[Cite as McClintock v. Glick, 2012-Ohio-4091.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

TIM MCCLINTOCK                                        C.A. No.     11CA0055

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ELDON GLICK, et al.                                   COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   03-CV-0521

                                 DECISION AND JOURNAL ENTRY

Dated: September 10, 2012



        CARR, Judge.

        {¶1}    Appellant Simon Glick appeals the judgment of the Wayne County Court of

Common Pleas that denied his motion to set aside a November 24, 2003 judgment. This Court

affirms.

                                                 I.

        {¶2}    This case arises out of a family’s construction of a building without the proper

permits. In January 2003, the Wayne County Building Department issued Adjudication # 4-

2003, ordering compliance with the applicable sections of the Ohio Building Code. The Board

of Building Appeals affirmed the order. After the family failed to comply with the order, Tim

McClintock, in his capacity as a county building official, filed a complaint for a permanent

injunction to enjoin the use of the building for any purpose without a declaration by the Building

Department that the building was in compliance with code. On November 24, 2003, the trial

court issued a permanent injunction to that effect.
                                                2


        {¶3}    Since that time, the family has continuously challenged the efficacy of the

permanent injunction. The State, on behalf of the building official, has filed various contempt

motions. Family members, in particular Simon and his father Eldon, have filed appeals, motions

to vacate, objections, and “judicial notices of void judgments,” and other documents in an effort

to challenge the underlying permanent injunction. This Court issued a journal entry dismissing

the family’s immediate appeal from the judgment granting the permanent injunction because the

appellants failed to file a brief.

        {¶4}    On January 18, 2005, Simon Glick filed a motion to vacate the November 24,

2003 permanent injunction. The trial court denied the motion. This Court affirmed the denial

after concluding that Simon had improperly attempted to use the motion to vacate as a substitute

for an appeal.     McClintock v. Glick, 9th Dist. No. 05CA0009, 2005-Ohio-5187, ¶ 8, 10.

Moreover, we concluded that the family’s argument that the judgment was void for lack of

subject matter jurisdiction was merely a ruse because their substantive argument merely

challenged the Building Department’s and Board of Building Appeals’ findings that the family

was operating a commercial building which required a construction permit. Id. at ¶ 9.

        {¶5}    On March 23, 2011, Simon filed a motion to set aside the November 24, 2003

permanent injunction on the basis of an abuse of due process and constitutional error based on

the bias and prejudice of the judge who issued the injunction. That judge subsequently granted

the family’s motion to recuse and the case was transferred to the docket of another judge who

presided over the case since June 14, 2006. On October 25, 2011, the trial court denied Simon’s

motion to set aside the November 24, 2003 judgment for the reasons that the family had

previously appealed that judgment, attempted to vacate it, and ignored it over the course of

nearly eight years. Simon appealed, raising three assignments of error for review.
                                                 3


                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY RULING AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE IN SIMON GLICK’S AFFIDAVIT
       ATTACHED TO HIS MOTION TO SET ASIDE JUDGMENT.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY DENYING SIMON GLICK’S MOTION TO
       SET ASIDE THE NOVEMBER 24, 2003, JUDGMENT, BY ACTING IN A
       MANNER INCONSISTENT WITH DUE PROCESS, AND DEMONSTRATED
       CONSTITUTIONAL ERROR, IN VIOLATION OF ARTICLE I, SECTION 10,
       OF THE OHIO CONSTITUTION, OHIO REVISED CODE 2921.45, AND
       AMENDMENT V, VI, & VII, OF THE UNITED STATES CONSTITUTION.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN ITS ORDER BY SAYING, “THE
       DEFENDANTS HAVE APPEALED THAT (NOVEMBER 24, 2003)
       JUDGMENT, ATTEMPTED TO VACATE IT AND IGNORED IT DURING
       THE PAST NEARLY EIGHT (8) YEARS.” WHICH IS PREJUDICIAL AND
       CLEARLY CONTRARY TO THE RECORDS, COURT FINDINGS, AND
       FACTS IN THIS CASE.

       {¶6}    Simon argues that the trial court erred by denying his motion to set aside the

November 24, 2003 permanent injunction, because (1) the trial court’s finding that the building

was not in compliance with code provisions was against the manifest weight of the evidence; (2)

the injunction is void for lack of subject matter jurisdiction because the trial judge failed to

follow the law and acted in a manner inconsistent with due process; and (3) the trial court erred

in finding that the family had already appealed the judgment, attempted to vacate it, and

disregarded the injunction for almost eight years. This Court disagrees.

