[Cite as Learning Tree Academy, Ltd. v. Holeyfield, 2014-Ohio-2006.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




THE LEARNING TREE ACADEMY, LTD.,                       :

        Plaintiff-Appellant,                           :           CASE NO. CA2013-10-194

                                                       :                OPINION
   - vs -                                                                5/12/2014
                                                       :

JENNIFER M. HOLEYFIELD, et al.,                        :

        Defendants-Appellees.                          :



                  CIVIL APPEAL FROM BUTLER COUNTY AREA III COURT
                                 Case No. CVF 1001497



Joseph R. Matejkovic, 8050 Beckett Center Drive, Suite 214, West Chester, Ohio 45069, for
plaintiff-appellant

Graydon Head & Ritchey LLP, Steven P. Goodin, 1900 Fifth Third Center, 511 Walnut Street,
Cincinnati, Ohio 45202, for defendants-appellees, Jennifer M. & Steven Holeyfield



        PIPER, J.

        {¶ 1} Plaintiff-appellant, The Learning Tree Academy, LTD., (Learning Tree), appeals

a decision of the Butler County Area III Court granting a motion of Jennifer and Steven

Holeyfield, permitting them to file untimely objections to the magistrate's decision.1




1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar for the purpose of
issuing this written opinion.
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       {¶ 2} Steven Holeyfield is in the military, and was stationed for a time near Butler

County before the family moved to Florida in December 2011. He and Jennifer sent their

children to Learning Tree for day-care while the family lived in Ohio. Part of Learning Tree's

fees was to be paid by an organization that provides assistance to military families in paying

day-care expenses. However, the Holeyfields had an unpaid balance for services provided

by Learning Tree from January 2009 to August 2010, and Learning Tree sued the Holeyfields

for the outstanding balance.

       {¶ 3} The matter progressed to a bench trial before a magistrate, where Learning

Tree was represented by counsel and the Holeyfields proceeded pro se. The Holeyfields

argued that they had paid their part of the expenses and that the organization that assisted

military families was responsible for paying the remaining balance. The magistrate, however,

determined that the Holeyfields had failed to perform their duty under the contract and owed

Learning Tree $4,397.       The magistrate issued its decision on December 14, 2011

recommending judgment in favor of Learning Tree.

       {¶ 4} On January 12, 2012, the trial court issued a judgment entry which adopted the

magistrate's decision. The trial court's decision stated that neither party had filed objections

to the magistrate's decision, and further entered judgment against the Holeyfields for $4,397

in favor of Learning Tree. Also on January 12, 2012, the Holeyfields filed an objection to the

magistrate's decision. On January 13, 2012, the trial court issued a notice to the parties that

it had received the Holeyfields' objection to the magistrate's decision, and that such was not

filed timely within 14 days of the magistrate's decision date. The trial court noted that

"judgment on this case has already been rendered, therefore if you still wish to object, an

appeal will have to be filed." The trial court sent the Holeyfields the proper paperwork and

instructions for filing an appeal.

       {¶ 5} On February 24, 2012, the Holeyfields, by and through counsel, filed a notice of
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appeal with this court. After Learning Tree filed a motion to begin garnishment proceedings,

the Holeyfields filed a motion to stay the wage garnishment and soon thereafter, filed a

Civ.R. 60(B) motion to set aside the judgment of the trial court. The Holeyfields argued that

once Steven was stationed in Florida, the family's quick move there did not permit time

enough to provide the court with their new address before the magistrate's decision was

released. The Holeyfields asserted that their move to Florida occurred in December 2011,

and that they consequently did not receive a copy of the magistrate's decision in time to file

objections within the 14-day timeframe.

       {¶ 6} On June 18, 2012, the trial court issued a decision and entry granting a stay of

the garnishment proceedings and sua sponte converted the Holeyfields' Civ.R. 60(B) motion

into one requesting leave of court to file untimely objections to the magistrate's decision. The

court granted the Holeyfields leave to file objections to the magistrate's decision out of time.

