[Cite as Myers v. Ohio Dept. of Rehab. & Corr. , 2022

- Ohio

- 1412.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Craig Myers, :

Plaintiff

- Appellee, : No. 21AP

- 106 (Ct. of Cl. No. 2019

- 0 0 261JD)
v. : (REGULAR CALENDAR) Ohio Department of Rehabilitation and : Correction,

:

Defendant

- Appellant.

:

D E C I S I O N Rendered on April 28, 2022

On brief: Ohio Justice & Policy Center
, Gabriel M. Fletcher
, and Mark Vander Laan
, for appellee. Argued: Gabriel M. Fletcher.

On brief: Dave Yost , Attorney General, Lauren D. Emery , and Michelle Brizes
, for appellant

. Argued: Michelle Brizes.

APPEAL from the Court of Claims of Ohio

JA MISON , J. {¶ 1} Defendant

- appellant, Ohio Department of Rehabilitation and Correction ( " ODRC " ) , appeals from a judgment of the Court of Claims of Ohio granting plaintiff

appellee ' s motion for relief from judgment. The judgment of the Court of Claim s of Ohio is
affirm ed

. I. Facts and Procedural History

{¶ 2} In July 2017, appell ee was an inmate in the custody and control of appell ant

at the Allen

- Oakwood Correctional Institution. A ccording to appell ee , he informed O DRC ' s employees that other inmates, including his cellmate, Brock Daniels, were planning toNo. 21 A P

- 106 2

assault him because appel l ee had given a note to a corrections officer ( " CO " ), regarding
conduct in the cell block and the CO read the note aloud in the presence of other inmate s

. {¶ 3} At trial, appell ee presented evidence that he informed the CO he feared for his safety and needed pr otection from Daniels
, but the CO told him that he was not sure he could help appell ee because of a staffing shortage on the h oliday. Appell ee was not afforded any additional protection and on July 4, 201 7 , he was attacked by Daniels and injured. {¶ 4} On Febru ary 28, 2019, appell ee filed his complaint against O DRC in the
C ourt of Claims of Ohio alleging negligence. On F ebruary 6, 2020, a magistrate of the c ourt of c laims conducted a bench trial at the correctional institution. On June 8, 2020, the magistrate issued a decision recommending judgment for appell ee

. {¶ 5} The magistrate found that appell ee proved he sustained injuries on July 4, 2017, when he was assaulted b y his cellmate, and that O DRC was at fault because it had constructive notice of the impending assault. Accordingly, the magistrate found in favor of appell ee on his negligence claim and recommended judgment for appell ee

. On the issue of appell ee ' s damag es, however, the magistrate found that appell ee " produced very little
evidence " to establish the extent of his injuries and the magistrate recommended a damage award of only $1,000. {¶ 6} Appell ee timely filed objections to the magistrate ' s decision arguing tha t the magistrate erred in valuing appellee ' s damages at $1,000 without providing a fair and reasonable opportunity to present evidence on the nature and extent of his injuries

. {¶ 7} In overruling appell ee ' s objection and adopting the magistrate ' s decision, the

c ourt of c

laims concluded that appell ee ' s failure to file a trial transcript in support of his objection required the court to accept the magistrate ' s factual findings and restrict its review to the magistrate ' s legal conclusions. The c ourt of c laims note d that the issues of liability and damages had not been bifurcated for trial and appell ee , pro se, was obligated to produce evidence to establish the extent of his injuries. Based on the magistrate 's finding that appell ee produced very little evidence on the issue of damages, the c ourt of c laims,

on August 3, 2020, overruled appell ee ' s objection, adopted the magistrate ' s recommend a t
i o n, and awarded appell ee $1,000. {¶ 8} Appell ee timely appealed to this court from the August 3, 2020 judgment. On November 9, 2020, while appell ee ' s appeal from the August 3, 2020 judgment was pendingNo. 21 A P

- 106 3

in c ase No. 20AP

- 419, appell ee filed a motion for partial relief from judgment, pursuant to Civ.R. 60(B) , in the c ourt of c laims. Appellee , repre sented by counsel, submitted the trial transcript with the motion. On December 3, 2020, this court issued a journal entry staying the appeal in c ase No. 20AP

