[Cite as Dickerson v. Cuyahoga Metro. Hous. Auth., 2012-Ohio-4286.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 97961


                      J’LEXXYS DICKERSON, ET AL.
                                                         PLAINTIFFS-APPELLEES

                                                   vs.

CUYAHOGA METROPOLITAN HOUSING AUTHORITY
                                                         DEFENDANT-APPELLANT



                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-705527

        BEFORE: Rocco, P.J., Keough, J., and Kilbane, J.

        RELEASED AND JOURNALIZED: September 20, 2012
ATTORNEYS FOR APPELLANT

Timothy A. Marcovy
Michael S. Lewis
Aubrey B. Willacy
Willacy, Lopresti & Marcovy
330 Western Reserve Building
1468 West Ninth Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

Robert F. Dicello
Mark A. Dicello
The Dicello Law Firm
7556 Mentor Avenue
Mentor, Ohio 44060
KENNETH A. ROCCO, P.J.:

       {¶1}   Defendant-appellant the Cuyahoga Metropolitan Housing Authority

(“CMHA”) appeals the trial court’s order that granted a Civ.R. 60(B) motion for relief

from judgment filed by plaintiffs-appellees J’Lexxys Dickerson and her parents, thus

vacating an earlier order that granted summary judgment in favor of CMHA on appellees’

claims.

       {¶2} CMHA presents three interrelated assignments of error. CMHA argues that

the trial court both abused its discretion in granting, and lacked jurisdiction to grant,

appellees’ motion. Upon a review of the record, this court disagrees. The trial court’s

order, consequently, is affirmed.

       {¶3} The underlying facts of this case previously were set forth in Dickerson v.

Cleveland Metro. Housing Auth., 8th Dist. No. 96726, 2011-Ohio-6437 (“Dickerson I”).

In pertinent part, this court stated as follows:

               In September 2009, plaintiffs-appellees, J’Lexxys Dickerson, et al.
       (“Dickerson”), filed suit against CMHA. Dickerson alleges that CMHA
       was guilty of negligent, willful, wanton, and/or reckless misconduct in
       failing to maintain its premises, and failing to warn occupants of known
       and/or hidden dangers, pitfalls, obstructions, or defects on its premises,
       resulting in the injury suffered by Dickerson, a minor child. This claim
       stems from a laundry pole that fell and injured the child’s hand. In
       addition, Dickerson’s parents are parties to the suit, claiming loss of
       consortium and financial loss.

       On March 7, 2011, CMHA filed a motion for leave to file a motion for summary
judgment instanter, with its motion for summary judgment attached. The motion for
leave was granted, and the motion for summary judgment was accepted as filed on March
7, 2011. More than 30 days later, on April 18, 2011, Dickerson filed a motion to extend
the time to respond to CMHA’s motion for summary judgment pursuant to Civ.R. 56(F).
On April 19, 2011, the trial court granted summary judgment for CMHA. On April 20,
2011, the court denied Dickerson’s motion to extend time to respond. On April 21, 2011,
the court sua sponte vacated its order granting summary judgment in favor of CMHA,
without any explanation.

      CMHA now appeals, raising three assignments of error.

       In its first assignment of error, CMHA argues that the trial court erred when it sua
sponte vacated its prior entry of summary judgment in favor of CMHA. Dickerson
argues that the trial court properly vacated the order granting summary judgment pursuant
to Civ.R. 60(A) or, in the alternative, properly vacated the order because it was void.

      The authority to vacate its own void judgment constitutes an inherent power
possessed by Ohio courts. * * *

       However, as a general rule, a trial court has no authority to vacate or modify its
final orders sua sponte. * * * Since the adoption of the Civil Rules, * * * Civ.R. 60(B)
provides the exclusive means for a trial court to vacate a final judgment.

