[Cite as Coshocton v. Gilbert, 2020-Ohio-1299.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


CITY OF COSHOCTON,                                :   JUDGES:
                                                  :   Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                      :   Hon. Craig R. Baldwin, J.
                                                  :   Hon. Earle E. Wise, J.
-vs-                                              :
                                                  :
WAYNE DOUGLAS GILBERT,                            :   Case No. 2019CA0018
                                                  :
        Defendant - Appellant                     :   OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Coshocton County
                                                      Court of Common Pleas, Case No.
                                                      2019CI0226



JUDGMENT:                                             Affirmed



DATE OF JUDGMENT:                                     March 31, 2020



APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

ROBERT A. SKELTON                                     WARNER MENDENHALL
Attorney for the State                                The Law Offices of Warner Mendenhall
760 Chestnut Street                                   190 North Union Street, Suite 201
Coshocton, Ohio 43812                                 Akron, Ohio 44304
Coshocton County, Case No. 2019CA0018                                              2


Baldwin, J.

      {¶1}    Wayne Douglas Gilbert appeals the decision of the Coshocton County Court

of Common Pleas denying his motion for relief from judgment. Appellee is the City of

Coshocton.

                       STATEMENT OF FACTS AND THE CASE

      {¶2}    On June 26, 2019, the City of Coshocton filed a Complaint for Abatement

of Public Nuisance against Appellant Wayne Douglas Gilbert, and Jason Seven LLC, a

limited liability company whose sole owner was Gilbert. The complaint alleged that the

condition of three properties owned by the defendants were menaces to public health and

welfare, unsanitary, no longer fit and habitable and a hazard to the public health, welfare

and safety.

      {¶3}    On July 1, 2019 Gilbert was served a copy of the summons and complaint

and on July 24, 2019 the trial court issued a judgment entry scheduling a full hearing on

the complaint for August 20, 2019. The judgment entry was sent via regular U.S. Mail to

Gilbert's counsel pursuant to Civ.R. 5(B).

      {¶4}    Gilbert filed an answer on July 24, 2010 asking that the complaint be

dismissed.

      {¶5}    The case came before the trial court for hearing on August 20, 2019. In the

judgment entry issued following the hearing, the trial court noted that Gilbert and his

counsel "failed to appear for the hearing."(Judgment Entry, August 27, 2019, p. 1, Docket

# 14). The trial court found that “‘these ‘buildings’ are public nuisances" and ordered

"transfer of ownership to the City of Coshocton" for completion of eviction and demolition.

Id. The clerk sent a copy of the entry to Gilbert's counsel on August 28, 2019.
Coshocton County, Case No. 2019CA0018                                                3


       {¶6}   Gilbert filed a motion for relief from judgment pursuant to Civ.R. 60(B) citing

"grounds of mistake." (Motion for Relief from Judgment, October 8, 2019, p. 1, Docket

#15). Within the motion Gilbert's trial counsel sets forth text he represents as being taken

from the "online" docket which reflects an incorrect trial date of August 29, 2019. Counsel

relied on this "online docket" so he and Gilbert did not appear at the August 20, 2019

hearing. Id. Gilbert contends the trial court's mistaken "online docket" warrants vacation

of the judgment and a new trial under Civ.R. 60(B). The motion does not contain any

evidence or allegation that Gilbert had a meritorious claim to present if relief had been

granted. GTE Automatic Electric v. ARC Industries, 47 Ohio St.2d 146, 351 N.E.2d 113

(1976), paragraph two of the syllabus; Neubauer v. Kender, 32 Ohio App.3d 49, 50, 513

N.E.2d 1359 (10th Dist.1986).

       {¶7}   Coshocton filed a memorandum contra and Gilbert replied. On October 30,

2019 the trial court issued its decision, describing the issue before the court as whether

"a party or attorney may rely on the Clerk's electronic appearance docket for notice of

hearing." (Judgment Entry, October 30, 2019, p.1, Docket # 18) The trial court issued

findings of fact and concluded that the clerk had complied with the Civil Rules regarding

the service of judgment entries, delivering a copy of the trial court's order containing the

correct trial date to Gilbert’s counsel by regular mail. The trial court concluded that

Gilbert's reliance on the Clerk's electronic appearance docket was unsupportable,

because the clerk's electronic appearance docket "contains a disclaimer which sets forth

that the information contained in the online records system may be inaccurate, and users

must acknowledge the disclaimer prior to using the system." (Judgment Entry, October

30, 2019, p.2, paragraph 5, Docket # 18) The trial court held that because the court
Coshocton County, Case No. 2019CA0018                                                   4


speaks through its journal and not the clerk's electronic appearance docket, relief from

judgment was unwarranted.

       {¶8}     Gilbert filed a notice of appeal and submitted one assignment of error:

       {¶9}     “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THE

TRIAL COURT'S ELECTRONIC DOCKET MISTAKE DID NOT ENTITLE THE

APPELLANT TO A RELIEF FROM JUDGMENT.”

                                         ANALYSIS

       {¶10} The issue to be decided on an appeal from the denial of a Civ.R. 60 motion

for relief from judgment is whether the trial court abused its discretionary authority

provided by the rule. State, ex rel. Freeman, v. Kraft, 61 Ohio St.2d 284, 400 N.E.2d 1357

(1980) as quoted in Moore v. Emmanuel Family Training Ctr., Inc., 18 Ohio St.3d 64, 66,

479 N.E.2d 879 (1985). A motion for relief from judgment under Civ.R. 60(B) is addressed

to the sound discretion of the trial court, and that court's *** ruling will not be disturbed on

appeal absent a showing of abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77,

514 N.E.2d 1122 (1987). (Citations omitted).

       {¶11} To obtain relief from judgment under Civ.R. 60(B), a 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. supra, paragraph two of

the syllabus.
Coshocton County, Case No. 2019CA0018                                                 5


              The above three requirements of the GTE Automatic test “are

       independent of one another and in the conjunctive.” Technical Servs. Co. v.

