[Cite as Wedemeyer v. U.S.S. FDR (CV-42) Reunion Assn., 2010-Ohio-6266.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                              ALLEN COUNTY




ALBERT WEDEMEYER,

        PLAINTIFF-APPELLANT,                                    CASE NO. 1-10-46

        v.

USS FDR (CV-42)
REUNION ASSOCIATION,                                            OPINION

        DEFENDANT-APPELLEE.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2009 0736

                                    Judgment Affirmed

                        Date of Decision: December 20, 2010




APPEARANCES:

        Thomas A. Sobecki for Appellant

        Richard E. Siferd for Appellee
Case No. 1-10-46


WILLAMOWSKI, P.J.,

       {¶1} Plaintiff-Appellant, Albert Wedemeyer (“Wedemeyer”), appeals the

judgment of the Allen County Court of Common Pleas denying his Civ.R. 60(B)

Motion for Relief from Judgment after his case against Defendant-Appellee, USS

FDR (CV-42) Reunion Association (“the Reunion Association”) was dismissed

for lack of personal jurisdiction.   In his second appeal concerning this case,

Wedemeyer maintains that the trial court erred in denying his motion alleging

excusable neglect and that the trial court also erred in finding that it lacked

personal jurisdiction. For the reasons set forth below, the judgment is affirmed.

       {¶2} On July 23, 2009, Wedemeyer filed suit against the Reunion

Association after it expelled him from membership for life for allegedly engaging

in disruptive conduct and activities.         The Reunion Association is an

unincorporated association, organized for social purposes, with a membership of

over 1,000 active and former members of the Armed Forces who served on board

the U.S.S. Franklin Roosevelt aircraft carrier. Wedemeyer complained that the

organization did not provide him with reasonable notice and an opportunity to

defend himself against the charges. He sought reinstatement and compensatory

damages.

       {¶3} The Reunion Association responded with a Civil Rule 12(B) Motion

to Dismiss, claiming that the association lacked sufficient contacts necessary to



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establish personal jurisdiction. Allegedly, the only contact with this state was the

fact that the organization’s treasurer lived in Lima, Ohio.        The motion was

supported with an affidavit from the Reunion Association’s treasurer stating that:

Wedemeyer lived in Georgia; the disruptive incidents occurred in Florida;

Wedemeyer was voted out of the association at its annual meeting in Florida; the

association was organized in Texas (although it was never chartered); it had

erected a monument in Florida; the treasurer was the only officer living in Ohio;

and it had never conducted meetings in Ohio, nor did it plan to do so.

       {¶4} A response was not filed within the required fourteen-day time

period pursuant to Loc.R. 3.03, so the trial court granted the Reunion

Association’s motion to dismiss on September 3, 2009. The trial court held that it

did not have subject matter jurisdiction and there was no allegation that the alleged

acts of the association involved Ohio.

       {¶5} On September 4, 2009, two days after the deadline to file a response

and one day after the trial court had filed its dismissal, Wedemeyer filed a

response with an affidavit and attachments alleging that the Reunion Association

had a more substantial presence in Ohio. Wedemeyer did not file a motion for

relief from judgment at that time.




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        {¶6} On September 29, 2009, Wedemeyer appealed the trial court’s

dismissal1 claiming that the trial court erred: (1) in finding that it lacked subject

matter jurisdiction; (2) in finding that it lacked personal jurisdiction; and (3) in

failing to consider Wedemeyer’s response because Civ.R. 6(E) provided an

additional three days time to file a response. See Wedemeyer v. USS FDR (CV-42)

Reunion Assn., 3d Dist. No. 1-09-57, 2010-Ohio-1502 (hereinafter, “Wedemeyer

I”). After a detailed analysis of the facts and law pertaining to this case, on April

5, 2010, this Court affirmed the trial court’s dismissal. Id. Although we found

that the trial court did have subject matter jurisdiction, the dismissal was proper

because the trial court lacked personal jurisdiction. Id. at ¶50. We also held that

Civ.R. 6(E) was not applicable to this type of filing and, therefore, “the trial court

did not err in ruling on the motion on September 3, 2009 (15 days after the filing

of the motion) without considering Wedemeyer’s untimely answer brief.”2 Id. at

¶17.    Wedemeyer did not appeal this decision.