      ***

        In the instant case, Dickerson failed to respond to CMHA’s motion for summary
judgment within the 30 days allowed under Loc.R. 11. Dickerson failed to reply despite
having been specifically alerted to the 30-day deadline in the court’s journal entry in
which the court accepted CMHA’s motion for summary judgment. The entry specified
that Dickerson’s response must be filed in accordance with Loc.R. 11. Moreover, in
addition to failing to timely oppose summary judgment, Dickerson also failed to timely
file a motion seeking more time.

       Dickerson defends her lack of response, claiming that the trial court granted her an
extension, pursuant to Civ.R. 56(F), during a March 22, 2011 phone conference.
However, despite three separate entries for March 22 [, 2011] on the docket regarding
scheduling a pretrial and trial date, there is no mention on the docket of any extension
granted to Dickerson or any earlier request for an extension. It is well-settled that a
court speaks through its journal entries.

      ***

      * * * [W]e find that the trial court erred in sua sponte vacating its order granting
summary judgment. Having granted the motion for summary judgment and subsequently
denying the motion to extend time pursuant to Civ.R. 56(F), the trial court lacked
       jurisdiction to vacate the order granting summary judgment. Moreover, we find no
       evidence in the record to establish that the court’s entry granting summary judgment is
       void or that it was subject to a Civ.R. 60(B) motion prior to the trial court’s vacating the
       summary judgment. Thus, the trial court had no authority to sua sponte vacate a final
       judgment. Accordingly, CMHA’s first assignment of error is sustained.

             Having sustained the first assignment of error, we need not address the remaining
       two assignments of error because they are now moot.

              Judgment reversed and case remanded to reinstate the final judgment granting

       summary judgment for CMHA. Id., at ¶ 2-22 [Footnotes and citations omitted; emphasis

       added.]

       {¶4} This case returned to the trial court in December 2011. On December 23, 2011, appellees

filed a Civ.R. 60(B) motion for relief from the final order of summary judgment in CMHA’s favor.

Appellees argued that, based upon the court’s indication that it entered the order by mistake, they relied

on the trial court’s authority to vacate that order. Appellees further argued they had a meritorious

claim to pursue against CMHA.

              {¶5} Appellees supported their motion by attaching the affidavit of their attorney.

       In relevant part, appellees’ attorney’s averments included the following.

              (1) CMHA’s motion for summary judgment had relied upon evidence not

       previously disclosed to appellees, to wit: the affidavit of a non-divulged insurance

       adjuster and the location of “the metal pole that amputated the left hand of the then 5 year

       old minor plaintiff.” (Emphasis added.)

              (2) Appellees’ attorney had not had the opportunity to engage in new discovery

       related to the foregoing matters.

              (3) The trial court conducted a telephone conference on March 22, 2011, with both
CMHA’s counsel and appellees’ counsel, directed that counsel complete discovery, and

stated that it would schedule another pretrial hearing for May 25, 2011; a portion of the

discussion, however, was not set forth in the March 22, 2011 journal entry.

       (4) Despite the telephone conference, CMHA’s counsel wrote a letter to the court

dated April 14, 2011, seeking a ruling on his client’s motion for summary judgment.

       (5) Although appellees filed a Civ.R. 56(F) motion on April 18, 2011, the trial

court issued an order on April 19, 2011, that granted CMHA’s motion for summary

judgment.

       (6) The trial court judge realized on April 20, 2011, that the order granting CMHA

summary judgment was entered in error and attempted to reverse the order, but, pursuant

to the decision in Dickerson I, the court could not sua sponte do so; therefore, Civ.R.

60(B) relief was appropriate.

       {¶6} CMHA filed a brief in opposition to appellees’ Civ.R. 60(B) motion. CMHA

argued that appellees’ motion should be denied for several reasons, viz., (1) appellees’

motion was an improper substitute for their failure to appeal from the order reviewed in

Dickerson I; (2) the argument appellees raised in their motion about “mistake” was barred

by the doctrine of the law of the case; (3) appellees failed to demonstrate Civ.R. 60(B)(1)

“excusable neglect” because they did not comply with the trial court’s journal entry

regarding the discovery deadline; and, (4) because Dickerson I reversed the trial court’s

April 21, 2011 order that vacated the previous summary judgment in CMHA’s favor,

appellees’ arguments relating to the reasons the trial court issued that order were “moot.”
       {¶7} CMHA attached the affidavit of its attorney to its brief. For the most part,

the averments of CMHA’s attorney did not directly address the merits of appellees’

motion.

