2019 Ohio 2096
Ohio Ct. App.2019Background
- Ronald D. Jones obtained an ex parte temporary civil stalking protection order (CSPO) against Kevin M. Fowler on June 8, 2018; after a full hearing the magistrate issued a five-year CSPO on June 13, 2018 and the trial court adopted that judgment the same day.
- The CSPO included a 1,000-foot no-contact/distance provision and the order was labeled final and appealable.
- Fowler filed a notice of intent to file objections and ordered the transcript on June 15, 2018, but never filed written objections nor requested an extension.
- On August 30, 2018 Fowler moved for relief from judgment under Civ.R. 60(B), asserting: (1) fraud/perjured testimony by Jones and witnesses, (2) a mistake of fact in the magistrate’s interpretation of video evidence, and (3) newly discovered evidence in the form of testimony from his grandsons who had been covered by the ex parte order.
- The trial court denied Fowler’s Civ.R. 60(B) motion as unsupported and because he failed to file objections; Fowler appealed and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Jones) | Defendant's Argument (Fowler) | Held |
|---|---|---|---|
| 1. Whether Fowler preserved appellate review by filing a notice of intent to file objections | The CSPO procedures require timely, written objections under Civ.R. 65.1(F)(3)(d); a notice of intent is not sufficient to preserve objections or toll appeal deadlines | Notice of intent to file objections (and ordering transcript) preserved Fowler’s right/time to file objections; therefore objections could later be filed or raised in a 60(B) motion | A notice of intent is not equivalent to filing objections; Fowler’s failure to file objections (or seek extension) meant the court properly refused to address those arguments and appealability was unaffected. |
| 2. Whether Fowler is entitled to relief under Civ.R. 60(B) based on fraud, mistake of fact, or newly discovered evidence | The magistrate relied on false testimony and misread video evidence; grandsons were unavailable to testify due to the ex parte order, so their evidence is newly discovered/unavailable at hearing | Assertions were unsupported by operative facts or transcript; alleged mistakes of fact are appealable errors, not Civ.R. 60(B)(1) grounds; Fowler never sought permission to call grandsons or to supplement evidence | Denial affirmed: Fowler failed to present operative facts to support fraud; mistake-of-fact claim does not fit Civ.R. 60(B)(1) and is subject to appeal/res judicata; grandsons’ testimony was not “newly discovered” within Civ.R. 60(B)(2) because Fowler did not seek court permission or otherwise preserve that evidence. |
Key Cases Cited
- GTE Automatic Elec., Inc. v. ARC Indus., 47 Ohio St.2d 146 (1976) (sets the three-part test for relief under Civ.R. 60(B))
- Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (1988) (movant must present operative facts to warrant a 60(B) hearing)
- Adomeit v. Baltimore, 39 Ohio App.2d 97 (1974) (movant bears burden to present sufficient factual information for 60(B) relief)
- State v. Szefcyk, 77 Ohio St.3d 93 (1996) (res judicata bars claims or defenses that could have been raised at trial)
- State v. Ferranto, 112 Ohio St. 667 (1925) (defines abuse of discretion concept)