        {¶7} On May 24, 2010, Wedemeyer filed a Civ.R. 60(B)(1) Motion for

Relief from Judgment from the trial court’s original dismissal of the case and

requested an evidentiary hearing.              Wedemeyer supported his motion with an


1
  This appeal was dismissed sua sponte by this Court on October 7, 2009, for lack of a final appealable
order because the trial court had failed to include the necessary language ordering the dismissal of the
complaint. The trial court filed an Amended Judgment Entry the same day and Wedemeyer filed an appeal
from this judgment entry on October 29, 2009.
2
  As a result of finding that Wedemeyer’s response brief and affidavit were untimely and properly not
considered by the trial court, our review of the jurisdictional issues was necessarily limited to the
allegations in Wedemeyer’s complaint and the Reunion Association’s affidavit. Wedemeyer I at ¶44.


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affidavit from his attorney explaining why the late filing of the response brief

should constitute “excusable neglect,” along with an affidavit from Wedemeyer

attesting to the reasons why he believed he had a meritorious claim in the

underlying complaint.     Wedemeyer asked the trial court to consider the late

response brief and its attachments in vacating the trial court’s judgment.

Wedemeyer did not provide any additional evidence or arguments as to the matter

of personal jurisdiction nor did he aver that there was any newly discovered

evidence concerning this matter.

       {¶8} On June 2, 2010, the trial court denied Wedemeyer’s 60(B) motion,

finding that “[Wedemeyer] has not shown his excusable neglect and has not

established any other reason justifying relief.” (June 2, 2010 J.E.) Furthermore,

citing this Court’s decision in Wedemeyer I, the trial court stated that “[t]he lack of

personal jurisdiction over the Reunion Association is fatal to [Wedemeyer’s] claim

and whether or not he has a meritorious defense does not matter because this Court

cannot exercise personal jurisdiction over [the Reunion Association].” (Id.)

       {¶9} Wedemeyer timely appeals this decision, raising the following three

assignments of error for our review.

                            First Assignment of Error

       The Court of Common Pleas committed reversible error in
       denying [Wedemeyer’s] Rule 60(B)(1) Motion For Relief from
       Judgment.



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                         Second Assignment of Error

      The Court of Common Pleas committed reversible error in
      holding that it lacked personal jurisdiction over [the Reunion
      Association] regarding the Rule 60(B)(1) motion filed by
      [Wedemeyer].

                          Third Assignment of Error

      The Court of Common Pleas committed reversible error in not
      granting Wedemeyer’s request, made in his Rule 60(B)(1)
      motion, for an evidentiary hearing prior to denying the motion.

      {¶10} Wedemeyer claims that the trial court erred in denying his Civ.R.

60(B) motion for relief from judgment. The Ohio Supreme Court has set forth the

requirements governing motions for relief from judgment as follows:

      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. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351

N.E.2d 113, paragraph two of the syllabus. All three elements are necessary to

prevail on a Civ.R. 60(B) motion, and the failure to establish even one of the

elements warrants a denial of the motion. Rose Chevrolet, Inc. v. Adams (1988),

36 Ohio St.3d 17, 520 N.E.2d 564.




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        {¶11} There is a “firm and long-standing principle that final judgments are

meant to be just that – final.” Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115

Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶22. Therefore, challenges to

final judgments, other than through the appeal process, are disfavored and will

succeed only in certain very limited situations. Id. The standard by which we

review a decision on a Civ.R. 60(B) motion is abuse of discretion. Strack v.

Pelton, 70 Ohio St.3d 172, 174, 1994-Ohio-107, 637 N.E.2d 914.

        {¶12} It is well established that an existing final judgment is conclusive as

to all claims which were or might have been litigated in a first lawsuit. National

Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178.

The doctrines of res judicata and law of the case would preclude relitigation of

these same issues of law or fact in a subsequent action or upon remand.

Therefore, a court must carefully consider the two conflicting principles of finality

and perfection when reviewing a motion for relief from judgment. Strack v.

Pelton, 70 Ohio St.3d at 175.