       {¶ 7} On July 3, 2012, this court dismissed with prejudice the Holeyfields' appeal after

they gave this court notice of their intent to voluntarily dismiss their appeal. On July 18,

2012, Learning Tree filed its own appeal to this court, challenging the trial court's entry

staying the garnishment and converting the Holeyfields' Civ.R. 60(B) motion into one

requesting leave of court to file objections out of time.

       {¶ 8} On August 3, 2012, the Holeyfields filed their objections to the magistrate's

decision, as permitted by the trial court. Learning Tree filed several responses to the

Holeyfields' objections, one of which moved the court to suspend proceedings pending its

appeal to this court.    The trial court granted Learning Tree's motion, and stayed the

proceedings.

       {¶ 9} On December 17, 2012, this court issued a judgment entry reversing the trial

court's decision for lack of jurisdiction. The Learning Tree Academy, Ltd. v Holeyfield, 12th

Dist. Butler No. CA2012-07-144 (Dec.17, 2012) (Accelerated Calendar Judgment Entry).
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Within our entry, this court noted that the trial court's decision to convert the Holeyfields'

Civ.R. 60(B) motion was made at a time when the Holeyfields' original appeal was still

pending and had not yet been dismissed. Given that a trial court does not have jurisdiction to

rule on a motion while an appeal is pending, this court reversed the trial court's decision and

remanded the issue.

       {¶ 10} Approximately ten months after the remand, on October 9, 2013, the trial court

issued an entry granting the Holeyfields leave to file objections to the magistrate's decision

out of time. The trial court noted that it was adopting the reasoning set forth in its June 18,

2012 decision, and incorporated the analysis as if fully rewritten. The Holeyfields filed their

objections once more with the trial court. Learning Tree now appeals the trial court's decision

to convert the Holeyfields' Civ.R. 60(B) motion into a motion for leave to file objections out of

time, raising the following assignment of error.

       {¶ 11} THE        TRIAL    COURT        ERRED       TO      THE     PREJUDICE         OF

PLAINTIFF/APPELLANT WHEN IT SET ASIDE THE JUDGMENT.

       {¶ 12} Learning Tree argues in its assignment of error that the trial court erred by

converting the Holeyfields' Civ.R. 60(B) motion into one for leave to file objections to the

magistrate's decision.

       {¶ 13} According to Civ.R. 53(D)(3)(b)(i), a party has 14 days to file objections to the

magistrate's decision. However, Civ.R. 53(D)(5) provides that "for good cause shown, the

court shall allow a reasonable extension of time for a party to file a motion to set aside a

magistrate's order or file objections to a magistrate's decision."

       {¶ 14} The civil rules further permit a trial court to allow the parties an extension of

time in certain circumstances. Civ.R. 6(B) provides,

              when by these rules or by a notice given thereunder or by order
              of court an act is required or allowed to be done at or within a
              specified time, the court for cause shown may at any time in its
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                 discretion * * * (2) upon motion made after the expiration of the
                 specified period permit the act to be done where the failure to act
                 was the result of excusable neglect * * *.

        {¶ 15} "While Civ.R. 6(B)(2) permits a court to extend the time prescribed by the civil

rules for performing an act upon a showing of excusable neglect, that rule 'contemplates a

request for an extension of time to do an act which is made before the court rules on the

matter the act concerns.'" Stamper v. Keatley, 4th Dist. Lawrence No. 04CA14, 2004-Ohio-

5430, ¶ 7 quoting Miller v. Smith, 2d Dist. Montgomery No. 19958, 2004-Ohio-1310, ¶ 13.

(Emphasis sic.)2

        {¶ 16} Once a trial court makes a final judgment on the matter, the civil rules permit a

party to seek relief from that final judgment only through a motion notwithstanding the verdict

(Civ.R. 50[B]), a motion for a new trial (Civ.R. 59), or a motion for relief from judgment (Civ.R.

