[Cite as Pristine Senior Living v. Mistler, 2020-Ohio-416.]




                                      IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




 PRISTINE SENIOR LIVING & POST-                           :
 ACUTE CARE OF OXFORD,
                                                          :   CASE NO. CA2019-05-083
        Appellant,
                                                          :        OPINION
                                                                    2/10/2020
     - vs -                                               :

                                                          :
 BERNADINE M. MISTLER, et al.,
                                                          :
        Appellees.



          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CV2018-10-2281



David S. Brown, 30100 Chagrin Boulevard, Suite 350, Cleveland, Ohio 44124, for appellant

Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for appellees


        S. POWELL, J.

        {¶ 1} Appellant, Pristine Senior Living & Post-Acute Care of Oxford ("Pristine"),

appeals the decision of the Butler County Court of Common Pleas granting a Civ.R. 60(B)

motion for relief from judgment filed by appellee, Randall Mistler ("Mistler"). For the reasons

outlined below, we affirm the trial court's decision.

        {¶ 2} On June 13, 2016, Mistler signed a document entitled "Pristine Senior Living

of Oxford, LLC Ohio Admission Agreement" as "Ronald A. Mistler POA." Mistler's signature
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appeared on the last page of the agreement on a signature line immediately above the

phrase "Responsible Party." There is no dispute that pursuant to this agreement Pristine

was to provide residential nursing care services to Mistler's mother, Bernadine. There is

also no dispute that it was only Mistler who signed the agreement, not Bernadine. The

record indicates Bernadine did not sign the agreement due to her being diagnosed with

dementia.

       {¶ 3} Section I of the agreement sets forth the parties subject to the agreement as

follows:

              This Admission Agreement (hereafter "Agreement") is made
              and entered into by Bernadine Mistler (Insert Name of Resident)
              (hereafter "Resident") or Randall A. Mistler (Insert Name of
              Guardian, Agent, Family Member, or Responsible Party,
              hereafter "Representative") and Pristine Senior Living of Oxford,
              LLC d/b/a Pristine Senior Living & Post-Acute Care of Oxford
              (hereafter, "Facility"). The "Responsible Party" is defined in
              Section V below, and together with the Resident, may be
              referred to as the "Parties" or "Undersigned." Reference to the
              Undersigned in the plural shall also include the singular.

       {¶ 4} Section IX of the agreement also sets forth how disputes and legal claims

between the parties would be resolved: first, negotiation and discussion, then, mediation,

and finally, arbitration. There is no dispute that the parties had a disagreement over a lapse

in payments under the agreement that ultimately resulted in this case going to arbitration.

There is also no dispute that following arbitration Pristine was granted a judgment against

both Mistler and his mother, Bernadine, jointly and severally, in the amount of $119,127.08

plus interest, attorney fees, and arbitration fees.

       {¶ 5} On February 26, 2018, Pristine filed an application to confirm the arbitration

award with the trial court. This application was filed with the trial court under Case No. CV

2018 02 0473. After the application was filed, the trial court scheduled the matter for a

status hearing. Mistler appeared at the status hearing pro se. Pristine, however, did not


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appear at the status hearing as instructed by the trial court. Due to Pristine's failure to

appear at the status hearing, the trial court dismissed Pristine's application to confirm the

arbitration award without prejudice in accordance with Civ.R. 41(B). The trial court issued

this decision on June 6, 2018.

        {¶ 6} On October 10, 2018, Pristine filed another application to confirm the

arbitration award. Pristine's application was filed with the trial court under Case No. CV

2018 10 2281. After holding a hearing on the matter, during which Mistler again appeared

pro se, the trial court granted Pristine's application to confirm the arbitration award levied

against both Mistler and Bernadine. The trial court issued this decision on December 20,

2018.

        {¶ 7} On February 15, 2019, Mistler filed a Civ.R. 60(B) motion for relief from

judgment.    Although now represented by counsel, Mistler filed this motion under the

previously dismissed Case No. CV 2018 02 0473. Shortly thereafter, on February 22, 2019,

Mistler refiled the same Civ.R. 60(B) motion for relief from judgment under the correct Case

No. CV 2018 10 2281. Mistler supported this motion by arguing the arbitration award levied

against him should be vacated since he signed the agreement only as power of attorney for

his mother, Bernadine, and not in his individual capacity.

        {¶ 8} On February 27, 2019, Pristine filed a memorandum in opposition to Mistler's

motion for relief from judgment filed in the previously dismissed Case No. CV 2018 02 0473.

In support, Pristine argued Mistler's motion should be denied as moot since that case had

already been dismissed. The trial court agreed and dismissed Mistler's motion March 11,

2019. It is undisputed that Pristine filed nothing in opposition to Mistler's motion for relief

from judgment in Case No. CV 2018 10 2281, with Pristine claiming it was never served

with the February 22, 2019 Civ.R. 60(B) motion.