       {¶7}    A motion to set aside a final order is governed by Civ.R. 60(B). The decision to

grant or deny a motion for relief from judgment pursuant to Civ.R. 60(B) lies in the sound

discretion of the trial court and will not be disturbed absent an abuse of the discretion. Strack v.

Pelton, 70 Ohio St.3d 172, 174 (1994). An abuse of discretion is more than an error of
                                                 4


judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its

ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of

discretion standard, this Court may not substitute its judgment for that of the trial court. Pons v.

Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶8}    Civ.R. 60(B) states, in relevant part,

       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 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.

       {¶9}    To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party

must demonstrate that

       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. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph

two of the syllabus.


       {¶10} “The requirements of Civ.R. 60(B) are stated in the conjunctive; if one of the

requirements [is] not met, relief from judgment cannot be granted.” Wolotsky v. Portage Path

Community Mental Health Ctr., 9th Dist. No. 16827, 1995 WL 217032 (Apr. 12, 1995), citing

Strack, 70 Ohio St.3d at 174.
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       {¶11} As an initial matter, Simon waited seven-and-a-half years to file this motion to set

aside the judgment granting the permanent injunction, and then after having filed multiple

appeals, a prior motion to vacate, and numerous challenges to the judgment in the trial court.

The trial court noted the great length of time before Simon filed this most recent motion to set

aside, implicitly finding that the motion was not filed within a reasonable time. This Court

agrees. Simon has not argued how a delay of seven-and-a-half years in raising issues of which

he was aware from the time of the issuance of the November 24, 2003 injunction was reasonable.

       {¶12} Moreover, Simon did not identify any of the grounds enumerated in Civ.R. 60(B)

as a basis for his motion to set aside. Instead, he attempted to substantively challenge the

granting of the permanent injunction, a matter appropriate for a direct appeal, rather than a

motion to set aside. It is well settled that a party may not use a Civ.R. 60(B) motion, whether so

identified as such or not, as a substitute for a direct appeal. McClintock, 2005-Ohio-5187, at ¶ 8,

citing Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128, 131 (1986).

       {¶13} In addition, Simon argues that the trial court made erroneous factual findings in

its order denying his motion to set aside, warranting reversal. Because Simon has in fact

previously filed an appeal from the November 24, 2003 permanent injunction, previously moved

to vacate that order, and raised multiple challenges in the trial court including attempts simply to

declare various court orders void, his argument in this regard is not well taken.

       {¶14} Finally, we note that Simon argues that the permanent injunction was void ab

initio for lack of subject matter jurisdiction. “Because subject-matter jurisdiction goes to the

power of the court to adjudicate the merits of a case, it can never be waived and may be

challenged at any time. It is a condition precedent to the court’s ability to hear the case. If a

court acts without jurisdiction, then any proclamation by that court is void.” (Internal citations
                                                 6


and quotations omitted.) DaimlerChrysler Fin. Servs. N. Am. LLC v. Hursell Unlimited, Inc., 9th

Dist. No. 24815, 2011-Ohio-571, ¶ 20, quoting Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-

1980, ¶ 11.

       {¶15} It is well established that “[s]ubject-matter jurisdiction of a court connotes the

power to hear and decide a case upon its merits.          Subject-matter jurisdiction defines the

competency of a court to render a valid judgment in a particular action. In the civil context, the

standard applied is whether an allegation is raised on any cause of action cognizable by the court.

Further, subject-matter jurisdiction encompasses the court’s authority to determine a specific

case within that class of cases that is within its subject matter jurisdiction.” (Internal citations

omitted.) In re Darling, 9th Dist. No. 03CA0023, 2003-Ohio-7184, ¶ 14. Simon has not cited

any authority for the proposition that the court of common pleas lacks jurisdiction to issue

injunctive relief. To the extent that Simon argues that the November 24, 2003 permanent

injunction is void for lack of subject matter jurisdiction because the trial court failed to follow

the law or accord him due process, his argument is misplaced.

       {¶16} Based on the above analyses, Simon’s three assignments of error are overruled.

                                                III.

       {¶17} All assignments of error are overruled. The judgment of the Wayne County Court

of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



WHITMORE, P. J.
BELFANCE, J.
CONCUR.


APPEARANCES:

SIMON GLICK, pro se, Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, for Appellee.
