[Cite as Timmons v. Emch, 2014-Ohio-3400.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

John Timmons, : 

 

 Plaintiff-Appellant, : No. 14AP-146 

 (M.C. No. 2011 CVE 045771) 

v. : 

 (REGULAR CALENDAR) 

Paul Emch, : 

 Defendant-Appellee. : 

 

 

D E C I S I O N 

Rendered on August 5, 2014 

 

John Timmons, pro se. 

White, Getgey & Meyer Co., LPA, C. Joseph McCullough and 

David J. Oberly, for appellee. 

 

APPEAL from the Franklin County Municipal Court 

LUPER SCHUSTER, J. 

{¶ 1} Plaintiff-appellant, John Timmons, pro se, appeals from an entry and order 

of the Franklin County Municipal Court denying appellant's Civ.R. 60(B) motion for relief 

from judgment. Because the trial court did not abuse its discretion in denying the Civ.R. 

60(B) motion, we affirm. 

I. Facts and Procedural History 

{¶ 2} On December 5, 2011, appellant filed a complaint against defendantappellee, Paul Emch, and appellee's insurance company to recover monetary damages for 

property loss and personal injury following a 2009 automobile accident caused by 

appellee's alleged negligence. Appellee answered the complaint on January 18, 2012. 

The trial court granted the insurance company's motion to dismiss the complaint as to the 

insurance company on February 9, 2012, and the case proceeded between appellant and 

appellee. 
No. 14AP-146 2 

{¶ 3} On March 12, 2012, appellee filed a motion to compel appellant to comply 

with discovery requests, alleging appellant had failed to respond to appellee's 

interrogatories and request for production of documents. The trial court granted 

appellee's motion to compel on April 3, 2012 and directed appellant to fully respond to 

appellee's discovery requests within seven days. Even after the trial court's April 3, 2012 

order, appellant failed to respond to appellee's discovery requests. 

{¶ 4} On May 7, 2012, appellee, still having received no response to his discovery 

requests from appellant, filed a motion to dismiss appellant's complaint for want of 

prosecution pursuant to Civ.R. 41(B)(1). Appellant moved for a continuance of a pretrial 

hearing on May 14, 2012 which the trial court granted, but appellant failed to respond to 

the motion to dismiss in any manner. On May 31, 2012, the trial court granted appellee's 

motion to dismiss. Appellant did not appeal the dismissal. 

{¶ 5} On November 1, 2013, more than 17 months after the dismissal of his 

complaint, appellant filed a Civ.R. 60(B)(4) motion for relief from judgment arguing it 

would no longer be equitable for the case to be resolved by dismissal. Appellant argued 

various medical conditions impacted his ability to timely respond to discovery requests. 

After a January 21, 2014 hearing, the trial court denied appellant's Civ.R. 60(B) motion 

for relief from judgment, concluding appellant failed to present good cause for relief. The 

trial court journalized its decision in a January 22, 2014 entry and order. Appellant 

timely appeals. 

II. Assignments of Error 

{¶ 6} Appellant asserts two assignments of error for our review: 

1. The trial court erred when it dismissed the case after 

granting a continuance for appellant's medical conditions. 

2. The trial court erred when it did not recognize that the 

presence of cardiac artery disease could have been the reason 

for the failure to perform. 

III. Standard of Review and Applicable Law 

{¶ 7} To prevail on a Civ.R. 60(B) motion for relief from judgment, the movant 

must satisfy a three-prong test. The movant must demonstrate that: (1) it has a 

meritorious defense or claim to present if relief is granted, (2) it is entitled to relief under 
No. 14AP-146 3 

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, Inc., 47 Ohio 

St.2d 146 (1976), paragraph two of the syllabus. There will be no relief if the movant fails 

to satisfy any one of the prongs of the GTE test. Strack v. Pelton, 70 Ohio St.3d 172, 174 

(1994). 

{¶ 8} An appellate court reviews a trial court's denial of a Civ.R. 60(B) motion for 

an abuse of discretion. Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, ¶ 7; 

Oberkonz v. Gosha, 10th Dist. No. 02AP-237, 2002-Ohio-5572, ¶ 12. An "abuse of 

discretion" connotes more than an error of law or judgment; it implies that the court's 

attitude is unreasonable, arbitrary or unconscionable. State ex rel. Edwards v. Toledo 

City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 107 (1995); Blakemore v. Blakemore, 5 

Ohio St.3d 217, 219 (1983). Further, " '[i]f a Civ.R. 60(B) motion is premised upon issues 

which could have been raised on appeal, a trial court does not abuse its discretion by 

denying such motion.' " Nkurunziza v. Nyamusevya, 10th Dist. No. 11AP-222, 2011-Ohio6133, ¶ 12, quoting Caron v. Manfresca, 10th Dist. No. 98AP-1399 (Sept. 23, 1999). 

IV. First Assignment of Error – Dismissal of Case 

{¶ 9} In his first assignment of error, appellant argues the trial court erred when 

it granted appellee's motion to dismiss. Appellant asserts that because the trial court 

granted his motion for a continuance and scheduled a pretrial hearing for August 30, 

2012, it was error for the trial court to grant appellee's motion to dismiss prior to the date 

of the pretrial hearing. 

{¶ 10} The basis for this assignment of error is that the trial court erred by granting 

appellee's motion to dismiss pursuant to Civ.R. 41(B)(1) and somehow repeated that error 

in its denial of appellant's Civ.R. 60(B) motion. Appellant could have appealed the alleged 

error stemming from the dismissal in a direct appeal of the order granting appellee's 

motion to dismiss. See, e.g., Johnson v. H & M Auto Serv., 10th Dist. No. 07AP-123, 

2007-Ohio-5794, ¶ 7 (noting that, pursuant to Civ.R. 41(B)(3), a dismissal under Civ.R. 

41(B)(1) "operates as an adjudication upon the merits unless the court, in its order for 

dismissal, otherwise specifies," and is thus a final appealable order). Appellant did not, 

however, appeal the trial court's dismissal of his case, and "he may not use a Civ.R. 60(B) 

motion as a substitute for a direct appeal." Boddie v. Prisely, 10th Dist. No. 13AP-247, 
No. 14AP-146 4 

2013-Ohio-4462, ¶ 6, citing Citimortgage, Inc. v. Clardy, 10th Dist. No. 06AP-1011, 

2007-Ohio-2940, ¶ 7. It is well-established that a party may not use a Civ.R. 60(B) 

motion to argue issues it could have raised in an appeal from the trial court's original 

judgment. Id., citing Rose v. Zyniewicz, 10th Dist. No. 10AP-91, 2011-Ohio-3702, ¶ 19; 

Wells Fargo Bank, N.A. v. Smith, 10th Dist. No. 09AP-559, 2009-Ohio-6576, ¶ 11. To the 

extent the trial court denied appellant's Civ.R. 60(B) motion as an attempted substitute 

for a direct appeal, the trial court did not err. Wells Fargo Bank at ¶ 12. Thus, we 

overrule appellant's first assignment of error. 

V. Second Assignment of Error – Denial of Civ.R. 60(B) Motion 

{¶ 11} In his second assignment of error, appellant asserts the trial court erred in 

denying his Civ.R. 60(B) motion. More specifically, appellant argues the trial court erred 

when it failed to conclude appellant's health condition "could have been the reason" 

appellant failed to respond to discovery requests or otherwise actively participate in the 

case. (Appellant's Brief, at 3.) 

{¶ 12} In his appellate brief, appellant asserts his recently diagnosed coronary 

artery disease could have caused depression that resulted in his failure to comply with the 

trial court's order compelling discovery. He asserts he did not learn of his condition until 

well after the case was dismissed, but that he filed his Civ.R. 60(B) motion promptly upon 

discovering his medical condition. According to appellant, it is no longer equitable for the 

trial court to dispose of his case through dismissal because he now has a medical reason 

for his failure to prosecute and he should be entitled to an opportunity to present the 

merits of his case. 