       Trinitech Internatl., 9th Dist. No. 21648, 2004-Ohio-965, 2004 WL 384352,

       ¶ 10. Accordingly, “if the movant fails to satisfy any one of these

       requirements, the trial court must deny the motion.” Id. See also Stojkoski

       v. Main 271 South, LLC, 9th Dist. No. 25407, 2011-Ohio-2117, 2011 WL

       1734062, ¶ 5 (“The three-part test set forth in GTE Automatic is a

       conjunctive one, therefore, the moving party's failure to satisfy any of these

       three requirements will result in a denial of the motion.”). A reviewing court

       evaluates a trial court's decision to grant or deny a Civ.R. 60(B) motion

       under an abuse of discretion standard. Technical Servs., at ¶ 11.

Gamble Hartshorn, LLC v. Lee, 10th Dist. No. 17AP-35, 2018-Ohio-980, 108 N.E.3d 728,

¶ 11appeal not allowed sub nom. Gamble Hartshorn, L.L.C. v. Lee, 153 Ohio St.3d 1441,

2018-Ohio-2834, 102 N.E.3d 499.

       {¶12} The trial court instead focuses on the second element of the GTE Automatic

analysis, whether Gilbert is entitled to relief. The trial court notes that the clerk complied

with the Civil Rules by sending a copy of the court order with the correct date to Gilbert's

counsel. Gilbert's counsel concedes that he received the order with the correct date, but

failed to notice any discrepancy. Without explanation, Gilbert's counsel continued to rely

on the clerk's appearance docket despite the fact that it expressly warns users that the

information may be inaccurate.

       {¶13} Gilbert attempted to persuade the trial court that the decision in Griesmer v.

Allstate Ins. Co., 8th Dist. Cuyahoga No. 91194, 2009-Ohio-725, ¶ 19 supported his
Coshocton County, Case No. 2019CA0018                                                  6


position but the trial court found that case distinguishable as the appellant in Griesmer

never received the notice of the adverse ruling. The trial court also found that dicta in the

opinion suggested that practitioners have an obligation to follow the clerk’s docket for

evidence of filing of orders but could not rely upon it for the content of the order as Gilbert

now contends.

          {¶14} Gilbert included the case of Dublin v. Beatley, 5th Dist. Delaware App. No.

16 CAE 04 0021, 2016-Ohio-5606, 70 N.E.3d 976, ¶ 15 in his brief, but in that case the

appellee's claims were based upon an error in the electronic filing system that was

unknown to appellee until the judgment entry of dismissal. Appellee in Dublin timely filed

a brief electronically and received confirmation that brief had been filed. That appellee

had completed his obligation and the error was created by the court. In this case the error

was created by Gilbert's counsel relying upon inaccurate information after being

cautioned it may be inaccurate, and disregarding the court order with the correct date.

And while parties may have a duty to keep apprised of the progress of their case on the

docket, this caveat is more related to the date of the filing and is not relevant to content.

In re Adoption of J.H., 9th Dist. Lorain No. 06CA008902, 2006-Ohio-5957, ¶ 9.

          {¶15} The Court denied the motion, finding that the error was with appellant's

counsel and we interpret this finding to be a conclusion that there was no excusable

neglect on the part of Gilbert or his counsel. Excusable neglect has been defined as some

action:

          [n]ot in consequence of the party's own carelessness, inattention, or willful

          disregard of the process of the court, but in consequence of some

          unexpected or unavoidable hindrance or accident.” Emery v. Smith, 5th
Coshocton County, Case No. 2019CA0018                                              7


      Dist. Nos. 2005CA00051, 2005CA00098, 2005-Ohio-5526, ¶ 16 quoting

      Vanest v. Pillsbury Co. (1997), 124 Ohio App.3d 525, 536 fn. 8, 706 N.E.2d

      825. “In addition, ‘[w]hile unusual or special circumstances can justify

      neglect, if a party could have controlled or guarded against the happening

      or event he later seeks to excuse, the neglect is not excusable.’ ” Sandifer

      v. Yoder, 5th Dist. Tuscarawas No. 2015 AP 02 0008, 2015-Ohio-4270, ¶

      20, quoting National City Bank v. Kessler, 10th Dist. No. 03AP–312, 2003–

      Ohio–6938, ¶ 14.

Gingrich, supra at ¶¶ 13-14

      {¶16} Just like the appellant in Gingrich, supra, Gilbert has shown a complete

disregard for the judicial system and could have guarded against the default judgment

from which he sought relief by opening and reviewing the trial court's order. Id. at ¶ 15.

The clerk’s appearance docket was inaccurate, but users are warned of the potential for

mistakes. Even if we were to disregard that warning, counsel received a properly served

notice of the hearing with the correct date and had he reviewed it, the discrepancy would

have been clear, prompting a review of the facts to determine the correct date.

      {¶17} After considering the entirety of the record, we do not find that the court's

decision to deny the motion for relief from judgment was unreasonable, arbitrary or

unconscionable, Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, 1142

(1983) and therefor conclude there was no abuse of discretion.
Coshocton County, Case No. 2019CA0018                                         8


      {¶18} Appellant's sole assignment of error is overruled and the decision of the

Coshocton County Court of Common Pleas is affirmed.



By: Baldwin, J.

Hoffman, P.J. and

Wise, Earle, J. concur.
