McClintock v. Glick

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McClintock v. Glick

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-4091

Case Date: 09/10/2012

Plaintiff: McClintock

Defendant: Glick

Preview:[Cite as McClintock v. Glick, 2012-Ohio-4091.]
STATE OF OHIO                                                                                        )                            IN THE COURT OF APPEALS
                                                                                                     )ss:                         NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                                                                                      )
TIM MCCLINTOCK                                                                                                                    C.A. No.                  11CA0055
Appellee
v.                                                                                                   APPEAL FROM JUDGMENT
ENTERED IN THE
ELDON GLICK, et al.                                                                                  COURT OF COMMON PLEAS
                                                                                                     COUNTY OF WAYNE, OHIO
Appellant                                                                                            CASE No.                     03-CV-0521
                                                                                                     DECISION AND JOURNAL ENTRY
Dated: September 10, 2012
CARR, Judge.
{¶1}   Appellant Simon Glick appeals the judgment of the Wayne County Court of
Common Pleas that denied his motion to set aside a November 24, 2003 judgment.   This Court
affirms.
I.
{¶2}   This case arises out of a family’s construction of a building without the proper
permits.   In January 2003, the Wayne County Building Department issued Adjudication # 4-
2003, ordering compliance with the applicable sections of the Ohio Building Code.   The Board
of Building Appeals affirmed the order.   After the family failed to comply with the order, Tim
McClintock, in his capacity as a county building official, filed a complaint for a permanent
injunction to enjoin the use of the building for any purpose without a declaration by the Building
Department that the building was in compliance with code.   On November 24, 2003, the trial
court issued a permanent injunction to that effect.

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{¶3}   Since  that  time,  the  family has  continuously  challenged  the  efficacy  of  the
permanent injunction.   The State, on behalf of the building official, has filed various contempt
motions.   Family members, in particular Simon and his father Eldon, have filed appeals, motions
to vacate, objections, and “judicial notices of void judgments,” and other documents in an effort
to challenge the underlying permanent injunction.   This Court issued a journal entry dismissing
the family’s immediate appeal from the judgment granting the permanent injunction because the
appellants failed to file a brief.
{¶4}   On January 18, 2005, Simon Glick filed a motion to vacate the November 24,
2003 permanent injunction.   The trial court denied the motion.   This Court affirmed the denial
after concluding that Simon had improperly attempted to use the motion to vacate as a substitute
for an  appeal.    McClintock v.  Glick,                                                             9th Dist.  No.   05CA0009,  2005-Ohio-5187,  ¶  8,  10.
Moreover, we concluded that the family’s argument that the judgment was void for lack of
subject  matter  jurisdiction  was  merely  a  ruse  because  their  substantive  argument  merely
challenged the Building Department’s and Board of Building Appeals’ findings that the family
was operating a commercial building which required a construction permit.  Id. at ¶ 9.
{¶5}   On March 23, 2011, Simon filed a motion to set aside the November 24, 2003
permanent injunction on the basis of an abuse of due process and constitutional error based on
the bias and prejudice of the judge who issued the injunction.   That judge subsequently granted
the family’s motion to recuse and the case was transferred to the docket of another judge who
presided over the case since June 14, 2006.   On October 25, 2011, the trial court denied Simon’s
motion to set aside the November  24,  2003 judgment for the reasons that the family had
previously appealed that judgment, attempted to vacate it, and ignored it over the course of
nearly eight years.  Simon appealed, raising three assignments of error for review.

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II.
ASSIGNMENT OF ERROR I
THE  TRIAL  COURT  ERRED  BY  RULING  AGAINST  THE  MANIFEST
WEIGHT   OF   THE   EVIDENCE   IN   SIMON   GLICK’S   AFFIDAVIT
ATTACHED TO HIS MOTION TO SET ASIDE JUDGMENT.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY DENYING SIMON GLICK’S MOTION TO
SET ASIDE THE NOVEMBER  24,  2003, JUDGMENT, BY ACTING IN A
MANNER INCONSISTENT WITH DUE PROCESS, AND DEMONSTRATED
CONSTITUTIONAL ERROR, IN VIOLATION OF ARTICLE I, SECTION 10,
OF  THE  OHIO  CONSTITUTION,  OHIO  REVISED  CODE  2921.45,  AND
AMENDMENT V, VI, & VII, OF THE UNITED STATES CONSTITUTION.
ASSIGNMENT OF ERROR III
THE  TRIAL  COURT  ERRED  IN  ITS  ORDER  BY  SAYING,                                                                      “THE
DEFENDANTS   HAVE   APPEALED   THAT                                                                      (NOVEMBER   24,   2003)
JUDGMENT, ATTEMPTED TO VACATE IT AND IGNORED IT DURING
THE PAST NEARLY EIGHT (8) YEARS.” WHICH IS PREJUDICIAL AND
CLEARLY  CONTRARY  TO  THE  RECORDS,  COURT  FINDINGS,  AND
FACTS IN THIS CASE.
{¶6}   Simon argues that the trial court erred by denying his motion to set aside the
November 24, 2003 permanent injunction, because (1) the trial court’s finding that the building
was not in compliance with code provisions was against the manifest weight of the evidence; (2)
the injunction is void for lack of subject matter jurisdiction because the trial judge failed to
follow the law and acted in a manner inconsistent with due process; and (3) the trial court erred
in finding that the family had already appealed the judgment, attempted to vacate it, and
disregarded the injunction for almost eight years.  This Court disagrees.
{¶7}   A motion to set aside a final order is governed by Civ.R. 60(B).   The decision to
grant or deny a motion for relief from judgment pursuant to Civ.R. 60(B) lies in the sound
discretion of the trial court and will not be disturbed absent an abuse of the discretion.   Strack v.
Pelton,  70 Ohio St.3d  172,  174  (1994).    An abuse of discretion is more than an error of

