[Cite as Ohi-Rail v. Barnett, 2010-Ohio-1549.]

STATE OF OHIO, JEFFERSON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

OHI-RAIL CORPORATION, 

 PLAINTIFF-APPELLEE, 

VS. 

THOMAS BARNETT, ET AL., 

 DEFENDANTS-APPELLANTS. 

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 CASE NO. 09-JE-18 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas of Jefferson County, Ohio 

Case No. 08CV386 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Attorney Shawn M. Blake 

4110 Sunset Blvd. 

Steubenville, Ohio 43952 

For Defendants-Appellants Attorney Edward F. Siegel 

27600 Chagrin Blvd. #340 

Cleveland, Ohio 44122 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

 

 

 Dated: March 31, 2010 
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DONOFRIO, J. 

{¶1} Defendants-appellants Thomas and Florence Barnett (the Barnetts) 

appeal the denial of their motion for relief from a default judgment awarded in favor of 

plaintiff-appellee Ohi-Rail Corp. which resulted in a monetary damage award of 

$174,889.20. 

{¶2} On June 27, 2008, Ohi-Rail sued the Barnetts for breach of fiduciary 

duty, fraud, accounting, conversion, theft of mail, defamation, and tortious 

interference with business. Thomas Barnett was employed as the general manager 

of Ohi-Rail and is a minority shareholder. Thomas’ wife, Florence, was also 

employed by Ohi-Rail. Ohi-Rail accused the Barnetts of misappropriating the 

company’s money and assets. They allegedly conspired between themselves and 

with others to conceal the theft of corporate records, tools, office equipment, and 

railroad supplies. Ohi-Rail also accused the Barnetts of mismanagement, using the 

company’s phone to make costly international phone calls, and posting libelous 

statements against Ohi-Rail on internet message boards. 

{¶3} The Barnetts refused service by certified mail on July 2, 2008, and 

ordinary mail on July 11, 2008. After the Barnetts failed to answer, Ohi-Rail moved 

for default judgment. The Barnetts also refused service of Ohi-Rail’s default 

judgment motion. 

{¶4} On August 18, 2008, the trial court granted the motion for default 

judgment. The court noted that Ohi-Rail had filed its complaint on June 27, 2008, 

and that the Barnetts had refused service by certified mail on July 2, 2008. The court 

also noted that the Barnetts were served by regular mail (despite their refusal to 

accept the mailings) as evidenced by the clerk of courts having filed a “Certificate of 

Mailing” on July 9, 2008, pursuant to Civ.R. 4.6(C) (governing methods of service 

when service is refused). The court noted the Barnetts’ refusal to accept service of 

the default judgment motion, their failure to plead or otherwise defend the action, and 

proceeded to grant default judgment in Ohi-Rail’s favor and set a hearing to 

determine damages. 
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{¶5} Following the hearing on damages and on September 2, 2008, the 

court awarded Ohi-Rail $174,889.20 in damages plus postjudgment interest and 

court costs. The Barnetts refused service of both court orders. 

{¶6} On November 18, 2008, proceedings in aid of execution were instituted 

on the affidavit of Ohi-Rail’s attorney, and the Barnetts were ordered to submit to an 

examination as judgment debtors on December 8, 2008. Apparently, the Barnett’s 

appeared in court for the debtor’s exam and Thomas acknowledged possessing five 

shares of Ohi-Rail stock. Thereafter, the court granted Ohi-Rail’s motion for 

attachment of the Barnetts’ property other than personal earnings, specifically the five 

shares of Ohi-Rail stock held by them. 

{¶7} On December 16, 2008, the court was served notice that Thomas 

Barnett had filed a pro se affidavit of disqualification in the Ohio Supreme Court on 

December 11, 2008, seeking to have Judge Bruzzese removed from the case. He 

alleged that Judge Bruzzese had served as legal counsel for Ohi-Rail between 1990 

and 1992. The following day, Judge Bruzzese signed an order transferring the case 

to Judge Henderson. Consequently, the Ohio Supreme Court subsequently 

dismissed the affidavit of disqualification as moot. 