- 419 and remanding the matter to the c ourt of c laims to hear and determine appell ee ' s motion for p artial relief from the August 3, 2020 j udgment

. {¶ 9} On February 8 , 2021, the c ourt of c laims issued a decision granting the motion for partial relief from judgment upon finding that a serious misunderstanding occurred at the trial regarding damages. The c ourt of c laims scheduled the case for an evidentiary hearing to redetermine appell ee ' s damages. {¶ 10} Appellant fil ed a timely notice of appeal to this court from the February 8 , 2021 judgment and appellee filed a motion to dismiss the appeal arguing the February 8 ,
2021 judgment
, was not a final, appealable order because the issue of appellee ' s damages
had not yet bee n determined

. In a memorandum decision issued by this court on July 13 , 2021, we denied the motion to dismiss the appeal concluding the February 8 , 2021 judgment " fits within the language of R.C. 2505.029(B)(3) and is a final, appealable order. " ( July 13 , 2021 M emo D ecision at 5. ) II. Assignment of Error {¶ 11} Appellant assigns the following error for our review:
The C ourt of C laims erred awarding Plaintiff relief under Ohio Rule of Civil Procedure 60(B)(5)

.
III. Standard of Review {¶ 12} A trial court ' s rul ing on a motion for relief from judgment, pursuant to Civ.R. 60(B) , will not be disturbed on appeal absent a showing of abuse of discretion. Retirement Mgt. Co. v. Nson g , 10th Dist. No. 15AP

- 876, 2017

- Ohio

- 5869, ¶ 15, citing Griffey v. Rajan
, 33 Ohio St.3d 75, 77 (1987)

. " ' The term " abuse of discretion " connotes more than an error of law or judgment; it implies that the court ' s attitude is unreasonable, arbitrary or
unconscionable. ' " Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983), quoting Sta te v. Adams , 62 Ohio St.2d 151, 157 (1980)

. " When applying an abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. " Nsong at ¶ 15 ; Berk v. Matthews , 53 Ohio St.3d 161, 169 (1990)

.No. 21 A P

- 106 4

IV. Legal Analys is A. Assignment of Error {¶ 13} In appellant ' s sole assignment of error, appellant asserts that t he c ourt of

c laims erred when it granted appell ee relief
, pursuant to Civ.R. 60(B)(5) , from the August 3, 202 0 judgment

. I disagree. {¶ 14} To prevail under Civ.R. 60(B) , the movant must show that (1) the movant has a meritorious defense or claim to present if relief is granted, (2) the movant is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) the mot ion is
made within a reasonable time. GTE Automatic Elec.
, Inc. v. ARC Industries , 47 Ohio St.2d 146 (1976), paragraph two of the syllabus

. The movant must satisfy all three of these requirements to obtain relief. State ex rel. Richard v. Seidner , 76 Oh io St.3d 149, 151 ( 1996 ) ; see also GTE Automatic Elec.
, Inc. at 151 (finding that the requirements under Civ.R. 60(B) " are independent and in the conjunctive, not the disjunctive " ). {¶ 15} " ' Civ.R. 60(B)(5) is intended as a catch

- all provision reflecting the inherent power of a court to relieve a person from the unjust operation of a judgment, but it is not to be used as a substitute for any of the other more specific provisions of Civ.R. 60(B)

. ' "
Wireless Resource LLC v. Garner , 10th Dist. No. 11AP

- 1038, 2012

- Ohio

- 2080, ¶ 16, quoting Caruso

- Ciresi, Inc. v. Lohman , 5 Ohio St.3d 64 (1983), paragraph one of the syllabus

. " The grounds for invoking this provision should be substantial. " Star
Merchandise
, LLC v. Haehn , 10th Dist. No. 16AP

