[Cite as Moore v. Moore, 2018-Ohio-1545.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                      ERIE COUNTY


Diane J. Moore                                  Court of Appeals Nos. E-17-011

        Appellee                                Trial Court Nos. 2015-DR-0064

v.

Gerry L. Moore                                  DECISION AND JUDGMENT

        Appellant                               Decided: April 20, 2018


                                            *****

        Robert M. Reno, for appellee.

        Amanda A. Andres, for appellant.

                                            *****


        JENSEN, J.
        {¶ 1} Defendant-appellant, Gerry L. Moore, appeals the February 10, 2017

judgments of the Erie County Court of Common Pleas, Domestic Relations Division,

denying his motions to vacate judgment and for a new trial. For the reasons that follow,

we affirm.
                                        I. Background

       {¶ 2} Gerry L. Moore (“Gerry”) and Diane J. Moore (“Diane”) were married on

March 30, 1996. On May 1, 2015, Diane filed a complaint for divorce in the Erie County

Court of Common Pleas, Domestic Relations Division. Gerry filed a counterclaim for

legal separation or, in the alternative, divorce. On September 12, 2016, a hearing was

held relative to the distribution of their assets.

       {¶ 3} On September 23, 2016, Diane filed proposed findings of fact and

conclusions of law. Gerry moved for an extension of time to do the same. The motion

was granted, but Gerry never submitted his own proposed findings of fact and

conclusions of law. The magistrate issued a decision dated November 4, 2016. That

decision was a verbatim recitation of the findings and conclusions proposed by Diane.

       {¶ 4} Gerry filed non-specific objections to the magistrate’s decision, claiming

that the decision was contrary to law, against the manifest weight of the evidence, and an

abuse of discretion, but he filed no brief in support of his objections, no argument, and no

record or case citations. He sought an extension of time by which to supplement his

objections, file a transcript of the hearing, and prepare a brief in support of his objections.

On November 21, 2016, the magistrate granted Gerry an extension of time to file the

transcript and, thereafter, 30 days within which to file his brief in support of his

objections, along with any supplemental objections. Diane moved the court for an order

specifying the date by which Gerry must file the transcript. The magistrate set a date of

December 30, 2016.



2.
       {¶ 5} A court reporter’s certification was filed on December 7, 2016, indicating

that the transcript had been ordered and that it would take 90 days to prepare it. The

certification was dated November 21, 2016. On December 8, 2016, Gerry’s trial counsel

moved to withdraw from the case because she had been terminated by her client. Her

motion was granted on December 13, 2016. A new attorney entered an appearance for

Gerry on December 28, 2016.

       {¶ 6} The transcript was not filed on December 30, 2016, and no motion for an

extension was filed with the court. In a judgment entry journalized on January 19, 2017,

the trial court approved the magistrate’s decision in its entirety. In its judgment, the court

summarized the procedural posture of the case relative to Gerry’s objections and to his

request for an extension of time to obtain the transcript. The court apparently had been

apprised of the circumstances relative to efforts to obtain the transcript. It described the

circumstances as follows:

              On December 12, 2016 [the court reporter] received a telephone call

       from [Gerry’s former attorney] to the effect that [she] was in the process of

       withdrawing from Gerry’s representation [and] no longer had any need for

       a transcript. [The court reporter] thereupon ceased working upon the same.

       On December 13, 2016, [Gerry’s former counsel’s] motion to withdraw

       was granted. Nothing further transpired until December 27 or perhaps 28,

       2016. On one of those two dates, Gerry’s son * * * paid a visit to [the court

       reporter’s] office wishing to pay a deposit to her for the purpose of having a



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      transcript prepared. [She] refused to accept money because she had been

      told by [Gerry’s former counsel] that a transcript would not be needed.

      * * * On December 28, 2016, [Gerry’s new attorney] entered her

      appearance * * *. On December 30, 2016 [she] spoke with [the court

      reporter] over the telephone indicating that she would be in need of a

      transcript; [she] explained she would send [Gerry’s son] back to [her] office

      with a deposit. [She] also indicated to [the court reporter] that [she] would

      be filing a motion seeking an extension of the December 30, 2016 deadline.