{¶8} On December 31, 2008, Ohi-Rail filed a motion to compel the Barnetts 

to produce the five shares of Ohi-Rail stock. Apparently, the sheriff’s department 

went to retrieve them from the Barnetts and Thomas claimed he could no longer find 

them and provided only a photocopy of one of them. 

{¶9} On January 8, 2009, the court was served notice that Thomas had filed 

a pro se affidavit of disqualification in the Ohio Supreme Court on January 5, 2009, 

this time seeking to have Judge Henderson removed from the case. Thomas implied 

that Judge Henderson could not issue any orders in aid of execution of the judgment 

since the judgment that had been entered by Judge Bruzzese was improper due to 

his bias stemming from his having served as counsel for Ohi-Rail. Thomas further 

asserted that having the case heard in Jefferson County and presided over by any of 

its judges created an appearance of impropriety since Ohi-Rail’s vice president was a 
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former county commissioner and its majority shareholder had an ownership stake in 

many Jefferson County businesses and was heavily involved in the community and 

politics. The Ohio Supreme Court subsequently denied the affidavit of 

disqualification, characterizing Thomas’ allegations as vague and unsubstantiated. 

{¶10} The court heard Ohi-Rail’s motion to compel on January 12, 2009. The 

Barnetts appeared without counsel. The court ordered Thomas to execute an 

“Affidavit of Lost Stock Certificate” as well as a duplicate Ohi-Rail stock certificate 

signifying the transfer of his five shares to Ohi-Rail. The court then set the matter for 

stock valuation for January 26, 2009. 

{¶11} On January 26, 2009, Ohi-Rail appeared through its attorney and the 

Barnetts again appeared without counsel. The court determined the value of the five 

shares of Ohi-Rail stock at $15,300.00 and deducted that amount from the default 

judgment of $174,889.20. 

{¶12} Over two months later on April 2, 2009, the Barnetts, now represented 

by counsel, filed a Civ.R. 60(B)(5) motion for relief from the default judgment entered 

on August 18, 2008. The only reason they advanced to set aside that judgment was 

because it had been entered by Judge Bruzzese who had represented Ohi-Rail in the 

past, calling into question his impartiality. 

{¶13} Judge Henderson held a hearing on the motion on April 13, 2009, and 

in an entry filed the following day, overruled the motion finding that there was no valid 

reason to justify the requested relief. This appeal followed. 

{¶14} The Barnetts raise three assignments of error. The Barnett’s first 

assignment of error states: 

{¶15} “THE FIRST TRIAL COURT JUDGE ERRED WHEN HE FAILED TO 

RECUSE HIMSELF IMMEDIATELY UPON LEARNING THE IDENTITY OF THE 

PARTIES TO THE DISPUTE.” 

{¶16} The Barnetts argue that Judge Bruzzese should have recused himself 

from this case when he learned the identity of the litigants. The Barnetts argue that 

Judge Bruzzese’s representation of Ohi-Rail before becoming a judge called into 
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question his impartiality and required him to recuse in accordance with the Code of 

Judicial Conduct Canon 3(E)(1). Since he did not recuse himself until after entering 

default judgment against them, they contend that judgment was in error and must be 

set aside. 

{¶17} In response, Ohi-Rail argues that prior representation of a party by a 

judge on matters wholly unrelated to matters presently before the judge does not 

mandate judicial disqualification, absent a specific showing of actual bias on the part 

of the judge. Ohi-Rail points out that Canon 3(E)(1)(b) of the Code of Judicial 

Conduct requires a judge to be disqualified only if they “served as a lawyer in the 

matter in controversy.” Since Judge Bruzzese did not serve as the lawyer in the 

present matter and served as its counsel over seventeen years ago, Ohi-Rail 

maintains that Judge Bruzzese was not required to recuse himself. Ohi-Rail also 

argues that his ruling on its motion for default judgment was perfunctory and did not 

present the opportunity for an exercise of discretion. 

{¶18} Indeed, it has been held that “[p]rior representation of a party by a judge 

* * * on matters wholly unrelated to matters presently pending before the judge does 

not mandate judicial disqualification, absent a specific showing of actual bias on the 

part of the judge.” In re Disqualification of Rothgery, 117 Ohio St.3d 1250, 1251, 

2005-Ohio-7152, 885 N.E.2d 245. Here, the Barnetts failed to make a specific 

showing of actual bias on the part of the trial court judge. 

{¶19} Nonetheless, a party cannot use a Civ.R. 60(B) motion for relief from 

judgment as a substitute for a timely appeal or as a means to extend the time for 

filing an appeal from the original judgment. Key v. Mitchell (1998), 81 Ohio St.3d 89, 

90-91, 689 N.E.2d 548. In discussing the reason for not allowing such appeals, the 

Ohio Supreme Court has stated: 

{¶20} “Such procedural devices cannot be used in order to obtain review of a 

judgment where a timely appeal was not filed. If we were to hold differently, 

judgments would never be final because a party could indirectly gain review of a 

judgment from which no timely appeal was taken by filing a motion for 
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reconsideration or a motion to vacate judgment.” State ex rel. Durkin v. Ungaro

(1988), 39 Ohio St.3d 191, 193, 529 N.E.2d 1268. 

{¶21} In this case, the trial court entered default judgment on August 18, 

2008. The Barnetts waited over seven and a half months before filing their Civ.R. 

60(B) motion on April 2, 2009. They did not file a notice of appeal until May 8, 2009, 

after the trial court overruled their motion for relief from judgment. While the Barnetts’ 

notice of appeal perfected an appeal from the court’s April 14, 2009 judgment 

overruling their Civ.R. 60(B) motion, it was untimely as to the August 18, 2008 

judgment entry. 

{¶22} Accordingly, for all the foregoing reasons, the Barnetts’ first assignment 

of error is without merit. 

{¶23} The Barnetts’ second assignment of error states: 

{¶24} “THE TRIAL COURT ERRED WHEN THE SECOND JUDGE RULED 

THAT HE LACKED DISCRETION TO VACATE THE DEFAULT JUDGMENT 

ISSUED BY THE FIRST JUDGE WHO HAD THE OBVIOUS CONFLICT OF 

INTEREST[.] (TR. AT 5, LINES 4-9; AT 20, LINES 4-10)” 

{¶25} The Barnetts take issue with the following comments made by the trial 

court during the hearing on their motion for relief from judgment: 

{¶26} “THE COURT: However, I will note that there was -- there was a 

motion for default judgment that was granted, so I don’t see where there is any 

discretion that the Court would have had to use. All the Court would have looked at 

would have been was there an answer filed or wasn’t there an answer filed.” 

(04/13/2009 Hearing, Tr. 5.) 

{¶27} “THE COURT: If there had been any discretion involved in that 

decision, then I might be inclined to agree with you. Judge Bruzzese was ruling 

solely upon the record, upon whether there had been service, upon whether there 

had been an answer, whether it had been timely on that basis.” (04/13/2009 Hearing, 

Tr. 20.) 
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{¶28} It is clear form these comments that the second trial court judge (Judge 

Henderson) was not referring to his own discretion in ruling on the Barnetts’ motion 

for relief from judgment but rather to the discretion of the first trial court judge (Judge 

Bruzzese) in ruling upon Ohi-Rail’s motion for default judgment. Ohi-Rail sued the 

Barnetts. The Barnetts continually refused service and failed to file an answer. 

Consequently, there was nothing left for the first trial court judge to do but to enter 

default judgment against them. Although a trial court is generally vested with 

discretion in deciding whether to grant default judgment, the facts and circumstances 

of this case left little or no discretion to the first trial court judge. He simply had to 

enter judgment since it was obvious that the Barnetts were not going to appear and 

defend themselves. 

{¶29} Accordingly, the Barnetts’ second assignment of error is without merit. 

{¶30} The Barnetts’ third assignment of error states: 

{¶31} “THE COURT ERRED WHEN THE SECOND JUDGE FAILED TO 

ANALYZE APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT 

TO THE HOLDING OF GTE AUTOMATIC ELECTRIC, INC. vs. ARC INDUSTRIES 

(1976) 47 Oh St. 146. (TR. AT 5).” 

{¶32} A trial court may only grant relief from judgment in the manner provided 

by Civ.R. 60. In re Estate of Dotson, 7th Dist. No. 01-CA-97, 2002-Ohio-6889, at ¶18. 

The standard of review used to evaluate the trial court’s decision to deny or grant a 

Civ.R. 60(B) motion is abuse of discretion. Preferred Capital, Inc. v. Rock N Horse, 

Inc., 9th Dist. No. 21703, 2004-Ohio-2122, at ¶9. “‘Abuse of discretion’ means 

unreasonable, arbitrary, or unconscionable.” State ex rel. Cranford v. Cleveland, 103 

Ohio St.3d 196, 2004-Ohio-4884, 814 N.E.2d 1218, ¶24. 

{¶33} The Ohio Supreme Court set out the controlling test for Civ.R. 60(B) 

motions in GTE Automatic Elec., Inc. v. Arc Industries, Inc. (1976), 47 Ohio St.2d 

146, 351 N.E.2d 113. The court stated: 

{¶34} “To prevail on a motion brought under Civ.R. 60(B), the movant must 

demonstrate that: (1) the party has a meritorious defense or claim to present if relief 
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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.” Id. at paragraph two 

of the syllabus. 

{¶35} The grounds for relief under the second GTE element are: 

{¶36} “(1) [M]istake, 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.” Civ.R. 60(B). 

{¶37} The Barnetts’ argue that the trial court did not analyze their Civ.R. 60(B) 

motion for relief from judgment under the requirements set forth in GTE. Indeed, the 

trial court’s judgment entry does not specifically indicate consideration of the three 

elements set forth in GTE. The entry simply stated that there are no valid reasons for 

granting relief under Civ.R. 60(B)(5). The court reasoned that the Barnetts’ “various 

attempts to avoid service * * * do not constitute valid reasons for relief as there was 

proper service and no irregularities in the granting of the default exist.” However, a 

review of the transcript of the April 13, 2009 hearing reveals that the Barnetts’ motion 

was presented and heard within the context of the three requirements set forth in 

GTE. The court specifically allowed each side to address each of the requirements; 

although, the hearing focused primarily on GTE’s second prong – whether the 

Barnetts were entitled to relief under Civ.R. 60(B)(5)’s catch-all provision. The court’s 

subsequent entry denying the motion simply reflects the direction that discourse took 

and the main reason for which the court believed the Barnetts had not met the GTE

test. 
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{¶38} Turning to an application of GTE to this case, the Barnetts maintain that 

they were prepared to testify as to meritorious defenses to Ohi-Rail’s claims, that 

they were entitled to relief under Civ.R. 60(B)(5)’s catch-all provision because of 

Judge Bruzzese’s conflict of interest, and that their motion for relief from judgment 

was timely. 

{¶39} As to GTE’s first prong, it appears that Thomas Barnett was prepared to 

testify to various defenses to Ohi-Rail’s claims and counterclaims of his own. For 

example, the Barnetts’ attorney disputed Ohi-Rail’s claim that Thomas had stolen 

company equipment. Apparently, Thomas alleges that the equipment was his and 

that he loaned it to the company. (Tr. 9.) He claims that Ohi-Rail has wrongfully 

continued to use the equipment following his dismissal without paying him rent. (Tr. 

10.) As for the phone bills, Thomas maintains that he had been repaying the 

company for those charges on a monthly basis until he was fired. (Tr. 9-10.) The 

Barnetts claim that Thomas was not allowed to testify as to these defenses and 

counterclaims. 

{¶40} A thorough review of the hearing transcript does not support the 

Barnetts’ argument on this issue. Although Thomas did not testify, the trial court did 

not specifically disallow Thomas to testify concerning his defenses and 

counterclaims. Moreover, the Barnetts’ attorney was given ample opportunity to 

present arguments concerning the GTE’s first prong and proceeded to do so. OhiRail characterizes the court’s treatment of the first prong as an outright rejection of 

the Barnetts’ proposed defenses and counterclaims. Rather, as discussed earlier, 

the focus of the hearing shifted to the perceived absence of GTE’s second prong. 

{¶41} Turning to the second prong, whether the Barnetts are entitled to relief 

under Civ.R. 60(B)(5)’s catch-all provision – “any other reason justifying relief from 

the judgment” – is the pivotal question in this case. The Barnetts contend that Judge 

Bruzzese’s prior representation of Ohi-Rail mandated recusal rendering his entry of 

default judgment ineffective and unlawful. 
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{¶42} Civ.R. 60(B)(5)’s catch-all provision is to be used sparingly only when 

the grounds are substantial. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 

66, 448 N.E.2d 1365. See, also, Staff Note to Civ.R. 60(B)(5) (providing fraud upon 

the court as an example; more specifically, the bribing of a juror, not by the adverse 

party, but by some third person). Pertinent to this prong, it should again be pointed 

out here that it has been established that Civ.R. 60(B) is not a substitute for a direct 

appeal of the judgment. Key v. Mitchell (1998), 81 Ohio St.3d 89, 90-91, 689 N.E.2d 

548; Doe v. Trumbull Cty. Child. Serv. Bd. (1986), 28 Ohio St.3d 128, 131, 28 OBR 

225, 502 N.E.2d 605. See, also, Colley v. Bazell (1980), 64 Ohio St.2d 243, 245, 18 

O.O.3d 442, 416 N.E.2d 605. Moreover, the rule cannot be used to circumvent or 

extend the time for filing an appeal. Blasco v. Mislik (1982), 69 Ohio St.2d 684, 686, 

23 O.O.3d 551, 433 N.E.2d 612. 

{¶43} The Barnetts contend that Judge Bruzzese’s prior representation of 

Ohi-Rail was reason enough to constitute “any other reason justifying relief from the 

judgment.” Concerning Judge Bruzzese’s prior representation of Ohi-Rail, the 

Barnetts rely on Canon 3(E)(1) of the Code of Judicial Conduct. At the time Judge 

Bruzzese presided over this case, Canon 3(E)(1) of the Code of Judicial Conduct 

governed disqualification of judges and provided that: 

{¶44} “A judge shall disqualify himself or herself in a proceeding in which the 

judge’s impartiality might reasonably be questioned, including but not limited to 

instances where: 

{¶45} (“a) The judge has a personal bias or prejudice concerning a party or a 

party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the 

proceeding; 

{¶46} “(b) The judge served as a lawyer in the matter in controversy, a lawyer 

with whom the judge previously practiced law served during such association as a 

lawyer concerning the matter, or the judge has been a material witness concerning 

the matter; 
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{¶47} “(c) The judge knows that he or she, individually or as a fiduciary, or the 

judge's spouse, parent or child wherever residing, or any other member of the judge’s 

family residing in the judge’s household, has an economic interest in the subject 

matter in controversy or in a party to the proceeding or has any other more than a de 

minimis interest that could be substantially affected by the proceeding; 

{¶48} “(d) The judge or the judge’s spouse, or a person within the third degree 

of relationship to either of them, or the spouse of such a person: 

{¶49} “(i) Is a party to the proceeding, or an officer, director, or trustee of a 

party; 

{¶50} “(ii) Is acting as a lawyer in the proceeding; 

{¶51} “(iii) Has acted as a judge in the proceeding; 

{¶52} “(iv) Is known by the judge to have an economic interest that could be 

substantially affected by the proceeding;” 

{¶53} “(v) Is to the judge’s knowledge likely to be a material witness in the 

proceeding.”1

{¶54} On their face, subsections (c) and (d) of Canon 3(E)(1) have no 

application to this case. Instead, the only subsections of relevance in this case are 

(a) and (b).2

 The Barnetts’ main contention is that Judge Bruzzese’s impartiality was 

called into question because of his prior representation of Ohi-Rail. However, as 

Canon 3(E)(1)(b) makes clear, a judge is required to disqualify themselves only if 

they “served as a lawyer in the matter in controversy.” Here, Judge Bruzzese did not

serve as a lawyer in the matter in controversy. He ceased his representation of OhiRail over seventeen years ago. Therefore, Judge Bruzzese was not required to 

disqualify himself based on his prior representation of Ohi-Rail since he did not serve 

as a lawyer in any matters that led to the present controversy. 

{¶55} Canon 3(E)(1)(a) requires a judge to disqualify themselves if they have 

“a personal bias or prejudice concerning a party or a party’s lawyer.” Also, caselaw 

 

1. These Canons were superseded by a new Code of Judicial Conduct on March 1, 2009. 

2. Subsections (a) and (b) of Canon 3(E)(1) are now found in Jud. Cond. Rule 2.11(A)(1) and (7)(a), 

respectively. 
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provides that “[p]rior representation of a party by a judge * * * on matters wholly 

unrelated to matters presently pending before the judge does not mandate judicial 

disqualification, absent a specific showing of actual bias on the part of the judge.” In 

re Disqualification of Rothgery, 117 Ohio St.3d 1250, 1251, 2005-Ohio-7152, 885 

N.E.2d 245. Here, the Barnetts have failed to show any actual bias or prejudice on 

the part of Judge Bruzzese. As already indicated, he did not serve as a lawyer in any 

of the matters that led to the present controversy and it had been over seventeen 

years since Judge Bruzzese last represented Ohi-Rail. Without more evidence, prior 

representation of a party over seventeen years ago by itself is simply not enough to 

demonstrate actual bias or prejudice. The Barnetts have failed to elucidate any 

specific facts that would establish that Judge Bruzzese was biased or prejudiced 

against them. In the absence of any specific facts establishing that Judge Bruzzese 

was biased or prejudiced against the Barnetts, Judge Bruzzese was not required to 

disqualify himself under Canon 3(E)(1)(a). 

{¶56} Importantly, there was little to no opportunity for Judge Bruzzese to 

exercise any prejudice or bias against the Barnetts, or for which his impartiality might 

reasonably be questioned. Ohi-Rail sued the Barnetts. They continually and 

repeatedly refused service and failed to file an answer. Consequently, there was 

nothing left for Judge Bruzzese to do but to enter default judgment against them. 

Although a trial court is generally vested with discretion in deciding whether to grant 

default judgment, the facts and circumstances of this case left little or no discretion to 

Judge Bruzzese. He simply had to enter judgment since it was obvious that the 

Barnetts were not going to appear and defend themselves. In sum, the filing of their 

motion for relief from judge four months after they first appeared in court and nine 

months after they refused service of the complaint was an attempt to substitute for a 

direct appeal of the judgment and did not present substantial grounds for relief. 

{¶57} Accordingly, the Barnetts’ third assignment of error is without merit. 
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{¶58} The judgment of the trial court is affirmed. 

Vukovich, P.J., concurs. 

Waite, J., concurs.