- 39, 2016

- Ohio

- 8018, ¶ 32, citing Caruso

Ciresi at paragraph two of the syllabus. " ' The key requirements of Civ.R. 60(B)(5) are extraordinary circumstances and undue hardship. ' " Haehn at ¶ 32, quoting State ex rel.
Minnis v . Lewis , 10th Dist. No. 93AP

- 812, 1993 Ohio App. LEXIS 6458 (Dec. 30, 1993)

. {¶ 16} Relief under Civ.R. 60(B)(5) may be granted for court errors and omissions,

" which are ' distinct ' from mere errors in judgment that can be remedied through a timely appeal. " In re J.W. , 9th Dist. No. 26874, 2013

- Ohio

- 4368, ¶ 30, citing In re S.J. , 9th Dist. No. 23199, 2006

- Ohio

- 6381, ¶ 23

. For example, an attorney ' s abandonment of a client may

const itute an extraordinary circumstance justifying relief under Civ.R. 60(B)(5)

. Smith v.
Gilbert , 2d Dist. No. 2014

- CA

- 81, 2015

- Ohio

- 444, ¶ 14

. Similarly, the Supreme Court of
Ohio has held that " fraud upon the court " falls within the realm of Civ.R. 60(B)( 5)

. Coulson
v. Coulson , 5 Ohio St.3d 12 (1983), paragraph one of the syllabus

. Additionally, " [a] judge ' sNo. 21 A P

- 106 5

participation in a case which gives rise to the appearance of impropriety and possible bias could constitute grounds for relief under Civ.R. 60(B)(5 )

. " Volodkevich v. Volodkevich , 35 Ohio St.3d 152, 154 (1988)
, reconsideration granted in part , 36 Ohio St.3d 612 (1988)

. {¶ 17} This court has previously determined , however, that Civ.R. 60(B)(5) is not available to correct legal errors in judgments. For exam ple, a n assertion that the trial court committed a mistake of law when it granted summary judgment in favor of appellee is not the basis for relief from judgment under Civ.R. 60(B)(5)

. Haehn at ¶ 3 3. It is also true that

a party may not predicate a Civ.R. 60(B) motion for relief from judgment on issues that could have been corrected by timely appeal. Id

. {¶ 18} The c ourt of c

laims determined that this case presented extraordinary circumstances justifying relief under Civ.R. 60(B)(5) from the unjust operation of the

co urt ' s prior judgment

. The c ourt of c laims described the extraordinary circumstances justifying relief as follows:

When deciding whether extraordinary relief is justified, the Court believes it must take into consideration all the surrounding circumstances and determine whether a reasonable person in the same or similar position would have made the same decision. Plaintiff is an inmate in the custody of Defendant who participated in a trial held at a state institution. The parties agree that Pl aintiff actively prosecuted his case at every stage of this case. It is also undisputed that Plaintiff dismissed medical witnesses that he had subpoenaed to testify at trial. The Court finds that Plaintiff, through his motion and attachments, established t hat it was his intention to present damages evidence on the day of trial. It was only after he heard opposing counsel a nd the magistrate state several times that the only important issue needing addressed at trial was whether Defendant had notice of the at tack that Plaintiff began dismissing the witnesses there to testify regarding his injuries. Furthermore, Defendant also dismissed its medical witnesses. Additionally, Plaintiff limited his own testimony to the issue of liability. Upon review of the record, the Court finds that, absent the unique circumstances presented at this trial proceeding, Plaintiff reasonably would have called at least some of the subpoenaed medical witnesses to testify or, at the very least, provided testimony of his own regarding hi s injuries. Accordingly, the Court finds that relief from judgment is justified pursuant to Civ.R. 60( B )(5)

. ( Feb

. 8, 202 1 D ecision at 1 7

. )No. 21 A P

- 106 6

{¶ 19} Appellee maintains that t he record in this case supports the trial court ' s determination that relief under Civ.R. 60 (B)(5) was warranted. I agree. {¶ 20} There is no dispute that the trial at the correctional institution was not bifurcated as to the issues of liability and damages and that evidence relevant to both liability and damages would be received at the trial. Nevert heless, t he trial transcript shows that prior to hearing the evidence, the magistrate made the following comment on the
record: " One thing I would say before we start is, I