       {¶8} On February 10, 2012, the trial court issued an opinion and order that granted

appellees’ Civ.R. 60(B) motion. The trial court stated it had made three mistakes that led

appellees’ counsel to rely on the propriety of the April 20, 2011 order, which was the

order from which CMHA appealed in Dickerson I.              First, the trial court failed to

journalize its March 22, 2011 decision to allow appellees additional time to conduct

discovery. Second, the trial court erroneously entered an order denying appellees’ Civ.R.

56(F) request for additional time to respond to CMHA’s motion for summary judgment.

Third, on April 19, 2011, the trial court inappropriately entered an order that granted

summary judgment to CMHA. Based upon the foregoing, the trial court determined that

appellees were entitled to relief pursuant to Civ.R. 60(B)(1).

       {¶9} CMHA appeals from the trial court’s decision with three assignments of error

that are set forth exactly as they appear in CMHA’s appellate brief.

       “I.    The trial court erred, to the prejudice of Appellant, Cuyahoga

Metropolitan Housing Authority When it granted Plaintiffs-Appellees’ Motion to

vacate its order of April 19, 2011.

       “II.   The trial court erred, to the prejudice of Appellant, Cuyahoga

Metropolitan Housing Authority when it granted Plaintiffs-Appellees’ Motion to

Vacate its Order of March 22, 2011.
       “III.    The trial court erred, to the prejudice of Appellant, Cuyahoga

Metropolitan Housing Authority when it granted Plaintiffs-Appellees’ Motion to

Vacate its Order of April 21 [sic], 2011.”

       {¶10} Because CMHA’s arguments with respect to these assignments of error are

interrelated in its appellate brief,1 this court will address them together.

       {¶11} CMHA essentially argues that the trial court’s decision to grant appellees

relief from the final judgment in CMHA’s favor was improper for the following reasons:

(1) appellees used their motion as a substitute for a timely appeal of the April 19, 2011

order, (2) appellees did not sustain their Civ.R. 60(B) burden, and (3) the trial court

lacked authority to vacate orders that this court reviewed in Dickerson I. On the facts of

this case, this court disagrees.

       {¶12} Civ.R. 60 states in relevant part:

             (B) Mistakes; inadvertence; excusable neglect; newly discovered
       evidence; fraud; etc.

              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; * * * . 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. A motion under this subdivision (B) does
       not affect the finality of a judgment or suspend its operation.

       {¶13} A trial court’s decision to grant or deny a motion for relief from judgment



       1In fact, CMHA’s appellate brief contains a hodgepodge of arguments with
respect to the assignments of error and thus barely conforms with the requirements
of App.R. 16(A)(3), (4), and (7).
pursuant to Civ.R. 60(B) lies within its sound discretion of the trial court, thus, the

decision will not be disturbed absent an abuse of discretion. Strack v. Pelton, 70 Ohio

St.3d 172, 174, 637 N.E.2d 914 (1994). An abuse of discretion is more than an error of

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

its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

An abuse of discretion demonstrates “perversity of will, passion, prejudice, partiality, or

moral delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d

748 (1993). When applying this standard, the appellate court may not substitute its

judgment for that of the trial court. Id.

       {¶14} 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 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, 351 N.E.2d 113

(1976), paragraph two of the syllabus. Because 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. Strack, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994).

       {¶15} CMHA argues that appellees failed to satisfy the first two prongs, and that

they simply used their motion as a substitute for a timely appeal from the April 19, 2011
order of summary judgment.2 Citing, among other authority, this court’s decision in Roe

v. Cleveland, 8th Dist. No. 69248, 1996 Ohio App. LEXIS 397 (Feb. 8,1996), CMHA

contends that the trial court’s mistakes could not serve as a proper basis for a Civ.R.