      No such motion was ever filed. December 30, 2016, has come and gone

      and the Court still has no transcript of the proceedings [Gerry] wishes the

      court to review.

      {¶ 7} On January 27, 2017, Gerry filed (1) a motion for extension of time to file

transcripts, (2) a motion to vacate judgment under Civ.R. 60(B), and (3) a motion for a

new trial under Civ.R. 59(A). The trial court denied all three motions in orders

journalized on February 10, 2017. Gerry appealed the trial court judgments denying his

motions to vacate judgment and for a new trial.1 He assigns the following errors for our

review:

             ASSIGNMENT OF ERROR I




1
 Gerry also sought review of the January 19, 2017 judgment, but his notice of appeal was
dismissed as not timely-filed.

4.
              THE TRIAL COURT ERRED IN DENYING APPELLANT’S CIV.R. 59

       MOTION FOR NEW TRIAL.

              ASSIGNMENT OF ERROR IV [sic]

              THE TRIAL COURT ERRED IN DENYING APPELLANT’S RULE 60(B)

       MOTION WHEN APPELLANT’S PRIOR COUNSEL FAILED TO FILE PROPOSED

       FINDINGS OF FACTS AND CONCLUSIONS OF LAW AND PRODUCE OBJECTIONS

       TO THE MAGISTRATE’S FINDINGS OF FACTS AND CONCLUSIONS OF LAW,

       EVEN THOUGH APPELLANT’S [sic] HAD REQUESTED THE SAME.

                                  II. Law and Analysis

       {¶ 8} The factual bases for Gerry’s motions for a new trial and to vacate judgment

are essentially the same. First, he claims that his trial counsel never provided him with a

copy of Diane’s proposed findings of fact and conclusions of law, and he says he did not

see them until he hired his current counsel.2 He insists that they were “littered with

inaccuracies and failed to take into consideration a number of the parties’ marital assets.”

He maintains that he “never was afforded the opportunity to provide the Court with his

version of events as to what the evidence truly showed at the time of trial based upon his

Counsel’s failure to file [proposed findings of fact and conclusions of law].”

       {¶ 9} Second, Gerry maintains that he believed that the trial transcript had been

ordered and was being prepared, but shortly after hiring new counsel, it was discovered


2
  Gerry was incarcerated during the majority of these proceedings after kidnapping and
attempting to shoot Diane. He entered a plea of guilty on April 14, 2016, to felonious
assault, kidnapping, failure to comply with the order of a police officer, and inducing
panic, along with firearms specifications on the kidnapping and felonious assault charges.
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that the court reporter had not been paid, thus the transcript was not being prepared. He

says that upon learning that the court reporter hadn’t been paid, his new attorney

immediately directed his son to pay the court reporter.

       {¶ 10} Third, Gerry contends that his trial counsel provided ineffective assistance

of counsel based on her “inability to (a) present the evidence substantially; (b) present

relevant evidence; (c) question witnesses; and (d) submit findings of fact and conclusions

of law.” He says that her ineffective assistance persisted through all phases of the

litigation.

       {¶ 11} Diane maintains that the lower court proceedings were conducted fairly and

properly. She claims that Gerry is responsible for his own situation which was

complicated by the fact that he (1) hired and fired multiple attorneys, and (2) was

imprisoned during the course of the litigation for crimes he perpetrated against her. She

submits that the magistrate considered the evidence and testimony offered by both parties

at the September 12, 2016 hearing, but ultimately believed Diane. And she points out

that after learning that the request for the transcript had been canceled, Gerry waited until

after judgment was entered on January 19, 2017, to request an extension of time. Diane

submits that under the circumstances of this case, Gerry cannot establish the grounds for

a new trial under Civ.R. 59(A) or for a motion to vacate judgment under Civ.R. 60(B).

                   A. The motion for new trial was properly denied.

       {¶ 12} Gerry claims that the January 19, 2017 trial court judgment and the

underlying magistrate’s decision were based on erroneous facts and are contrary to law.