        {¶ 9} On April 19, 2019, the trial court granted Mistler's motion for relief from

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judgment pursuant to Civ.R. 60(B)(5), a rule that allows a trial court to vacate a prior

judgment for "any other reason justifying relief from the judgment" that "'is intended as a

catch-all provision reflecting the inherent power of a court to relieve a person from the unjust

operation of a judgment.'" In re P.L.H., 12th Dist Butler No. CA2018-01-009, 2018-Ohio-

3653, ¶ 23, quoting Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 66 (1983). In so

holding, the trial court found "extraordinary and unusual circumstances" justified relieving

Mistler from its judgment confirming the arbitration award due to the arbitrator's lack of

jurisdiction over Mistler. Explaining this holding, the trial court found Mistler had proved that

he had "a meritorious defense or claim to present because he was not a signatory to the

Agreement and the arbitration clause contained within it."

       {¶ 10} Pristine now appeals the trial court's decision, raising two assignments of error

for review. For ease of discussion, we will address Pristine's two assignments of error

together.

       {¶ 11} Assignment of Error No. 1:

       {¶ 12} THE TRIAL COURT ERRED BY VACATING ITS PRIOR JUDGMENT

AGAINST APPELLEE AND DISMISSING APPELLEE.

       {¶ 13} Assignment of Error No. 2:

       {¶ 14} THE TRIAL COURT ERRED BY VACATING ITS PRIOR JUDGMENT

AGAINST APPELLEE, AND DISMISSING APPELLEE, WITHOUT A HEARING.

       {¶ 15} In its two assignments of error, Pristine argues the trial court erred by granting

Mistler's Civ.R. 60(B) motion for relief from the judgment confirming the arbitration award

levied against him or, at the very least, by granting Mistler's motion and dismissing him from

the case without first holding a hearing on the matter.

       {¶ 16} In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the

moving party must demonstrate that: (1) the party has a meritorious defense or claim to

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present if relief is granted; (2) the party is entitled to relief under one of the grounds stated

in Civ.R. 60(B), and; (3) the motion is made within a reasonable time. Reynolds v. Turull,

12th Dist. Butler No. CA2018-10-197, 2019-Ohio-2863, ¶ 9, citing GTE Automatic Electric,

Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. The

trial court granted Mistler's motion for relief from judgment in accordance with Civ.R.

60(B)(5). "Civ.R. 60(B)(5) is a catch-all provision reflecting the inherent power of a trial

court to relieve a person from the unjust operation of a judgment[.]" Tedrick v. Tedrick, 12th

Dist. Clermont No. CA2015-07-065, 2016-Ohio-1488, ¶ 26. "Civ.R. 60(B)(5) relief is to be

granted only in unusual or extraordinary circumstances." Id., citing Veidt v. Cook, 12th Dist.

Butler No. CA2003-08-209, 2004-Ohio-3170, ¶ 18. This requires the grounds for invoking

Civ.R. 60(B)(5) be "substantial." Bowman v. Leisz, 12th Dist. Warren No. CA2014-02-029,

2014-Ohio-4763, ¶ 28, citing Robinson v. Miller Hamilton Venture, L.L.C., 12th Dist. Butler

No. CA2010-09-226, 2011-Ohio-3017, ¶ 17.

       {¶ 17} "The policy in Ohio is to afford Civ.R. 60(B) relief where equitable." Robinson

at ¶ 14, citing Southern Ohio Coal Co. v. Kidney, 100 Ohio App.3d 661, 668 (4th Dist.1995).

The trial court determined that equity mandated, and justice required, granting Mistler relief

from its judgment confirming the arbitration award levied against him and dismissing him

from the case. We agree.

       {¶ 18} With respect to the common pleas court's decision to proceed without a

hearing, whether to hold a hearing is within the court's discretion when Civ.R. 60(B) relief

is evident on the face of the record. USB Real Estate Securities, Inc. v. Teague, 191 Ohio

App.3d 189, 2010-Ohio-5634, ¶ 35 (2nd Dist.), citing Daimler Chrysler Fin. v. L.N.H.,

Inc., 8th Dist. Cuyahoga No. 97437, 2012-Ohio-2204, ¶ 17. See also Hrabak v. Collins, 108

Ohio App.3d 117, 121 (8th Dist.1995). We find no abuse of discretion in this regard.

       {¶ 19} Therefore, we affirm the trial court's decision granting Mistler's motion for relief

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from judgment and dismissing Mistler as a party. Pristine's two assignments of error are

accordingly overruled.

      {¶ 20} Judgment affirmed.


      HENDRICKSON, P.J., and RINGLAND, J., concur.




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