60(B)(1) motion.

      {¶16} More recently than Roe in addressing such an argument, this court made the

following observations in Blatt v. Meridia Health Sys., 8th Dist. No. 89074,

2008-Ohio-1818, ¶ 10-12:

             To the extent that Blatt alleged that the trial court made a “mistake”
      in granting summary judgment, this is not the type of “mistake”
      contemplated under Civ.R. 60(B)(1): “a motion for relief from judgment
      cannot be predicated upon the argument that the trial court made a mistake
      in rendering its [final] decision * * *.” Henderson v. Rosewicz, 8th Dist.
      No. 80038, 2002-Ohio-1266, citing Doe v. Trumbull Cty. Children Services
      Bd. (1986), 28 Ohio St.3d 128, 131, 28 Ohio B. 225, 502 N.E.2d 605; see,
      also, Vidovic v. Vidovic, 8th Dist. No. 81647, 2003-Ohio-1842 (“Civ.R.
      60(B) is not a viable means to attack legal errors made by a trial court”);
      Gold Touch, Inc. v. TJS Lab., Inc. (1998), 130 Ohio App.3d 106, 110-111,
      719 N.E.2d 629 (failure to consider a brief is not the type of mistake
      contemplated by Civ.R. 60(B)); Argen v. Union Savings Ass’n (June 3,
      1982), 8th Dist. No. 43887, 1982 Ohio App. LEXIS 12117 (Civ.R. 60(B)
      motion is not the proper vehicle for challenging trial court’s grant of
      summary judgment on the basis that genuine issues of material fact exist).
      Rather, the rule is intended to address the mistake or inadvertence of
      parties or their agents. See Hankinson v. Hankinson, 7th Dist. No.
      03MA7, 2004-Ohio-2480, at P20, citing May v. Dep’t of Hwy. Safety (June
      13, 1995), 10th Dist. No. 94API12-1743, 1995 Ohio App. LEXIS 2470.

      Second, Blatt’s arguments challenging the trial court’s grant of summary judgment

      2 CMHA    further argues specifically, for the first time, that the trial court
erred in vacating an award of summary judgment in its favor on appellees’
spoliation claim. Because this argument was not presented in the trial court, this
court will not address it. Schade v. Carnegie Body Shop, 70 Ohio St.2d 207, 210,
436 N.E.2d 1001 (1982).
      should have been raised on direct appeal. See, Fairbanks Capital Corp. v. Richards, 8th
      Dist. No. 86173, 2006-Ohio-102, at P5, citing Kelley v. Lane, 103 Ohio St.3d 432,
      2004-Ohio-5582, at P3, 816 N.E.2d 599. It is well-settled that a motion for relief from
      judgment cannot be used as a substitute for appeal, even when the Civ.R. 60(B) motion is
      filed within the period for a timely appeal. Id.; Wilson v. Wilson, 8th Dist. No. 86817,
      2006-Ohio-4261, at P22; Smith v. Bd. of Health (June 28, 1993), 4th Dist. No.
      92CA-2095, 1993 Ohio App. LEXIS 3467. Here, rather than filing a direct appeal from
      the trial court’s final judgment granting summary judgment, Blatt erroneously seeks
      review of the trial court’s judgment through her Civ.R. 60(B) motion, which does not
      allow for such relief. Doe, 28 Ohio St.3d at 131; Blasco v. Mislik (1982), 69 Ohio St.2d
      684, 686, 433 N.E.2d 612.

             Thus, because Blatt’s motion for relief from judgment solely challenged the trial
      court’s reasoning and alleged legal errors—issues which should have been raised on a
      direct appeal—and because it failed to satisfy any of the grounds for relief under Civ.R.
      60(B)(1)-(5), we cannot say that the trial court abused its discretion in denying the motion.
       (Emphasis added.)

