[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. 2019-00261JD)

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

JAMISON, J.

{¶ 1} Defendant-appellant, Ohio Department of Rehabilitation and Correction

("ODRC"), appeals from a judgment of the Court of Claims of Ohio granting plaintiffappellee's motion for relief from judgment. The judgment of the Court of Claims of Ohio is

affirmed.

I. Facts and Procedural History

{¶ 2} In July 2017, appellee was an inmate in the custody and control of appellant

at theAllen-Oakwood Correctional Institution. According to appellee, he informed ODRC's 

employees that other inmates, including his cellmate, Brock Daniels, were planning to 
No. 21AP-106 2

assault him because appellee 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 inmates. 

{¶ 3} At trial, appellee presented evidence that he informed the CO he feared for 

his safety and needed protection from Daniels, but the CO told him that he was not sure he 

could help appellee because of a staffing shortage on the holiday. Appellee was not afforded 

any additional protection and on July 4, 2017, he was attacked by Daniels and injured.

{¶ 4} On February 28, 2019, appellee filed his complaint against ODRC in the 

Court of Claims of Ohio alleging negligence. On February 6, 2020, a magistrate of the court 

of claims conducted a bench trial at the correctional institution. On June 8, 2020, the 

magistrate issued a decision recommending judgment for appellee. 

{¶ 5} The magistrate found that appellee proved he sustained injuries on July 4, 

2017, when he was assaulted by his cellmate, and that ODRC was at fault because it had 

constructive notice of the impending assault. Accordingly, the magistrate found in favor of 

appellee on his negligence claim and recommended judgment for appellee. On the issue of 

appellee's damages, however, the magistrate found that appellee "produced very little 

evidence" to establish the extent of his injuries and the magistrate recommended a damage 

award of only $1,000. 

{¶ 6} Appellee timely filed objections to the magistrate's decision arguing that 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 appellee's objection and adopting the magistrate's decision, the 

court of claims concluded that appellee'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 court of claims noted that the issues of 

liability and damages had not been bifurcated for trial and appellee, pro se, was obligated 

to produce evidence to establish the extent of his injuries. Based on the magistrate's finding 

that appellee produced very little evidence on the issue of damages, the court of claims, 

on August 3, 2020, overruled appellee's objection, adopted the magistrate's recommendat

ion, and awarded appellee $1,000. 

{¶ 8} Appellee timely appealed to this court from the August 3, 2020 judgment. On 

November 9, 2020, while appellee's appeal from the August 3, 2020 judgment was pending 
No. 21AP-106 3

in case No. 20AP-419, appellee filed a motion for partial relief from judgment, pursuant to 

Civ.R. 60(B), in the court of claims. Appellee, represented by counsel, submitted the trial 

transcript with the motion. On December 3, 2020, this court issued a journal entry staying 

the appeal in case No. 20AP-419 and remanding the matter to the court of claims to hear 

and determine appellee's motion for partial relief from the August 3, 2020 judgment.

{¶ 9} On February 8, 2021, the court of claims issued a decision granting the 

motion for partial relief from judgment upon finding that a serious misunderstanding 

occurred at the trial regarding damages. The court of claims scheduled the case for an 

evidentiary hearing to redetermine appellee's damages. 

{¶ 10} Appellant filed 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 been 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 Memo Decision at 5.)

II. Assignment of Error

{¶ 11} Appellant assigns the following error for our review:

The Court of Claims erred awarding Plaintiff relief under Ohio 

Rule of Civil Procedure 60(B)(5). 

III. Standard of Review

{¶ 12} A trial court's ruling 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. Nsong, 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 State 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. 21AP-106 4

IV. Legal Analysis

A. Assignment of Error

{¶ 13} In appellant's sole assignment of error, appellant asserts that the court of 

claims erred when it granted appellee relief, pursuant to Civ.R. 60(B)(5), from the 

August 3, 2020 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 motion 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 Ohio 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 CarusoCiresi 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 

constitute 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's 
No. 21AP-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 example, an 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 ¶ 33. 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 court of claims determined that this case presented extraordinary 

circumstances justifying relief under Civ.R. 60(B)(5) from the unjust operation of the 

court's prior judgment. The court of claims 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 Plaintiff 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 that it was his intention 

to present damages evidence on the day of trial. It was only 

after he heard opposing counsel and the magistrate state 

several times that the only important issue needing addressed 

at trial was whether Defendant had notice of the attack 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 his injuries. Accordingly, the Court finds that relief 

from judgment is justified pursuant to Civ.R. 60(B)(5).

