2022 Ohio 4183
Ohio Ct. App.2022Background:
- Kelli Vukovic-Burkhardt, a Dayton public-school teacher, was terminated by board resolution following hearings in April–June 2019.
- The Board’s attorney emailed a three-page termination resolution to Vukovic-Burkhardt’s counsel on September 20, 2019; the Board mailed a copy to Vukovic‑Burkhardt on September 23 (received Sept. 26, 2019).
- Vukovic‑Burkhardt filed an administrative appeal under R.C. 3319.16 more than 30 days after the mailed copy; the trial court dismissed the appeal as untimely on July 24, 2020, and this court affirmed.
- She sought reconsideration in the trial court; the court issued an April 29, 2021 order overruling that motion, which the appeals court deemed a nullity because the July 24, 2020 order was final.
- In April 2022 she filed a Civ.R. 60(B)(3) and (5) motion alleging the September 20 email copy was forged and that the Board’s attorney perpetrated fraud, seeking to restart the appeal clock; the trial court denied the motion as untimely under (3) and on the merits under (5).
- The appeals court affirmed: Civ.R. 60(B)(3) relief was untimely because the one‑year clock ran from the July 24, 2020 final order; Civ.R. 60(B)(5) relief and a hearing were denied for lack of evidence of fraud on the court.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Civ.R. 60(B)(3) | Vukovic‑Burkhardt argued fraud allegation made later tolled or justified late filing; she sought relief from April 29, 2021 order. | Board argued the one‑year period runs from the July 24, 2020 final dismissal and her 2022 motion was untimely. | Court held the April 29, 2021 order was a nullity; one‑year period began July 24, 2020, so (3) motion was untimely. |
| Fraud on the court under Civ.R. 60(B)(5) | Alleged the emailed Sept. 20 resolution bore a forged date/signature and counsel knowingly relied on it to obtain dismissal. | Board argued the emailed resolution gave identical substantive notice; no proof counsel knew of any falsity or intended to mislead. | Court held plaintiff’s evidence (treasurer’s deposition) did not show forgery or attorney knowledge; (5) relief denied on merits. |
| Right to evidentiary hearing | Plaintiff requested a hearing to prove fraud and forgery. | Board asserted her allegations were conclusory and unsupported; no need for hearing. | Court held no automatic right to a hearing; because allegations lacked operative facts and evidentiary support, denial without a hearing was not an abuse of discretion. |
Key Cases Cited
- Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75 (2014) (elements and burdens for Civ.R. 60(B) relief).
- GTE Automatic Elec., Inc. v. ARC Indus., 47 Ohio St.2d 146 (1976) (standard for Civ.R. 60(B) review).
- Strack v. Pelton, 70 Ohio St.3d 172 (1994) (Civ.R. 60(B) requirements are conjunctive).
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard).
- Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378 (1981) (trial court cannot entertain motion to reconsider a final order; such orders are nullities).
- Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (1983) (Civ.R. 60(B)(5) is extraordinary relief; not a substitute for specific subsections).
- Coulson v. Coulson, 5 Ohio St.3d 12 (1983) (fraud on the court described; attorney participation supports (5) relief).
- Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18 (1996) (movant must do more than make bare allegations; may submit evidentiary materials).
- Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (1988) (movant bears burden and must present operative facts to warrant hearing).