- - , I

- - just looking at the number of witnesses that have been listed on these pre trial statements, and I wanted to talk to everybody before we got started. " (Feb

. 6, 2020 Tr. at 6

. ) The transcript reveals that a confusing colloquy subsequently ensued regarding the particular liability question at issue. Immediately following this discussion, the m agistrate commented as follows: " So, just to focus, all we '

re really concerned about to day is whether ODRC had notice of this assault. With that in mind, I ' m hoping that can eliminate quite a few witness conflicts. " (Emphasis added.) (Tr. at 9

. ) The m agistrate subsequently informed appellee: " I don ' t want to get too bogged down in callin g it an assault or a fight. I m e an the important part is, did they have notice of the altercation

. " (Emphasis added.) (Tr. at 11

. ) The m agistrate ' s comment was followed up with the following colloquy:

The Court: I mean that ' s all that really matters. So I guess, Mr. Myers with that in mind, I kind of would forewarn you that I reserve the right

- - if I ' m hearing things I don ' t really think are relevant to the decision, I might just ask you to move along or say, hey, we don ' t really need to hear.
Mr. M yers: Absolutely The Court: Okay. (Tr. at 11

. )

{¶ 21} The trial transcript evidences the fact that appellee believed, based on the statements made by the m agistrate , that the court would only be entertaining evidence on
the issue of ODRC ' s notice of the impending assault. At one point during appellee ' s case in

c hief, the m agistrate asked appellee " who do you think you'll be calling after Mr.
Simonson ? " A

ppellee responded " since they ' re [sic] no t moving to any kind of healthcare
stuff. I think we ' ll wrap it up with Ms. Sherman. " (Tr. at 31

- 32

. )No. 21 A P

- 106 7

{¶ 22} After receiving the testimony of Ms. Sherman regarding the liability issue, the court bailiff informed the magistrate that " some medical staff [are] dow nstairs, and they told me about medical because they ' re all here. " The bailiff ' s notification to the magistrate prompted the following discussion:

The Court: It sounded to me like we weren ' t calling the medical people. Mr. Myers: Yeah. [Counsel for Defend ant]: We don ' t intend to

- - Mr. Myers: No, I

- - [Counsel for Defendant]: Okay, so I can

- - who can I release, then? The Court: Let me

- - one second. I just want to make it clear on the record. There ' s a lot of people talking. We

- - all the parties agree we ' re not calling the medical folks? Mr. Myers: Absolutely, yes, sir. [Counsel for Defendant]: Just to confirm, you ' re okay with releasing Dental Hygienist Ann Lovejoy? Mr. Myers: Yes. [Counsel for Defendant]: Okay. And Nurse Practitioner Tyler Niese? Mr. Myers: Yes. [Counsel for Defendant]: Okay. And Nurse Brooke Shaw? Mr. Myers: Yes. (Tr. at 5 3

- 5 5. )

{¶ 23} The above

- cited transcript references and the record of proceedings in the

c ourt of c

la ims support the conclusion that appellee was unfairly prevented from introducing evidence as to the nature and extent of his physical and emotional injuries
because of comments by the m agistrate, on the record
, which created confusion as to the
issues to b e determined at trial. The record also supports the conclusion by the c ourt of

c laims that " absent the unique circumstances presented at this trial proceeding, [appellee]
would have reasonably called at least some of the subpoenaed medical witnesses to te stify or, at the very least, provided testimony of his own regarding his injuries. " (Decision at 17

. )No. 21 A P

- 106 8

{¶ 24} O DRC first contends that the trial court erred when it consider ed appell ee ' s
pro se inmate status as a factor supporting relief under Civ.R. 60(B)(5)

. I disagree. {¶ 25} T his court has stated that " ' [c]ourts should not generally use Civ.R. 60(B)(1) to relieve pro se litigants who are careless or unfamiliar with the legal system

. ' " Gamble
Hartshorn
, LLC v. Lee , 10th Dist. No. 17AP

- 35, 2018

- Ohio

- 980, ¶ 2 6 , quoting Dayton Power & Light v. Holdren , 4th Dist. No. 07CA21, 2008

