Vukovic-Burkhardt v. Dayton Bd. of Edn.Vukovic-Burkhardt v. Dayton Bd. of Edn.
DAVID J. LAMPE, Atty. Reg. No. 0072890 & JASON R. STUCKEY, Atty. Reg. No. 0091220, 312 North Patterson Boulevard, Suite 200, Dayton, Ohio 45402 Attorneys for Defendants-Appellees
LEWIS, J.
{¶ 1} Plaintiff-Appellant Kelli Vukovic-Burkhardt appeals from an order of the Montgomery County Common Pleas Court denying her
I. Facts and Procedural History
{¶ 2} We previously addressed the history of this case in Vukovic-Burkhardt v. Dayton Bd. of Edn., 2021-Ohio-739, 169 N.E.3d 53, ¶ 3-4 (2d Dist.), as follows:
Vukovic-Burkhardt was a classroom teacher in the Dayton Public Sсhools. During the early part of the 2018-2019 school year, she reportedly called administrators a derogatory name in front of students, spoke about her personal life while on the phone in front of her students, used Facebook during instructional time, regularly yelled at and berated her students, and engaged in other inappropriate behavior. The [Dayton Board of Education (hereinafter “the Board”)] decided to fire her. In April and June 2019, a referee conducted а hearing on the Board’s decision. Afterward, the referee filed a report finding good and just cause for terminating Vukovic-Burkhardt’s teaching contract and recommending that the Board do so. On September 17, 2019, the Board accepted the referee’s recommendation and passed a resolution terminating her teaching contract. Vukovic-Burkhardt’s attorney requested a copy of the Board’s resolution, and the attorney for the Board emailed a copy of the three-page
resolution to her attorney on September 20, 2019. That copy of the resolution detailed the Board’s decision and indicated it was passed by a 7-0 roll call vote at a meeting of the Board on September 17, 2019, and was signed by the Treasurer. (Exhibit 1 of the Answer to the Amended Complaint filed March 17, 2020.) Vukovic-Burkhardt herself separately received a copy of the resolution six days later that was sent to her by the Board. On October 26, 2019, Vukovic-Burkhardt filed а complaint against the Board and others that contained, among other claims, an administrative appeal of the decision to terminate her teaching contract. The Board moved for judgment on the pleadings as to the administrative appeal, arguing that the appeal was untimely under
R.C. 3319.16 , having been filed more than 30 days after Vukovic-Burkhardt received notice of the Board’s decision. The trial court agreed, and on July 24, 2020, it dismissed the administrative appeal for lack of jurisdiction.
{¶ 3} Vukovic-Burkhardt appealed the dismissal on August 21, 2020. The sole assignment of error raised on appeal was whether the trial court had erred by dismissing Vukovic-Burkhardt’s administrative appeal.
{¶ 4} On October 13, 2020, Vukovic-Burkhardt filed a motion asking the trial court to reconsider its decision dismissing her administrative appeal. Attached to her motion was a copy of her brief that was filed in the appeal. On October 20, 2020, the trial court filed a notice informing the parties that, because an appeal was pending, the trial court
{¶ 5} The parties continued with preparation for trial on the remaining claims. On January 22, 2021, Vukovic-Burkhardt filed a “Motion to Strike” in this Court in support of her argument that was still pending on appeal. Vukovic-Burkhardt, 2021-Ohio-739, 169 N.E.3d 53, at ¶ 5. Her motion asked this court to strike the Board’s reliance on the resolution that had been emailed to her counsel on September 20, 2019; she argued that the resolution contained a forged date and a forged signature. Vukovic-Burkhardt claimed that she had learned of the supposed forgery from the deposition of the treasurer taken on December 23, 2020. Id. Although Vukovic-Burkhardt filed a motion in this Court, she did not file a motion in the trial court or supplement her October 13, 2020 motion for reconsideration with the new allegations or evidence.
{¶ 6} We overruled Vukovic-Burkhardt’s motion for several reasons. As we explained in our Opinion:
R.C. 3319.16 states that the 30-day appeal period begins with “receipt of notice of the entry,” and the resolution that the Board’s attorney sent Vukovic-Burkhardt’s attorney on September 20, 2019, constituted notice of the Board’s resolution. Furthermore, the treasurer’s deposition testimony was not before the trial court when it dismissed the administrative appeal, so we should not consider it. Finally, any allegation, let alone evidence, that the resolution was a forgery was not before the trial court. We decide this appeal оn the record before us, i.e., what was before the trial court when that court made its decision.