{¶ 13} Failure to satisfy any one prong of the GTE test results in a denial of a Civ.R. 

60(B) motion. Because the trial court limited its analysis to the second prong of the test 

and that prong is dispositive, we will similarly limit our discussion. Appellant's allegations 

are insufficient to demonstrate he is entitled to relief under one of the grounds stated in 

Civ.R. 60(B)(1) through (5) as is required by the second prong of the GTE test. Appellant 

brought his motion for relief from judgment under Civ.R. 60(B)(4), which allows a trial 

court to grant relief from judgment if "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 
No. 14AP-146 5 

application." The Supreme Court of Ohio has explained that "[t]he '* * * it is no longer 

equitable * * *' clause of Civ.R. 60(B)(4) was designed to provide relief to those who have 

been prospectively subjected to circumstances which they had no opportunity to foresee 

or control." Knapp v. Knapp, 24 Ohio St.3d 141 (1986), paragraph one of the syllabus. 

See also Cuyahoga Support Enforcement Agency v. Guthrie, 84 Ohio St.3d 437, 443 

(1999) (stating "Civ.R. 60(B)(4) was not meant to offer a party a means to negate a prior 

finding that the party could have reasonably prevented"). 

{¶ 14} "Relief under Civ.R. 60(B)(4) must be warranted by events occurring 

subsequent to the entry of the judgment in question," and "[e]vents which occurred prior 

to judgment cannot be relied upon as grounds to vacate the judgment pursuant to Civ.R. 

60(B)(4)." Youssefi v. Youssefi, 81 Ohio App.3d 49, 52-53 (9th Dist.1991), citing Old 

Phoenix Natl. Bank v. Sandler, 14 Ohio App.3d 12, 13 (9th Dist.1984). While appellant 

may have received a formal medical diagnosis after the entry of his dismissal, such formal 

diagnosis does not negate the fact that appellant's failure to comply with discovery, no 

matter what the reason, occurred prior to the entry of dismissal of his case. 

{¶ 15} Further, appellant does not support his argument with any specific 

evidence. "[A] party seeking relief from judgment cannot present 'mere general 

allegations.' " Bank of New York Mellon v. Stefanidis, 10th Dist. No. 11AP-157, 2011-Ohio6455, ¶ 12, quoting Society Natl. Bank v. Val Halla Athletic Club & Recreation Ctr., Inc., 

63 Ohio App.3d 413, 418 (9th Dist.1989). Additionally, appellant did not file a transcript 

of the hearing for our review, so we must accept the facts as stated in the trial court's entry 

denying his Civ.R. 60(B) motion. See Scott v. Scott, 10th Dist. No. 03AP-411, 2004-Ohio1405, ¶ 16. As the trial court stated in its entry and order, appellant "offered no real 

excuse" as to his failure to comply with discovery requests, and he "has not presented 

good cause for relief under Civ.R. 60(B)." (Jan. 22, 2014 Entry and Order, at 1.) 

Appellant does not point to anything in the record demonstrating that the trial court's 

conclusion is an abuse of discretion. 

{¶ 16} Accordingly, we conclude the trial court did not abuse its discretion in 

denying appellant's Civ.R. 60(B)(4) motion for relief from judgment. We overrule 

appellant's second assignment of error. 
No. 14AP-146 6 

VI. Disposition 

{¶ 17} Based on the foregoing reasons, the trial court did not abuse its discretion in 

denying appellant's Civ.R. 60(B) motion for relief from judgment. Having overruled 

appellant's two assignments of error, we affirm the judgment of the Franklin County 

Municipal Court. 

Judgment affirmed. 

SADLER, P.J., and KLATT, J., concur.