- Ohio

- 5121, ¶ 12

. We have also noted

" ' [a] party who is informed of court action against him and fails to seek legal assistance
does so at his risk and such conduct c annot be said to constitute " excusable neglect " under Civ.R. 60(B)(1) or (5) unless a compelling reason is presented, like a serious illness. ' "
Gamble Hartshorn
, LLC at ¶ 29, quoting Yuhanick v. Cooper , 7th Dist. No. 96

- CO

- 45, 1998 Ohio App. LEXIS 5527 (Nov. 16, 1998)

. {¶ 26} I t is reasonable to conclude from the transcript that appellee was dissuaded by the magistrate from producing witness testimony and other evidence regarding the extent and nature of his injuries. In my view, the transcript permits a n inference that appellee was given the impression by the magistrate that he would have an opportunity to present such evidence at a subsequent proceeding. {¶ 27} It is not lost on this court that appellee ' s opportunity to prepare his case for
trial was necessar ily mor e difficult given his status as an inmate in the custody and control of ODRC, the opposing party

. For example, R.C. 5120.21(C)(2) " ' imposes a limitation on

a n inmate ' s right of access to his own medical records as a restriction on his liberty impo sed
incident to his incarceration .' " Nicely v. Ohio Dept. of Rehab. & Corr.
, 10th Dist. No. 09AP

1 8 7, 2009

- Ohio

- 4386, ¶ 9, quoting Goings v. Dept. of Rehab. & Corr.
, 10th Dist. No. 90AP

1041, 1991 Ohio App. LEXIS 2527 (May 28, 1991)

. Under R.C. 5120.21(C)(2) , an inmate may obtain copies of his own medical records only " [u]pon the signed written request of the inmate to whom the record pertains together with the written request of either a licensed attorney at law or a licensed physician designated by the inmate. " In Goings , this court rejected an inmate ' s argument that R.C. 5120.21(C)(2) unfairly limited his right to prosecute a civil action against ODRC because it requires him to find a sympathetic physician willing to request his records. {¶ 28} Moreover, t he trial in this matter was conducted at an ODRC facility, and
each of the witnesses subpoenaed by appellee to give testimony on the nature and extent ofNo. 21 A P

- 106 9

his injuries w as an ODRC employee. Appellee ' s witnesses were no t independent fact witnesses or experts employed by, or under the control of appellee. Appellee subpoenaed these ODRC employe e s to appear at trial and the record shows that the witnesses were available to testify

. I also note that the magistrate refused to permit appellee to call a subpoenaed mental health professional employed by ODRC who was available to testify because the witness was not identified on appellee ' s initial pretrial statement. {¶ 29} Appellee nevertheless produced sufficient evidence at trial to prevail on the issue of liability

. T he record also shows that appellee adequately prepared his case for trial
on the issue of damages, even though his pro se inmate status presented certain disadvantag es. Under the particular circumstances of this case, it was certainly reasonable
for the c ourt of c

laims to concluded that appellee would have produced evidence to support a greater award of damages had the magistrate not created confusion and uncertainty regarding the issue to be decided at trial. {¶ 30} I n Reichert v. Reichert , 23 Ohio App.3d 67 (9th Dist.1985)
, the trial court entered judgment for defendant in a medical malpractice action. When one of the parties
discovered that the trial court had n ot revi ewed relevant deposition testimony the t rial court granted relief under Civ.R. 60(B)(5)

. The court of appeals affirmed
, concluding " it was an injustice for the trial court not to consider the medical deposition which it was obligated to consider. " Reiche rt at 68. {¶ 31} In Dunn Specialty Steels
, Inc. v. World Metals
, Inc ., 135 Ohio App.3d 367 (9th Dist.1999)
, the court of appeals held that t he trial court did not abuse its discretion in granting plaintiff relief under Civ.R. 60(B)(5) where the record showed that the trial court
had failed to consider an element of plaintiff ' s damages based on a mistaken belief that the evidence in support of plaintiff ' s damages violated the physical facts doctrine. In so holding, the court of appeals noted that the trial court has " considerable discretion " in determining whether to relieve a party of the unfair operation of its own judgment pursuant

to Civ.R. 60(B)(5)