{¶ 7} On March 12, 2021, we affirmed the judgment of the trial court, concluding that the trial court had properly determined that Vukovic-Burkhardt’s administrative appeal was untimely and, therefore, the court had lacked jurisdiction to consider it. Id. at ¶ 11.
{¶ 8} After the appeal was resolved, the trial court issued a decision that denied Vukovic-Burkhardt’s October 13, 2020 motion. Decision, Order, and Entry (Apr. 29, 2021). The trial court determined that Vukovic-Burkhardt’s motion for reconsideration of the July 24, 2020 decision was not proper, as the prior decision had been a final appealable order and therefore the trial court lacked jurisdiction to reconsider it. The trial court also found that even if it had jurisdiction, it would deny Vukovic-Burkhardt’s motion pursuant to the law-of-the-case doctrine.
{¶ 9} On April 29, 2022, Vukovic-Burkhardt filed a combined
{¶ 11} The trial court also denied Vukovic-Burkhardt’s motion insofar as it was brоught under
{¶ 12} Vukovic-Burkhardt appeals and raises two assignments of error. First, she alleges that the trial court erred in finding her
II. Civ.R. 60(B) Motions
{¶ 13}
On motion and upon such terms as are just, the cоurt may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; * * * or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
{¶ 14} “To succeed on a motion for relief from judgment under
{¶ 15} “ ‘In an appeal from a
III. First Assignment of Error
{¶ 16} In her
{¶ 17} In order to review whether the trial court abused its discretion in finding that Vukovic-Burkhardt did not file her
{¶ 18} On April 29, 2022, Vukovic-Burkhardt filed her
{¶ 19} There is no dispute that the July 24, 2020 decision was a final appealable order. Thus, it was not subject to a motion for reconsideration. “
{¶ 20} In order to challenge the July 24, 2020 decision, Vukovic-Burkhardt could have filed either a direct appeal from that order or a
{¶ 21} Vukovic-Burkhardt filed a direct appeal in which we ultimately upheld the trial court’s dismissal of her administrative appeal. She also filed a
{¶ 22} The trial court correctly determined that Vukovic-Burkhardt was actually attempting to challenge the July 24, 2020 final order through her
IV. Second Assignment of Error
{¶ 23} In her second assignment of error, Vukovic-Burkhardt argues that the trial court erred in denying her
{¶ 24} “
{¶ 25} The Ohio Supreme Court has explained that “[a]ny fraud connected with the presentation of a case to a court is a fraud upon the court, in a broad sense. * * * Thus, in the usual case, a party must resort to a motion under
{¶ 26} “Although a movant is not required to support its motion with evidentiary materials, the movant must do more than make bare allegations that he or she is entitled to relief.” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996), citing Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). “Thus, in order to convince the court that it is in the best interests of justice to set aside the judgment or to grant a hearing, the movant may decide to submit evidentiary materials in support of its motion.” Id. “ ‘Even though there is no requirement that the movant submit an affidavit or other material with his motion, because hе has the burden of proof and is not automatically entitled to a hearing, legal practice dictates that the movant must do all that he can to present allegations of operative facts to demonstrate that he is filing his motion within a reasonable period of time; that he is entitled to relief for one of the grounds specified in Civil Rule 60(B)(1) through (5); and that he has a valid defense.’ ” Liberty Nursing Ctr. of Englewood, Inc. v. Valentine, 2d Dist. Montgomery No. 24685, 2012-Ohio-1096, ¶ 65, quoting Adomeit at 103.
{¶ 27} The allegations in this case were that Vukovic-Burkhardt’s attorney had requested and reсeived a copy of the Board’s resolution terminating her employment via email on September 20, 2019. A copy of the three-page resolution documented the reasoning for the Board’s decision, indicated it was approved “7/0” by the Board members, and was signed by the treasurer. On September 23, 2019, the treasurer mailed Vukovic-Burkhardt a copy of the resolution, which Vukovic-Burkhardt received on
{¶ 28} Initially, we note that Vukovic-Burkhardt’s
{¶ 29} The trial court found that there was no evidence of fraud to support granting a
The Court does not find that the resolution terminating Plaintiff’s teaching contract which the Board’s attorney sent to Plaintiff’s attorney on September 20, 2019, was sent with any knowledge of potential falsity or with the intent to mislead. The copy of the resolution which was sent to
Plaintiff’s attorney is identical to the one mailed to Plaintiff, with the pоssible exception of Ms. Abraha’s signature. During her deposition, Ms. Abraha never testified that she did not sign the resolution, that someone else forged her signature, or that she altered the resolution in any way. Thus, Plaintiff received notice of the specific reasons for her termination and of the Board’s final decision when a copy of the resolution was sent to her attorney since nothing changed between this copy and the copy mailed directly to Plaintiff. As such, there is nо basis to claim that the Board’s attorney perpetrated fraud on this Court at any time and so the Court denies Plaintiff’s Motion for Relief as it relates to
Civ.R. 60(B)(5) .