      {¶17} The situation presented in this case, however, is different. In their Civ.R. 60(B)(1) motion

seeking relief from the April 19, 2011 order of summary judgment in CMHA’s favor, appellees were

not actually challenging any “legal or factual” mistakes the trial court made in entering the April 19,

2011 order. Culgan v. Miller, 9th Dist. No. 10CA0074-M, 2011-Ohio-6194. Nor were they seeking

review of the trial court’s legal reasoning for the order granting summary judgment to CMHA.

Henderson v. Rosewicz, 8th Dist. No. 80038, 2002-Ohio-1266.

             {¶18} Instead, appellees’ attorney explained his reasons for relying upon the

      validity of the trial court’s April 21, 2011 decision to vacate the order of April 19, 2011.

      This distinction is important. In Dickerson I, the appellees defended the trial court’s

      April 21, 2011 order, arguing that the trial court’s April 19, 2011 order was either “a

      blunder in execution” or void rather than a legitimate final order. Id., ¶ 5. This court’s

      decision to the contrary required twenty-one paragraphs of explanation. Id.
      {¶19} Appellees’ counsel’s affidavit demonstrated that his defense of the trial

court’s void order of April 21, 2011 constituted “excusable neglect” that justified relief

from the April 19, 2011 order.       Hiener v. Moretti, 11th Dist. No. 2009-A-0001,

2009-Ohio-5060 (trial court properly granted relief from default judgment erroneously

entered after party “appeared” in the action); compare Jones v. Gayhart, 2d Dist. No.

21838, 2007-Ohio-3292 (no excusable neglect when appellants’ attorney missed a filing

deadline). Therefore, counsel’s affidavit demonstrated that appellees’ Civ.R. 60(B)(1)

motion was not being used as a substitute for a timely appeal from the order of summary

judgment in CMHA’s favor.

      {¶20} Counsel’s affidavit also demonstrated that appellees had a meritorious claim

to pursue against CMHA.      Moore v. Emmanuel Fam. Training Ctr., 18 Ohio St.3d 64,

479 N.E.2d 879 (1985). As the Supreme Court noted in Colley v. Bazell, 64 Ohio St.2d

243, 249, 416 N.E.2d 605 (1980):

              In our view, the concept of “excusable neglect” must be construed in
      keeping with the proposition that Civ. R. 60(B)(1) is a remedial rule to be
      liberally construed, while bearing in mind that Civ. R. 60(B) constitutes an
      attempt to “strike a proper balance between the conflicting principles that
      litigation must be brought to an end and justice should be done.” 11 Wright
      & Miller, Federal Practice & Procedure 140, Section 2851, quoted in
      Doddridge v. Fitzpatrick (1978), 53 Ohio St. 2d 9, 12.

      {¶21} Under the circumstances presented in this case, therefore, the trial court did

not abuse its discretion in granting appellees’ motion for relief from the April 19, 2011

order granting summary judgment in CMHA’s favor.

      {¶22} CMHA further argues that, pursuant to the “law of the case” doctrine, this
court’s decision in Dickerson I precluded the trial court from disturbing any of its

previous orders. This argument is rejected.

       {¶23} Dickerson I determined that the trial court lacked authority to sua sponte

reverse a final order; thus, the order of summary judgment in CMHA’s favor was

“reinstated.” This court further indicated to the trial court, however, that a properly

presented Civ.R. 60(B) motion bestowed authority on the trial court to correct a

“substantive” error. Id., ¶ 11.

       {¶24} Because appellees’ Civ.R. 60(B)(1) motion invoked the trial court’s

jurisdiction to review its final order, as impliedly permitted by the decision in Dickerson

I, the law of the case doctrine is inapplicable. Ford Motor Credit Co. v. Cunningham, 2d

Dist. No. 20341, 2004-Ohio-6226.

       {¶25} CMHA’s assignments of error are overruled.

       {¶26} The trial court’s opinion and order granting relief to appellees from the order

of summary judgment in CMHA’s favor is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
___________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR
