Upkins v. BroshUpkins v. Brosh
NICHOLAS E. SUBASHI, Atty. Reg. No. 0033953 and TABITHA JUSTICE, Atty. Reg. No. 0075440, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440 Attorneys for Defendant-Appellee Lenee Brosh
MELANIE J. WILLIMASON, Atty. Reg. No. 0079528 and DANIEL A. SABOL, Atty. Reg. No. 0096720, 7775 Walton Parkway, Suite 200, New Albany, Ohio 43054 Attorney for Defendant-Appellee J.J. Bubeck
OPINION
DONOVAN, J.
{¶ 2} On October 16, 2017, Upkins filed a pro se “Complaint
{¶ 3} On October 19, 2017, Defendants filed their “Motion for Dismissal.” In its entirety, the motion provides as follows:
Now comes the above named defendants by and through, Miami County Prosecuting Attorney, Anthony E. Kendell, and for the reasons set forth below, respectfully requests that the Plaintiff‘s Complaint be dismissed.
It is the State‘s position that this Honorable Court lacks jurisdiction in order to proceed on the Plaintiff‘s Complaint as a matter of law. As a result, the State respectfully requests that the Plaintiff‘s Complaint be summarily dismissed on those grounds.
{¶ 4} The certificate of service on the motion provides that it was sent via regular mail to Upkins at London Correctional Institution, to Brosh at the Miami County Municipal Court Prosecutor‘s Office, and to Sheriff David Duchak and Deputy Bubeck at the Miami County Sheriff‘s Office.
{¶ 5} On October 24, 2017, the court granted the motion to dismiss without analysis; the entirety of it of its decision provided: “Upon Motion of the State, and for good cause shown, the Motion to Dismiss filed by the Miami County Prosecutor in this matter, is hereby granted.” We note that the signature appearing above Judge Christopher
{¶ 6} On November 13, 2017, Upkins filed his pro se motion for relief from judgment, arguing that the “State filed a motion to dismiss with the Court without serving a copy on the Plaintiff, and therefore, obstructed the Plaintiff from being able to oppose the motion.” He argued that the trial court failed to provide a rationale for the dismissal of his complaint. According to Upkins, “the contents of the State‘s motion to dismiss is [sic] still unknown to the plaintiff.” He asserted that “it is incumbent upon this Court to grant relief from judgment pursuant to
{¶ 7} Upkins attached his affidavit to his motion for relief from judgment. The affidavit stated that he was not served with a copy of the motion to dismiss and that his complaint was dismissed without any rationale. He further averred that he received “the dismissal entry on October 26, 2017 from Anthony E. Kendell Miami County Prosecuting Attorney as the sender on the envelope from the mail room here at the London
{¶ 8} On the same day, Upkins filed a “Motion to Amend Complaint,” which provided that Defendants “have not filed an affirmative defense in this case, and based on these facts and the supporting civil rules the motion for leave should be freely given.” Upkins also filed an affidavit which provided, “[t]his will verify that a copy of the Plaintiff‘s Motion for Release from Judgment, Motion to Amend Complaint, & Affidavit of the Plaintiff was mailed to the clerk of courts at Miami County Common Pleas Court by U.S. Mail, County Courthouse Troy, Ohio, to be filed with the Common Pleas Court.”
{¶ 9} On January 12, 2018, the trial court issued its “Decision/Judgment Entry Denying Motion for Relief from Judgment.” The court noted that Defendants “have not responded to the motion for relief from judgment, although, somewhat ironically, it appears that [Anthony E. Kendell, the Miami County prosecutor who filed the motion to dismiss on behalf of Defendants], may not have been served with a copy of the motion for relief.” The trial court noted that the dismissal entry was signed by “a visiting judge,” who “did not explain the basis of the dismissal beyond ‘good cause shown.’ ” The court noted that Upkins did not appeal from the dismissal of his complaint. The court found that the “memorandum in support of the motion for relief from judgment is confusing from the standpoint of ascertaining the basis for relief under
The memorandum supporting the motion for relief makes a general assertion about entitlement to relief “pursuant to
Civil Rule 60(B)(1) ,(3) &(5) “, but does not set forth specific operative facts to support entitlement to relief under those three grounds. Upkins asserts in his memorandum that he “may have mistakenly used the wrong statute in presenting his claim to the court by asserting42 U.S.C. 1983 .” Upkins also claims (correctly) that the court should have given him time to respond to the motion for dismissal. Had he been given that time, however, Upkins claims that he would have filed an amended complaint. The proposed amended complaint, which is attached to this decision, removes any reference to a claim under42 U.S.C. § 1983 , but in both the original and proposed amended complaint, Upkins[‘s] sole claim is for “malicious prosecution“. However, the removal of a reference to42 U.S.C. § 1983 does not change the sole claim being made for malicious prosecution and does not demonstrate a mistake that would justify granting relief underCivil Rule 60(B) .The court finds that Upkins has failed to demonstrate he is entitled to relief under any of the grounds alleged under
Civil Rule 60(B) . He has not demonstrated “mistake, inadvertence, surprise or excusable neglect” under60(B)(1) . There is also no evidence of fraud, misrepresentation or other misconduct of an adverse party that would justify relief under60(B)(3) . Upkins also points to the catch-all provisions of60(B)(5) , but he does not make any separate argument to demonstrate why he is entitled to relief
(Footnotes omitted.)