. Dunn Specialty Steels
, Inc. at 371, citing Rowland v. Finkel , 33 Ohio App.3d 77 (9th Dist.1987)

. {¶ 32} Here, the c ourt of c laims initially overruled appell ee ' s objection to the magistrate 's decision and adopted the m agistrate ' s decision as its own. A fter be ing further
advised of the circumstances surrounding the damage award and having been providedNo. 21 A P

- 106 10

with the trial transcript in connection with the motion for relief from judgment
, the c ourt of c laims reached the conclusion t hat appellee had been unfairly deni ed an opportunity to present evidence regarding the nature and extent of his injuries because of several, on the record, comments made by the magistrate and opposing counsel that created an impression
that the only issue for trial was ODRC ' s notice of an impending assault on appellee. In making this ruling
, the c ourt of c laims considered appellee ' s status as pro se inmate in the custody of the opposing party in finding a reasonable person in appell ee ' s position would
have elected to release his medical wi tnesses and limit his own testimony to the liability
issue. On this record, and under these unusual circumstances, I cannot say that the c ourt of c laims abused its discretion when it gave some consideration to appellee ' s pro se status
in ruling on appelle e ' s motion for relief under Civ.R. 60(B)(5)

. {¶ 33} O DRC next contends that the trial court erred when it considered appell ee ' s claim for relief under Civ.R. 60(B)(5) after having ruled that appellee failed to establish excusable neglect under Civ.R. 60(B)(1)

. In support of this argument, O DRC relies on the

case Star Merchandise
, LLC v. Haeh n , 10th Dist. No. 16AP

- 39, 2016

- Ohio

- 8018 , wherein
this court stated Civ.R. 60 ( B)(5) cannot be used as a substitute for other specific provisions
of Civ.R. 60(B)

. Haehn at ¶ 3 2

. O DRC acknowledges, however, that relief under Civ.R. 60(B)(5) is available " ' where the operative facts are either different from and/or are in addition to those contemplated by Civ.R. 60(B)(1) through (4)

. ' " State ex rel. Minnis v. Lewis , 10th Dist. No. 93AP

- 812, 1993 Ohio App. LEXIS 6458 (1993), quoting Whitt v.
Bennett , 82 Ohio App.3d 792, 796 ( 10th Dist. 1992)

. {¶ 34} To be sure, a " mistake " for purposes of relief under Civ.R. 60(B)(1) is " a mistake of a party or a party ' s representa tive, not a mistake by a trial court in rendering its
decision. " Davidson v. West , 10th Dist. No. 18AP

- 268, 2019

- Ohio

- 224, ¶ 11

. In this case, however, appellee argued, and the c ourt of c laims found, the magistrate ' s confusion of the
issues caused or con tributed to appellee ' s decision to release witnesses who could have provided evidentiary support for an award of greater damages. Thus, the operative facts supporting relief under Civ.R. 60(B)(5) are different or in addition to those contemplated by Civ.R. 60(B)(1)

. {¶ 35} T here is no question in this case appellee ' s motion for relief from judgment was timely filed, and the record supports the conclusion that appellee was prepared toNo. 21 A P

- 106 11

present relevant evidence at trial t o establish both the nature and extent of his injuries

. The record also supports the conclusion that appellee released subpoenaed witnesses who could have provided such evidence as a result of a confusion of the issues created by the magistrate ' s, on the re cord, comments and discussions with opposing counsel . Appellee ' s misunderstanding of the issues for trial is further evidence by his decision to confine his own testimony primarily to the issue of ODRC ' s notice of the impending assault by his
cellmate rat her than expounding on the nature and extent of the injuries he suffered as a
result of the assault. {¶ 36} This court has explained that " ' [t] h e grounds for invoking Civ.R. 60(B)(5)
should be substantial. ' " Stuller v. Price , 10th Dist. No. 02AP