        {¶13} In his first assignment of error, Wedemeyer asks for relief on the

grounds of excusable neglect under Civ.R. 60(B)(1) which provides, in pertinent

part:

        On motion and upon such terms are as just, the court may
        relieve a party or his legal representative from a final judgment,
        order or proceeding for the following reasons:



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Case No. 1-10-46


          (1) Mistake, inadvertence, surprise, or excusable neglect;
              ***

(Emphasis added.) Civ.R. 60(B)(1). In his affidavit, Wedemeyer’s attorney states

that he believed Civ.R. 6(E) allowed an additional three days to file the response,

and therefore, the late filing was due to excusable neglect.

       {¶14} The trial court relied upon our detailed explanation of the applicable

law in Wedemeyer I and it determined that Wedemeyer had not established a

reason sufficient to warrant granting his motion for relief from judgment.

However, on appeal, Wedemeyer argues that the denial of a Civ.R. 60(B)(1)

motion due to a late filing because of a misunderstanding of Civ.R. 6(E) is an

abuse of discretion, relying upon the Second District Court of Appeal’s decision in

Martin v. Lesko (1999), 133 Ohio App.3d 752, 729 N.E.2d 839. Wedemeyer’s

arguments are without merit for several reasons.

       {¶15} The Second District has also held that Civ.R. 6(E) is not applicable

in cases such as this. See Wedemeyer I at ¶13. However, in Martin, the Court of

Appeals granted the motion due to excusable neglect because it found that the

specific language in that particular local rule was potentially confusing and might

be susceptible to more than one meaning. Martin at 757. The Martin decision

was confined to “the particular facts of [that] case” and did not involve the same

procedures, rules or wording as in the case before us now.            Id. at 758.

Furthermore, the Martin decision, in 1999, was several years prior to the Ohio


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Supreme Court’s more recent decision in Harvey v. Hwang, 103 Ohio St.3d 16,

2004-Ohio-4112, 812 N.E.2d 1275, which further clarified when Civ.R. 6(E) does

and does not function to extend a filing deadline by three days.

       {¶16} Based on the above, the trial court’s decision that Wedemeyer was

not entitled to the relief requested under Civ.R. 60(B)(1) was not an abuse of

discretion. Wedemeyer’s first assignment of error is overruled.

       {¶17} In his second assignment of error, Wedemeyer maintains that the

trial court erred in holding that it lacked personal jurisdiction over the Reunion

Association. However, this assertion appears to be based upon the presumption

that the trial court would find its Civ.R.60(B)(1) motion to be meritorious; that it

would admit and review the information included in Wedemeyer’s response brief;

and that the trial court would find those assertions would support a finding of

personal jurisdiction. Based upon our resolution of Wedemeyer’s first assignment

of error, the only information concerning jurisdiction available to the trial court

contained the same facts that the trial court had at the time of its original decision

and when we reviewed that decision in Wedemeyer I.

       {¶18} The law-of-the-case doctrine holds that “the decision of a reviewing

court in a case remains the law of that case on the legal questions involved for all

subsequent proceedings in the case at both the trial and reviewing levels.” Nolan

v. Nolan (1984), 11 Ohio St.3d 1, 3, 462 N.E.2d 410. Absent extraordinary



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circumstances, an inferior court has no discretion to disregard the mandate of a

superior court in a prior appeal in the same case. Id. at 5; Transamerica Ins. Co. v.

Nolan (1995), 72 Ohio St.3d 320, 323, 649 N.E.2d 1229. Therefore, with no new

facts before it to be considered, the trial court was bound by our prior holding in

Wedemeyer I finding that the court lacked personal jurisdiction over the Reunion

Association. Wedemeyer’s second assignment of error is overruled.

       {¶19} Likewise, Wedemeyer’s third assignment of error is based on the

premise that a party is entitled to a hearing on a Civ.R. 60(B) motion when the

grounds for relief from judgment are sufficiently alleged and are supported with

evidence that would warrant relief. See, e.g., Kay v. Marc Glassman, Inc., 76

Ohio St.3d 18, 19, 1996-Ohio-430, 665 N.E.2d 1102.            As discussed above,

Wedemeyer has failed to meet that standard and failed to provide evidence that

would change this Court’s prior determination that there was no personal

jurisdiction in this case. Therefore, the trial court did not err in denying the

motion without holding an evidentiary hearing. Wedemeyer’s third assignment of

error is overruled.

       {¶20} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

ROGERS and PRESTON, J.J., concur.



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