{¶ 11} We note that the amended complaint attached to the motion to amend does not bear a time-stamp. In separate footnotes the court noted that the “certificate of service signed by Upkins shows that it was sent to one of the defendants, Lenee Brosh, who works as a prosecutor in Miami County Municipal Court and who is not employed by the Miami County Prosecuting Attorney‘s office,” and that “Local Rule 3.031 gave Upkins 14 days to respond to the motion for dismissal.
{¶ 12} Upkins asserts two assignments of error herein which we will consider together. They are as follows:
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT GRANTING APPELLANT‘S 60(b)(5) MOTION WHEN THE TRIAL COURT FAILED TO CORRECT THE PLAIN ERRORS OF A SUBSTITUTE JUDGE WHO‘S [sic] JUDGMENT WAS UNREASONABLE, ARBITRARY OR UNCONSCIONABLE”
THE TRIAL COURT ABUSED ITS DISCRETIOIN IN IT‘S [sic] JUDGMENT TO THE PREJUDICE OF THE APPELLANT BY DENYING HIS CIVIL RULE 60(B)(5) MOTION FOR RELIEF FROM JUDGMENT
WHERE APPELLANT‘S AFFIDAVIT WAS NEVER CONTESTED BY DEFENDANT‘S [sic] WHERE SERVICE OF THEIR MOTION TO DISMISS WAS NOT MADE ON APPELLANT IN ACCORDANCE WITH OHIO CIVIL RULE 5(A).
{¶ 13} In the “Statement of the Case” portion of his brief, Upkins asserts that his case is “a case involving malicious prosecution” against Brosh and Bubeck, who “acted with vehemence and intent of purpose to cause [him] embarrassment, irreparable harm, and financial loss.” Upkins asserts that his complaint “should have never been dismissed by the trial court pursuant to civil rules and local rules without allowing [him] an opportunity to respond” to the motion to dismiss.
{¶ 14} Upkins asserts that the “trial court dismissing the civil action five days after the defendants filed their motion without allowing Appellant an opportunity to oppose their motion was prejudicial and an abuse of discretion.” He argues that, “under Ohio‘s liberal pleading rules, all that is required of a plaintiff bringing suit is (1) a short and plain statement of the claims showing that the party is entitled to relief, and (2) a demand for judgment for relief to which the party claims to be entitled.”
{¶ 15} Upkins argues that he:
* * * filed a “Motion for Relief from Judgment” and a “Motion to Amend Complaint“, accompanied by an “Affidavit” swearing he never received defendants[‘] motion to dismiss complaint. The defendants never responded to either of Appellant‘s motions, and never contested the Appellant‘s affidavit. The Appellant ask[s] this Appellate Court to note that all legal mail coming into the London Correctional Institution, from court or
attorneys are recorded and must be signed for by the recipient, and can be verified by the Institution Mail Officer.
The trial court promptly denied Appellant‘s motion for Relief from Judgment. First it is unfair and prejudicial for the Court to acknowledge the defendant[s‘] not contesting the Appellant‘s affidavit, and secondly, not responding to Appellant‘s motion for Relief from Judgment. Thirdly, it is unfair and prejudicial against the Appellant for the trial court to recognized [sic] and acknowledge a substitute judge dismissing a civil action with a total disregard for the local rules 3.03, and civil rules
7(B)(2) ,8(A) , and41(B)(1) . Further, the substitute judge dismissed the complaint by signing the dismissal as if the sitting judge, Christopher Gee, had actually signed it, and the substitute judge[‘s] name has not been mentioned and still is unknown to the Appellant. * * * And even assuming that the defendant‘s [sic] had sent Appellant a copy of their motion to dismiss by regular mail, then it still would have had [sic] prejudiced the Appellant because it takes three or four days to receive legal mail at this institution. Therefore, at best, the Appellant would have only had the defendant[s‘] motion to dismiss one day or two at best, and could have not responded in time.
{¶ 16} Upkins argues that “the trial court abused its discretion by failing to correct an unfair judgment that was casted in it‘s [sic] name despite the trial court‘s acknowledgement of its unfairness and unjust decisions, which ultimately has prejudiced this appellant.”
{¶ 17} Under his first assignment of error, Upkins asserts that his appeal “rests on
{¶ 18} Upkins asserts that the “trial court or Clerk of Courts did not serve the October 24, dismissal on the Appellant, but rather, it was sent by the [Defendants‘] attorney, Anthony E. Kendall.” He argues that the “trial court denied Appellant‘s motion for relief from judgment after first acknowledging that the visiting or substitute judge had committed plain error in dismissing the civil action.” Upkins asserts that he “has a meritorious claim for malicious prosecution, and his complaint and Amended Complaint both met the malicious prosecution criteria.”