Decision, Order and Entry Denying Plaintiff’s Motion for Relief from Judgment (June 30, 2022), p. 5-6.
{¶ 30} “The elements of fraud are (1) a representation (or concealment of a fact when there is a duty to disclose), (2) that is material to the transaction at hand, (3) made falsely, with knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or fаlse that knowledge may be inferred, (4) with intent to mislead another into relying upon it, (5) justifiable reliance, and (6) resulting injury proximately caused by the reliance.” Molnar, 2021-Ohio-2698, at ¶ 20, citing Ajibola v. Ohio Med. Career College, Ltd., 2018-Ohio-4449, 122 N.E.3d 660, ¶ 15 (2d Dist.).
{¶ 31} The documents submitted in support of Vukovic-Burkhardt’s
[Plaintiff’s Attorney]: * * * My question is, when did you get around to signing the resolution regarding the termination of Kelli Vukovic-Burkhardt?
[Defense Attorney]: Objection. You can answer, Hiwot.
[Treasurer]: After the board has approved, anytime after that, I sign them.
[Plaintiff’s Attorney]: Anytime after that so isn’t it –
[Treasurer]: After it’s approved.
[Plaintiff’s Attorney]: Okay. So isn’t it true that you didn’t sign the resolution regarding Kelli Vukovic-Burkhardt until at least six days after the board’s meeting?
[Treasurer]: It’s not true.
[Plaintiff’s Attorney]: Okay. So when did you sign the resolution regarding Kelli Vukovic-Burkhardt?
[Treasurer]: I sign it when it’s typed, when – when everything – the board agenda is complete. I don’t know when I signed it, but when it’s complete, I get it, and I sign it.
[Plaintiff’s Attorney]: Okay. So your testimony today –
[Treasurer]: Not that night.
[Plaintiff’s Attorney]: Not that night. Okay. I understand. So I want to make sure the record is clear. So with regard to the resolution concerning the termination of Kelli Vukovic-Burkhardt, you did not sign it that night, on September 17, 2019, correct?
[Treasurer]: Correct. I don’t see it that night.
[Plaintiff’s Attorney]: And you can‘t tell me how many days later, can you?
[Treasurer]: No, I cannot tell you how many days later, but I have the roll call, how many of them voted yes or no.
Deposition of Hiwot Abraha, p. 34-36. Although she could not say exactly when she signed the resolutiоn, the treasurer specifically denied that the first time she signed the resolution was six days after the Board’s meeting, i.e., September 23, 2019. Id. at 35-36. As the trial court noted, the treasurer was never asked if she had signed the September 20, 2019 resolution or if the signature was not hers. Thus, the deposition did not support Vukovic-Burkhardt’s
{¶ 32} Moreover, there was no evidence the Board’s attorney provided the September 20, 2019 resolution with any knowledge of potential falsity or with the intent to mislead. The Septеmber 20, 2019 resolution was provided to Vukovic-Burkhardt’s
{¶ 33} Vukovic-Burkhardt’s conclusory allegations of fraud in her motion were insufficient to justify granting a
{¶ 34} Lastly, we consider whether Vukovic-Burkhardt was entitled to a hearing. We conclude that she was not. “[A] movant has no automatic right to a hearing on a motion for relief from judgment.” Hrabak v. Collins, 108 Ohio App.3d 117, 121, 670 N.E.2d 281 (8th Dist.1995). “It is an abuse of discretion for a trial court to overrule a
V. Conclusion
{¶ 36} Having overruled Vukovic-Burkhardt’s two assignments of error, the judgment of the triаl court is affirmed.
TUCKER, P.J. and EPLEY, J., concur.
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Peter K. Newman David J. Lampe Jason R. Stuckey Hon. Mary L. Wiseman