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judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its
ruling.   Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).   When applying the abuse of
discretion standard, this Court may not substitute its judgment for that of the trial court.   Pons v.
Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶8}   Civ.R. 60(B) states, in relevant part,
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.   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.
{¶9}   To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party
must demonstrate that
the party has a meritorious defense or claim to present if relief is granted; (2) the
party is entitled to relief under one of the grounds stated in Civ.R.  60(B)(1)
through (5); and (3) the motion is made within a reasonable time, and, where the
grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the
judgment, order or proceeding was entered or taken.
GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph
two of the syllabus.
{¶10}                                                                                                    “The requirements of Civ.R. 60(B) are stated in the conjunctive; if one of the
requirements [is] not met, relief from judgment cannot be granted.”   Wolotsky v. Portage Path
Community Mental Health Ctr., 9th Dist. No. 16827, 1995 WL 217032 (Apr. 12, 1995), citing
Strack, 70 Ohio St.3d at 174.

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{¶11}  As an initial matter, Simon waited seven-and-a-half years to file this motion to set
aside the judgment granting the permanent injunction, and then after having filed multiple
appeals, a prior motion to vacate, and numerous challenges to the judgment in the trial court.
The trial court noted the great length of time before Simon filed this most recent motion to set
aside, implicitly finding that the motion was not filed within a reasonable time.   This Court
agrees.   Simon has not argued how a delay of seven-and-a-half years in raising issues of which
he was aware from the time of the issuance of the November 24, 2003 injunction was reasonable.
{¶12}  Moreover, Simon did not identify any of the grounds enumerated in Civ.R. 60(B)
as a basis for his motion to set aside.   Instead, he attempted to substantively challenge the
granting of the permanent injunction, a matter appropriate for a direct appeal, rather than a
motion to set aside.   It is well settled that a party may not use a Civ.R. 60(B) motion, whether so
identified as such or not, as a substitute for a direct appeal.  McClintock, 2005-Ohio-5187, at ¶ 8,
citing Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128, 131 (1986).
{¶13}  In addition, Simon argues that the trial court made erroneous factual findings in
its order denying his motion to set aside, warranting reversal.    Because Simon has in fact
previously filed an appeal from the November 24, 2003 permanent injunction, previously moved
to vacate that order, and raised multiple challenges in the trial court including attempts simply to
declare various court orders void, his argument in this regard is not well taken.
{¶14}  Finally, we note that Simon argues that the permanent injunction was void ab
initio for lack of subject matter jurisdiction.                                                         “Because subject-matter jurisdiction goes to the
power of the court to adjudicate the merits of a case, it can never be waived and may be
challenged at any time.   It is a condition precedent to the court’s ability to hear the case.   If a
court acts without jurisdiction, then any proclamation by that court is void.”                          (Internal citations

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and quotations omitted.)  DaimlerChrysler Fin. Servs. N. Am. LLC v. Hursell Unlimited, Inc., 9th
Dist. No. 24815, 2011-Ohio-571, ¶ 20, quoting Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-
1980, ¶ 11.
{¶15}  It is well established that “[s]ubject-matter jurisdiction of a court connotes the
power to hear and decide a case upon its merits.    Subject-matter jurisdiction defines the
competency of a court to render a valid judgment in a particular action.   In the civil context, the
standard applied is whether an allegation is raised on any cause of action cognizable by the court.
Further, subject-matter jurisdiction encompasses the court’s authority to determine a specific
case within that class of cases that is within its subject matter jurisdiction.”                       (Internal citations
omitted.)   In re Darling, 9th Dist. No. 03CA0023, 2003-Ohio-7184, ¶ 14.   Simon has not cited
any authority for the proposition that the court of common pleas lacks jurisdiction to issue
injunctive relief.    To the extent that Simon argues that the November  24,  2003 permanent
injunction is void for lack of subject matter jurisdiction because the trial court failed to follow
the law or accord him due process, his argument is misplaced.
{¶16}  Based on the above analyses, Simon’s three assignments of error are overruled.
III.
{¶17}  All assignments of error are overruled.  The judgment of the Wayne County Court
of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.

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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution.   A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run.   App.R. 22(C).   The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
BELFANCE, J.
CONCUR.
APPEARANCES:
SIMON GLICK, pro se, Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, for Appellee.

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