{¶ 19} In his second assignment of error, Upkins asserts that while his original motion sought relief pursuant to
{¶ 20} In his brief, Deputy Bubeck asserts that he was not served with Upkins‘s
{¶ 21} Prosecutor Brosh also argues that Upkins “clearly had the ability and
{¶ 22} Upkins filed a reply brief, attached to which are copies of the legal mail log from the London Correctional Institution which Upkins asserts reflect mail that Upkins received from October 16, 2017 to November 25, 2017, as well as a copy of an envelope addressed to Upkins from the Prosecuting Attorney of Miami County, which reflects it was received on October 26, 2017.
{¶ 23} We note that Bubeck filed a motion to strike the attachments to Upkins‘s reply brief as outside the record, and Upkins filed a response thereto. On May 16, 2018, this Court issued a Decision and Entry, noting that Bubeck‘s motion to strike and Upkins‘s response “are TAKEN UNDER ADVISEMENT. This court will review the trial court‘s record that was filed in this appeal, and will not consider evidence that is not part of that record.” Having undertaken such review, we conclude that the attachments to Upkins‘s reply are not part of the record before us, and we will not consider them. See State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus (appellate court may not add to the record and decide an appeal based on material that was not before the trial court.)
{¶ 24} As this Court has previously noted:
“Once an order has been journalized by a trial court as a final appealable order, that order cannot be modified or vacated except as
provided under
Civ.R. 50(B) (motion notwithstanding the verdict),Civ.R. 59 (motion for new trial), orCiv.R. 60(B) (motion for relief from judgment).” Krumheuer v. Flowers & Versagi Reporters, 8th Dist. Cuyahoga No. 72431, 1997 WL 691169, *2, citing In re Guardianship of Mauer, 108 Ohio App.3d 354, 357, 670 N.E.2d 1030 (6th Dist. 1995); Pitts v. Dept. of Transp., 67 Ohio St.2d 378, 380, 423 N.E.2d 1105 (1981); andCiv.R. 54(A) .
* * *
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; (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) ; (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. * * *
To prevail on a
“A motion for relief from judgment under
Civ.R. 60(B) is addressed to the sound discretion of the trial court, and that court‘s ruling will not be disturbed on appeal absent a showing of abuse of discretion.” Griffrey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). * * *
Beyoglides v. Elmore, 2d Dist. Montgomery No. 24905, 2012-Ohio-3979, ¶ 12-16.
{¶ 25} The term ” ‘abuse of discretion’ [is] defined as an attitude that [is] unreasonable, arbitrary, or unconscionable.” Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 7, citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985).
{¶ 26} As this Court finally noted in Beyoglides:
A
Civ.R. 60(B) motion may not be used as a substitute for direct appeal. Key v. Mitchell, 81 Ohio St.3d 89, 90–91, 689 N.E.2d 548 (1998); Doe v. Trumbull Cty. Child. Serv. Bd., 28 Ohio St.3d 128, 131, 502 N.E.2d 605 (1986). This court has stated that “[t]he use ofCiv. R. 60(B) is generally reserved to issues that cannot be raised on appeal.” Burgess v. Safe Auto, 2d Dist. Montgomery No. 20941, 2005–Ohio–6829, ¶ 32. Therefore, when a party merely repeats arguments that concern the merits of the case and that could have been raised on appeal, relief underCiv.R. 60(B) is not available. Wozniak v. Tonidandel, 121 Ohio App.3d 221, 228, 699 N.E.2d
555 (8th Dist.1997).
* * * “A
Civ.R. 60(B)(5) motion for relief from judgment may not be used as a substitute for a direct appeal from the judgment challenged, Colley v. Bazell (1980), 64 Ohio St.2d 243, 245, 18 O.O.3d 442, 443-444, 416 N.E.2d 605, 607, nor may it be used for, or in place of, any of the other more specific provisions ofRule 60(B) . Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 5 OBR 120, 448 N.E.2d 1365.” Miamisburg Motel v. Huntington Natl. Bank, 88 Ohio App.3d 117, 129, 623 N.E.2d 163, 172 (2d Dist. 1993).
Id. at ¶ 17-18 (holding that “Beyoglides‘s arguments in his motion to modify or clarify could have been the basis for a direct appeal from the original order construing the will. The trial court therefore erred when it granted relief under
{¶ 27} We agree with Defendants that the propriety of the dismissal of Upkins‘s complaint should have been raised on direct appeal.2 Accordingly, Upkins‘s assigned errors are overruled, and the judgment of the trial court denying his motion for relief from judgment is affirmed.
FROELICH, J., concurring:
{¶ 28} The error claimed by the Appellant – that he did not have the opportunity to respond to the motion to dismiss and/or that there were no grounds to grant the motion – are, if true, apparent on the record. The Appellant could have filed (and, as pointed out by the majority, still could file) an appeal. Therefore, under the unique facts of this case,
Copies mailed to:
Lamone Upkins
Nicholas E. Subashi
Tabitha Justice
Melanie J. Williamson
Daniel A. Sabol
Hon. Christopher Gee