He insists that if he had been afforded sufficient counsel, he would have submitted his

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own proposed findings of fact and conclusions of law. Gerry suggests that the

magistrate’s findings and conclusions would have been different had he done so.

      {¶ 13} Under Civ.R. 59(A), a new trial may be granted upon any of the following

grounds:

               (1) Irregularity in the proceedings of the court, jury, magistrate, or

      prevailing party, or any order of the court or magistrate, or abuse of

      discretion, by which an aggrieved party was prevented from having a fair

      trial;

               (2) Misconduct of the jury or prevailing party;

               (3) Accident or surprise which ordinary prudence could not have

      guarded against;

               (4) Excessive or inadequate damages, appearing to have been given

      under the influence of passion or prejudice;

               (5) Error in the amount of recovery, whether too large or too small,

      when the action is upon a contract or for the injury or detention of property;

               (6) The judgment is not sustained by the weight of the evidence * *

      *;

               (7) The judgment is contrary to law;

               (8) Newly discovered evidence, material for the party applying,

      which with reasonable diligence he could not have discovered and

      produced at trial;



7.
              (9) Error of law occurring at the trial and brought to the attention of

       the trial court by the party making the application.

              In addition to the above grounds, a new trial may also be granted in

       the sound discretion of the court for good cause shown.

       {¶ 14} The standard of review of a trial court judgment denying a motion for new

trial under Civ.R. 59(A) depends on the ground for such motion. A motion for new trial

brought under Civ.R. 59(A)(1), (2), (3), (4), (5), (6), or (8) is reviewed for an abuse of

discretion. Gateway Consultants Group, Inc. v. Premier Physicians Ctrs., Inc., 8th Dist.

Cuyahoga No. 104014, 2017-Ohio-1443, ¶ 12, 13; Johnson v. Johnson, 5th Dist. Stark

No. 2015CA00076, 2015-Ohio-4748, ¶ 16-17; GMS Mgt. Co. v. Coulter, 11th Dist. Lake

No. 2005-L-071, 2006-Ohio-1263, ¶ 20-21. A motion for new trial brought under Civ.R.

59(A)(7) or (9), is reviewed de novo. Gateway Consultants Group at ¶ 12, 22.

       {¶ 15} Although not specifically identified in his brief, Gerry sought a new trial in

the lower court under Civ.R. 59(A)(1), (6), (7), (8), and (9). Central to his argument

under each of these provisions is his contention that his trial counsel was ineffective.

       {¶ 16} Ohio courts recognize that “[i]n the context of civil cases, a party may not

obtain a new trial based upon an assertion that his or her attorney was ineffective.”

Schmidt v. Worthington, 5th Dist. Perry No. 11 CA 1, 2011-Ohio-4088, ¶ 22; Sexton v.

Haines, 5th Dist. Delaware No. 2010-CA-090067, 2011-Ohio-3531, ¶ 16. In Goldfuss v.

Davidson, 79 Ohio St.3d 116, 122, 1679 N.E.2d 1099 (1997), the Ohio Supreme Court

discussed the rationale for this holding. It explained that parties in civil litigation choose

their own counsel and, therefore, bear the responsibility for their attorney’s choices in

8.
prosecuting and defending claims. Id. The court reasoned that to allow a new trial based

on an assertion of ineffective assistance of counsel “would unfairly shift the loss caused

by poor strategy decisions, miscalculations, or errors from the party responsible to the

innocent opponent.” Id.

       {¶ 17} Here, Gerry’s motion for new trial was wholly based on what he claimed

were errors of counsel. While he submits generally that the judgment is not sustained by

the weight of the evidence, is contrary to law, and contains errors of law, his only

explanation for these contentions is that his attorney was ineffective in presenting

evidence on his behalf. Accordingly, we find that the trial court properly denied his

motion.

       {¶ 18} We find Gerry’s first assignment of error not well-taken.

               B. The motion to vacate judgment was properly denied.

       {¶ 19} As with his motion for a new trial, Gerry’s motion to vacate is premised on

his trial counsel’s purported errors in failing to file proposed findings of fact and

conclusions of law, failing to file timely objections to the magistrate’s decision, and

failing to “properly represent him.” He argues that under Civ.R. 60(B)(1)(2), and (5), the

judgment should be vacated.

