Ann never submitted invoices for therapy services to Medicaid because Rae-Ann

believed that Medicaid did not cover therapy services.” Appellant’s brief at 10.

        {¶18} On the contrary, in a Supplemental Brief in Support of 60(B) Motion, filed

on July 28, 2016 (about three months prior to the reinstatement of the original final

judgment), Blakeslee argued that Rae-Ann Geneva failed to “take the proper steps to

inform [him] that it would not be filing Medicaid for the physical therapy services as



1. In a subsequent Affidavit, filed on February 29, 2016, Griffiths stated explicitly that “Medicaid covered
the room and board portion of Robert Blakeslee’s bill and charges for room and board have been paid in
full,” but Medicaid “does not provide coverage for any of the charges for therapy which make up 100% of
Robert Blakeslee’s remaining bill.”


                                                     6
required” by the Ohio Administrative Code.       This is essentially the same argument

raised in the Motion for Relief from Judgment filed six months later. There is no reason

why Blakeslee could not have raised it in a direct appeal from the October 18, 2016

Judgment Entry.

      {¶19} The sole assignment of error is without merit.

      {¶20} For the foregoing reasons, the August 16 and 31, 2017 Judgment Entries

of the Ashtabula County Court of Common Pleas, denying Blakeslee’s Motion for Relief

from Judgment, are affirmed. Costs to be taxed against appellant.



THOMAS R. WRIGHT, P.J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



                    ______________________________________



COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

      {¶21} Clearly, the trial court’s decision violates Ohio Adm.Code 5160-1-13.1(A),

which precludes Rae-Ann from pursuing Mr. Blakeslee, since it accepted Medicaid

payments for some of its services. Further, the majority ignores the evidence of Holly

Hasman, a Medicaid employee, who testified to this effect.

      {¶22} Since the trial court misapplied the law, I would utilize Civ.R. 60(B)(5), the

“catchall” provision, to cure the error. However, this court has held that errors of law in

the trial court are not cognizable under Civ.R. 60(B)(5). In Estate of Gaul v. Lake Hosp.

Sys., Inc., 11th Dist. Lake No. 96-L-154, 1998 WL 386188, *6 (May 22, 1998), this court




                                            7
explained:

       {¶23} “However, a Civ.R. 60(B)(5) motion may not be used to attack an alleged

mistake of law by the trial court. See McNair v. Dowler (Dec. 20, 1991), Ashtabula App.

No. 90-A-1574, unreported (Christley, J., concurring); Hughes v. Hughes (May 9, 1997),

Portage App. No. 96-P-0196, unreported, at 12. See, also, In re: Smith v. Bd. of Health

(June 28, 1993), Scioto App. No. 92CA-2095, unreported, at 20, 1993 Ohio App. LEXIS

3467 (holding that ‘(l)egal error does not constitute “mistake” under Civ.R. 60(B)(1) nor

does it satisfy Civ.R. 60(B)(5) “any other reason justifying relief.”’              Indeed, a

Civ.R.60(B)(5) motion which challenges an alleged mistake of law is, in effect, a motion

to reconsider. In re: Smith at 19. As appellants have pointed out, such a motion to

reconsider is a nullity when directed towards a final, appealable order. Pitts[v. Dept. of

Trans, 67 Ohio St.2d 378 (1981),] at paragraph one of the syllabus.

       {¶24} I would find our decision in Estate of Gaul to be in error. The decision of

the trial court in this case clearly violates the governing administrative code sections,

and clearly violates Mr. Blakeslee’s rights. It is clearly an “other reason justifying relief.”




                                               8