60[B]). Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 379-380 (1981). Otherwise, a trial

court lacks jurisdiction to rule upon motions that request relief from a final judgment already

rendered. Murray v. Goldfinger, Inc., 2d Dist. Montgomery No. 19433, 2003-Ohio-459, ¶ 5;

Koberstein v. Richard Lumber, 5th Dist. Richland No. 03-CA-110, 2004-Ohio-5291, ¶ 7.

        {¶ 17} Once the trial court received the Holeyfields' Civ.R. 60(B) motion, it had

jurisdiction to consider their request for relief from judgment. It did not, however, have

jurisdiction to permit objections to the magistrate's decision when the magistrate's decision

was adopted and already made a final judgment by the trial court. See In re J.A.M., 12th

Dist. Butler No. CA2010-07-174, 2011-Ohio-668, ¶ 15 (finding that the trial court's jurisdiction

"terminated" once it entered a final judgment in the matter, and therefore did not have

jurisdiction to consider a party's untimely objections to the magistrate's decision).



2. Similarly, a trial court has the discretion to sua sponte consider objections filed after the 14-day time limit of
Civ.R. 53(D) so long as the trial court has not entered a final judgment. Mitchell v. Haynes, 7th Dist. Mahoning
No. 00CA117 (Aug.30 2001). Such consideration will be treated as the court implicitly granting leave to file late
objections. Id.
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        {¶ 18} The trial court entered a final judgment against the Holeyfields on January 12,

2012, after the 14-day window had closed during which the Holeyfields were permitted to file

objections. When the trial court received an objection from the Holeyfields on the same day

it adopted the magistrate's decision and entered the final judgment in favor of Learning Tree,

the trial court issued a notice to the parties that the time for objections had passed and that

the proper way for the Holeyfields to challenge the final judgment was to file an appeal.

Once the trial court entered the final judgment against the Holeyfields, it did not have

jurisdiction to convert their Civ.R. 60(B) motion into one permitting objections to the

magistrate's decision out of time.

        {¶ 19} Upon remand, the trial court has jurisdiction to consider the Holeyfields' motion

as it was originally filed according to Civ.R. 60(B). Regarding the motion, the Holeyfields are

required to demonstrate that they are entitled to relief from judgment, as set forth in well-

established case law and the applicable civil rules.3

        {¶ 20} Learning Tree argues against a remand for consideration of the Holeyfields'

motion for relief from judgment because the Holeyfields cannot use their Civ.R. 60(B) motion

as a substitute for a direct appeal. "While a Civ.R. 60(B) motion may not be used as a

substitute for a timely appeal, it may be used when the movant's arguments do not merely

raise arguments which concern the merits of the case and could have been raised on

appeal." State v. Potts, 7th Dist. Jefferson No. 05-JE-14, 2006-Ohio-7057, ¶ 34 (finding

60(B) motion proper vehicle to move for relief from judgment where appellant asserted that

he had never received a copy of the summary judgment motion and was not made aware of



3. Within the trial court's decision granting leave to file objections out of time, the trial court performed an
analysis as to why the court was permitting the late filing. However, the trial court did not address the elements
required by Civ.R. 60(B), most notably, whether or not the Holeyfields have a meritorious defense. See GTE
Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150 (1976). Instead, the trial court made
reference to the Holeyfields having a "colorable claim," but did not analyze whether such claim would fulfill the
requirements of Civ.R. 60(B).
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the hearing on the motion). While this court takes no stance on the ultimate likelihood of

success of the Holeyfields' motion, we nonetheless note that a Civ.R. 60(B) motion would be

a proper means of arguing that the Holeyfields are entitled to relief from judgment because

they relocated to Florida and never received notice that the magistrate had issued an opinion.

       {¶ 21} Accordingly, we sustain Learning Tree's assignment of error in so much as the

trial court lacked jurisdiction to convert the Holeyfields' Civ.R. 60(B) motion into one

requesting leave to file late objections. However, our decision does not foreclose the

possibility of the trial court ruling upon the Holeyfields' motion as originally filed according to

Civ.R. 60(B).

       {¶ 22} Judgment reversed and the cause is remanded for further proceedings.


       RINGLAND, P.J., and M. POWELL, J., concur.




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