       {¶ 20} Under Civ.R. 60(B), a party may be relieved from a final judgment for the

following reasons:

              (1) mistake, inadvertence, surprise or excusable neglect;

              (2) newly discovered evidence which by due diligence could not

       have been discovered in time to move for a new trial under Rule 59(B);

9.
              (3) fraud (whether heretofore denominated intrinsic or extrinsic),

       misrepresentation or other misconduct of an adverse party;

              (4) the judgment has been satisfied, released or discharged, or a

       prior judgment upon which it is based has been reversed or otherwise

       vacated, or it is no longer equitable that the judgment should have

       prospective application; or

              (5) any other reason justifying relief from the judgment.

       {¶ 21} The Supreme Court of Ohio has held that to prevail on a motion for relief

from judgment under Civ.R. 60(B), the moving party must demonstrate: “(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.” GTE Automatic Electric, Inc. v. Arc Industries, Inc.,

47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. We review a

trial court judgment denying a motion for relief from judgment under an abuse of

discretion standard. Kerger & Hartman, LLC v. Ajami, 6th Dist. Lucas No. L-16-1135,

2017-Ohio-7352, ¶ 13. An abuse of discretion connotes that the trial court’s attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶ 22} To prove a meritorious defense under the first element of GTE Automatic

Electric, “a movant must provide operative facts which, if true, would constitute a

meritorious defense; ultimate success on the merits need not be established.” Kerger &



10.
Hartman, LLC at ¶ 16, citing K. Ronald Bailey & Assocs. v. Martin, 6th Dist. Erie No. E-

08-057, 2009-Ohio-2932, ¶ 15. “Broad, conclusory statements do not satisfy the

requirement that a Civ.R. 60(B) motion must be supported by operative facts that would

warrant relief from judgment.” Aurora Loan Servs., LLC v. Wilcox, 2d Dist. Miami No.

2009 CA 9, 2009-Ohio-4577, ¶ 14. In his motion in the trial court, Gerry offered no

operative facts which, if true, would constitute a meritorious claim or defense. He,

therefore, failed to satisfy the first GTE element.

       {¶ 23} As to the second GTE element, Gerry contends only that his counsel was

ineffective. Ohio courts hold that the neglect of a party’s attorney generally will be

imputed to the party and is not a proper basis to support a motion to vacate judgment

under Civ. R. 60(B)(1) or (5). Argo Plastic Prods. Co. v. Cleveland, 15 Ohio St.3d 389,

474 N.E.2d 328 (1984), syllabus; Charles v. Anthony, 10th Dist. Franklin No. 92AP-51,

1992 Ohio App. LEXIS 4769, *17-19 (Sep. 15, 1992); Cornett v. Cornett, 2d Dist.

Greene No. 2016-CA-7, 2016-Ohio-7902, ¶ 12, 14. As such, “granting relief from a

judgment due to an attorney’s misconduct would contradict the purpose of Civ. R. 60(B)

- to afford relief in the interests of justice.”3 Chapman v. Chapman, 2d Dist.

Montgomery No. 21244, 2006-Ohio-2328, ¶ 17. Accordingly, Gerry has not established

any of the grounds stated in Civ. R. 60(B)(1) through (5), and, therefore, has failed to



3
 Gerry offers no explanation why Civ.R. 60(B)(2) may be applicable here. He also
offers no explanation for the failure to seek an additional extension of time between
December 28, 2016 (when it was learned that the transcript was not being prepared) and
January 19, 2017 (when judgment was entered).

11.
satisfy the second GTE element. The trial court properly denied his motion to vacate

judgment.

       {¶ 24} We find Gerry’s second assignment of error not well-taken.

                                     III. Conclusion

       {¶ 25} The trial court properly denied Gerry’s motions to vacate judgment and for

a new trial. We, therefore, find Gerry’s two assignments of error not well-taken, and we

affirm the February 10, 2017 judgments of the Erie County Court of Common Pleas,

Domestic Relations Division. Gerry is ordered to pay the costs of this appeal under

App.R. 24.

                                                                      Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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