2019 Ohio 1962
Ohio2019Background
- In 2011 Dennis Calo and two co-plaintiffs sued in the Tenth District seeking writs of mandamus, arguing that parole-regulation schedules in force when they were sentenced (pre‑July 1, 1996) required more frequent parole consideration than the rules in effect when they sued.
- The magistrate recommended dismissal, concluding past missed hearings could not be remedied by mandamus and plaintiffs were not entitled to annual future hearings; the Tenth District adopted the magistrate’s decision and dismissed.
- This court affirmed the dismissal in State ex rel. Richard v. Mohr.
- In 2013 the relators sought Civ.R. 60(B) relief from the Tenth District judgment alleging fraud on the court; the court denied that motion.
- In August 2018 Calo filed a second Civ.R. 60(B) motion raising the same arguments as his 2013 motion; the Tenth District denied the motion as barred by res judicata.
- Calo appealed; the State moved to dismiss the appeal, and Calo filed several procedural motions (recusal, striking briefs, judicial notice) which the Supreme Court considered and denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a second Civ.R. 60(B) motion raising the same grounds as a prior 60(B) is allowable | Calo renewed his prior claims of fraud on the court and entitlement to relief | DRC argued res judicata bars successive motions and relief is not proper via mandamus | Court affirmed denial: successive 60(B) motion barred by res judicata |
| Whether the appeal should be dismissed for lack of jurisdiction because relator seeks release | Calo sought relief from the judgment; impliedly asked for relief that might affect confinement | DRC argued the appeal is meritless and seeks inappropriate relief | Court denied motion to dismiss the appeal (issues go to merits, not jurisdiction) |
| Whether Calo’s procedural motions (disqualify AGO counsel; recusal responses; strike brief; judicial notice) had merit | Calo alleged collusion, procedural defects, and submitted purported facts for judicial notice | DRC/State opposed; no supporting evidence cited; facts were disputed or untimely | Court denied all Calo’s motions for lack of evidence, timeliness, or procedural basis |
| Standard for granting Civ.R. 60(B) relief | Calo relied on alleged fraud and other grounds under Civ.R. 60(B) | DRC relied on requirement that movant show meritorious claim, entitlement under 60(B)(1)-(5), and timeliness; also res judicata against repeated claims | Court applied the three-part Rose test and affirmed the Tenth District’s discretionary denial |
Key Cases Cited
- State ex rel. Richard v. Mohr, 135 Ohio St.3d 373 (2013) (court previously affirmed dismissal of relators’ mandamus action)
- State ex rel. Jackson v. Ohio Adult Parole Auth., 140 Ohio St.3d 23 (2014) (explains requirements to prevail on Civ.R. 60(B) in mandamus context)
- Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (1988) (three-part test for Civ.R. 60(B) relief)
- Coulson v. Coulson, 5 Ohio St.3d 12 (1983) (successive motions based on same grounds are barred)
- State ex rel. Wilson-Simmons v. Lake Cty. Sheriff’s Dept., 82 Ohio St.3d 37 (1998) (res judicata is an affirmative defense and does not deprive a court of jurisdiction)
- AP Hotels of Illinois, Inc. v. Franklin Cty. Bd. of Revision, 118 Ohio St.3d 343 (2008) (limits on judicial notice and requirement that evidence be timely offered)