- 29, 2003

- Ohio

- 583, ¶ 49, quoting Caruso

- Ciresi at paragraph two of the syllabus. " The basis for relief must arise from circumstances chargeable to the court or otherwise beyond the control of the moving
party. Such a basis does not include an error or omission created by the failure of a party to produce evidence when that party has th e duty and the opportunity to do so. " Stuller at ¶ 49, citing Templin v. Grange Mut. Cas. Co.
, 2d Dist. No. 12261
, 1991 Ohio App. LEXIS

1739 (Apr. 8, 1991)

. {¶ 37} In Stuller, the trial court granted summary judgment to defendant in plaintiffs ' medical malpracti ce action. Plaintiffs

- appell ee s filed a motion for relief from the judgment arguing that their trial attorney mistakenly omitted certain dispositive averments from their expert physicians ' affidavit in opposition to defendant ' s motion for summary judgment

. The trial court denied the motion for relief from judgment and we affirmed. This court determined that the attorney ' s error was not the type of mistake that wou l d justify relief under Civ.R. 60(B)(5)

. In so holding, this court noted that " [a] ppellants ' failure to present admissible evidence to sustain their reciprocal burden in opposition to appellee ' s motion for summary judgment was entirely within their own control as imputed to them through the actio ns of counsel

. Thus, we do not find that the trial court abused its
discretion in [finding] * * * that they were [not] entitled to relief from judgment pursuant to Civ.R. 60(B)(5). " (Emphasis added.) Stuller at ¶ 50. {¶ 38} By contrast, appellee ' s decision in this case to release his medical witnesses and limit his own testimony to the issue of liability was not a failure attributable solely to appellee. A

ppellee was provided with notice that the trial at the correctional institution wasNo. 21 A P

- 106 12

not bifurcated as to t he issues of liability and damages and that he would be required to present evidence on both issues. The record shows that appellee was prepared to present evidence to support an award of damages in such a proceeding when he subpoenaed his
witnesses

. Con trary to ODRC ' s representation, the record shows that appellee understood both the nature and scope of the February 6, 2020 proceedings. {¶ 39} However, shortly a fter the proceeding commenced, comments by the magistrate on the record, and the magistrate ' s discu ssions with ODRC ' s counsel, led appellee to believe that the only issue to be decided at the institutional trial was ODRC ' s notice of the assault upon appellee by his cellmate. The record shows that neither the magistrate nor opposing counsel subsequently addressed or clarified the scope of the proceedings. Though ODRC had no legal obligation to correct any misconception created by the m agistrate ' s comments, the magistrate has a duty of fairness and impartiality to clarify the issues to be determined at trial. {¶ 40} The c ourt of c

laims found that a reasonable person in appellee ' s position would have reached the same conclusion regarding the scope of the trial and likely would have released the subpoenaed medical witnesses and limited his own test imony to the issue of liability. When applying an abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court

. T he purpose of Civ. R. 60(B)(1) through (5) is to afford " relief in the interest of justice. " Blasco v. Mislik , 69 Ohio St.2d 684, 688 (1982)

. " Any doubt should be resolved in favor of the motion to vacate so that cases may
be decided on the merits. " Id. at 688. The c ourt of c laims determined the issue of appellee ' s damages had never been fairly litigated because appellee did not have a fair opportunity to present evidence establishing the nature and extent of his injuries. On this record, I cannot say that the c ourt of c laims acted arbitrarily, unreasonably or cap riciously when it determined that this case presented the type of extraordinary circumstances justif ying relief
from the unfair operation of the court ' s prior judgment

. {¶ 41} For the foregoing reasons, appellant ' s sole assignment of error is overruled.
V. Co nclusion {¶ 42} Having overruled appellant ' s sole assignment of error, the judgment of the
Court of Claims of O hio is affirmed

. Judgment affirmed.No. 21 A P

- 106 13

LUPER SCHUSTER , P.J., concurring in judgment only. DORRIAN , J., concur ring in judgment only

.

_______________