(Feb. 8, 2021 Decision at 17.)
No. 21AP-106 6

{¶ 19} Appellee maintains that the 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. Nevertheless, the 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 pretrial 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 magistrate commented as follows: "So, just to 

focus, all we're really concerned about today 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 magistrate subsequently informed appellee: "I don't want to get too 

bogged down in calling it an assault or a fight. I mean the important part is, did they have 

notice of the altercation." (Emphasis added.) (Tr. at 11.) The magistrate'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. Myers: Absolutely

The Court: Okay. 

(Tr. at 11.)

{¶ 21} The trial transcript evidences the fact that appellee believed, based on the 

statements made by the magistrate, 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

chief, the magistrate asked appellee "who do you think you'll be calling after Mr. 

Simonson?" Appellee responded "since they're [sic] not moving to any kind of healthcare 

stuff. I think we'll wrap it up with Ms. Sherman." (Tr. at 31-32.)
No. 21AP-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] downstairs, 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 Defendant]: 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 53-55.)

{¶ 23} The above-cited transcript references and the record of proceedings in the 

court of claims 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 magistrate, on the record, which created confusion as to the 

issues to be determined at trial. The record also supports the conclusion by the court of 

claims that "absent the unique circumstances presented at this trial proceeding, [appellee]

would have reasonably called at least some of the subpoenaed medical witnesses to testify 

or, at the very least, provided testimony of his own regarding his injuries." (Decision at 17.)
No. 21AP-106 8

{¶ 24} ODRC first contends that the trial court erred when it considered appellee's 

pro se inmate status as a factor supporting relief under Civ.R. 60(B)(5). I disagree.

{¶ 25} This 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, ¶ 26, 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 cannot 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} It 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 an 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 necessarily more 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 

an inmate's right of access to his own medical records as a restriction on his liberty imposed 

incident to his incarceration.' " Nicely v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP187, 2009-Ohio-4386, ¶ 9, quoting Goings v. Dept. of Rehab. & Corr., 10th Dist. No. 90AP1041, 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, the 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 of 
No. 21AP-106 9

his injuries was an ODRC employee. Appellee's witnesses were not independent fact 

witnesses or experts employed by, or under the control of appellee. Appellee subpoenaed 

these ODRC employees 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. The 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 

disadvantages. Under the particular circumstances of this case, it was certainly reasonable 

for the court of claims 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} In 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 not reviewed relevant deposition testimony the trial 

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." Reichert 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 the 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 court of claims initially overruled appellee's objection to the 

magistrate's decision and adopted the magistrate's decision as its own. After being further 

advised of the circumstances surrounding the damage award and having been provided 
No. 21AP-106 10

with the trial transcript in connection with the motion for relief from judgment, the court 

of claims reached the conclusion that appellee had been unfairly denied 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 court of claims considered appellee's status as pro se inmate in the 

custody of the opposing party in finding a reasonable person in appellee's position would 

have elected to release his medical witnesses and limit his own testimony to the liability 

issue. On this record, and under these unusual circumstances, I cannot say that the court 

of claims abused its discretion when it gave some consideration to appellee's pro se status 

in ruling on appellee's motion for relief under Civ.R. 60(B)(5).

{¶ 33} ODRC next contends that the trial court erred when it considered appellee'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, ODRC relies on the 

case Star Merchandise, LLC v. Haehn, 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 ¶ 32. ODRC 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 representative, 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 court of claims found, the magistrate's confusion of the 

issues caused or contributed 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} There 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 to 
No. 21AP-106 11

present relevant evidence at trial to 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 record, 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 rather 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]he 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 the 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 malpractice action. Plaintiffs-appellees 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 would 

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 actions 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. Appellee was provided with notice that the trial at the correctional institution was 
No. 21AP-106 12

not bifurcated as to the 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. Contrary to ODRC's representation, the record shows that appellee understood 

both the nature and scope of the February 6, 2020 proceedings. 

{¶ 39} However, shortly after the proceeding commenced, comments by the 

magistrate on the record, and the magistrate's discussions 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 magistrate's comments, the magistrate has a duty of fairness and impartiality to 

clarify the issues to be determined at trial.

{¶ 40} The court of claims 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 testimony 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. The 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 court of claims 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 court of claims acted arbitrarily, unreasonably or capriciously when it 

determined that this case presented the type of extraordinary circumstances justifying 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. Conclusion

{¶ 42} Having overruled appellant's sole assignment of error, the judgment of the 

Court of Claims of Ohio is affirmed. 

Judgment affirmed.
No. 21AP-106 13

LUPER SCHUSTER, P.J., concurring in judgment only.

DORRIAN, J., concurring in judgment only.

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