[Cite as Upkins v. Brosh, 2018-Ohio-2971.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MIAMI COUNTY 

LAMONE UPKINS 

Plaintiff-Appellant 

v. 

LENEE BROSH, PROSECUTOR 

Defendant-Appellee 

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Appellate Case No. 2018-CA-2 

Trial Court Case No. 17-420 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 27th day of July, 2018. 

. . . . . . . . . . . 

LAMONE UPKINS, Inmate No. 723-308, London Correctional Institution, P.O. Box 69, 

London, Ohio 43140 

 Plaintiff-Appellant, Pro Se 

 

NICHOLAS E. SUBASHI, Atty. Reg. No. 0033953 and TABITHA JUSTICE, Atty. Reg. No. 

0075440, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440 

 Attorneys for Defendant-Appellee Lenee Brosh 

MELANIE J. WILLIMASON, Atty. Reg. No. 0079528 and DANIEL A. SABOL, Atty. Reg. 

No. 0096720, 7775 Walton Parkway, Suite 200, New Albany, Ohio 43054 

 Attorney for Defendant-Appellee J.J. Bubeck 

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DONOVAN, J. 
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{¶ 1} This matter is before the Court on the February 7, 2018 pro se Notice of 

Appeal of Lamone Upkins. Upkins appeals from the trial court’s January 12, 2018 denial 

of his pro se Civ.R. 60(B) motion for relief from judgment, issued after the trial court 

granted the motion to dismiss of Miami County Prosecutor Lenee Brosh and Miami 

County Deputy Sheriff J.J. Bubeck (“Defendants”). We hereby affirm the judgment of the 

trial court. 

{¶ 2} On October 16, 2017, Upkins filed a pro se “Complaint 42. U.S.C. § 1983” 

against Defendants. The complaint provided, “This is a claim of malicious prosecution.” 

It further provided that, on January 22, 2016, Bubeck stopped Upkins as he was walking 

at the corner of Hetzler Road and County Road 25A in Piqua, questioned him, placed him 

in handcuffs, and arrested him for an active Montgomery County warrant. The complaint 

alleges that Bubeck then proceeded to Upkins’s vehicle, which he searched without 

Upkins’s permission. According to the complaint, after “illegally obtaining what Deputy 

Bubeck[ ] believed was drug paraphernalia,” Bubeck “proceeded to try and get the Plaintiff 

to take a field sobriety test, and a breath test,” which Upkins refused. Upkins alleged 

that he was charged with “OVI-Drugs and Alcohol and DUS-Driving Under Suspension.” 

Upkins stated that he was “incarcerated within the Miami County Jail from January 22, 

2016, up to February 4, 2016, [sic] the date upon which the Plaintiff had to pay a high 

bond for such misdemeanor charges after Montgomery County dropped the warrant in 

Dayton, Ohio, from a 2009 traffic violation.” Upkins asserted that Bubeck “knew his 

actions would ignite the Miami County Prosecuting Office to begin its malicious 

prosecution of a case that had neither probable cause [n]or justifiable standings in 
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criminal law.” Upkins further alleged that Brosh “acted with malice while instituting or 

continuing the prosecution” and that Brosh attempted “to achieve a guilty plea by way of 

a dishonest purpose.” Upkins sought $582.65 “for bail money lost in malicious 

prosecution,” as well as $10,000.00 in punitive damages and $10,000.00 in compensatory 

damages “for stress and duress.” 

{¶ 3} On October 19, 2017, Defendants filed their “Motion for Dismissal.” In its 

entirety, the motion provides as follows: 

Now comes the above named defendants by and through, Miami 

County Prosecuting Attorney, Anthony E. Kendell, and for the reasons set 

forth below, respectfully requests that the Plaintiff’s Complaint be 

dismissed. 

It is the State’s position that this Honorable Court lacks jurisdiction in 

order to proceed on the Plaintiff’s Complaint as a matter of law. As a result, 

the State respectfully requests that the Plaintiff’s Complaint be summarily 

dismissed on those grounds. 

{¶ 4} The certificate of service on the motion provides that it was sent via regular 

mail to Upkins at London Correctional Institution, to Brosh at the Miami County Municipal 

Court Prosecutor’s Office, and to Sheriff David Duchak and Deputy Bubeck at the Miami 

County Sheriff’s Office. 

{¶ 5} On October 24, 2017, the court granted the motion to dismiss without 

analysis; the entirety of it of its decision provided: “Upon Motion of the State, and for good 

cause shown, the Motion to Dismiss filed by the Miami County Prosecutor in this matter, 

is hereby granted.” We note that the signature appearing above Judge Christopher 
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Gee’s signature line is difficult to read. 

{¶ 6} On November 13, 2017, Upkins filed his pro se motion for relief from 

judgment, arguing that the “State filed a motion to dismiss with the Court without serving 

a copy on the Plaintiff, and therefore, obstructed the Plaintiff from being able to oppose 

the motion.” He argued that the trial court failed to provide a rationale for the dismissal of 

his complaint. According to Upkins, “the contents of the State’s motion to dismiss is [sic] 

still unknown to the plaintiff.” He asserted that “it is incumbent upon this Court to grant 

relief from judgment pursuant to Civil Rule 60(B)(1)(3) & (5).” Upkins further asserted 

that he “may had [sic] mistakenly used the wrong statute in presenting his claim to the 

Court by asserting 42 U.S.C. 1983, but such oversight could have been easily corrected 

pursuant to Civil Rule 15(A), whereas [the] body of the complaint itself, did in fact state a 

claim upon which relief could be granted if proven.” He argued that “in considering 

60(B)(3),” Defendants’ failure to serve him with the motion to dismiss “was an act of 

misconduct, and the reasons stated all through this motion covers 60(B)(5) and justifies 

relief from judgment.” The certificate of service on the motion provides that “a copy of 

the foregoing motion for Relief from Judgment, Civil Rule 60(B) was sent to Lenee Brosh, 

the Miami County Prosecutor’s Office [on] November 4, 2017 at 501 W. Main St., Safety 

Building, Troy, Ohio 45373-2363.” 

{¶ 7} Upkins attached his affidavit to his motion for relief from judgment. The 

affidavit stated that he was not served with a copy of the motion to dismiss and that his 

complaint was dismissed without any rationale. He further averred that he received “the 

dismissal entry on October 26, 2017 from Anthony E. Kendell Miami County Prosecuting 

Attorney as the sender on the envelope from the mail room here at the London 
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Correctional Inst.” Finally, Upkins stated that he “is now before Judge Gee, requesting 

Motion for Leave to file an Amended Complaint, and motion for Relief from judgment due 

to the failure to adhere to the civil rules.” 

{¶ 8} On the same day, Upkins filed a “Motion to Amend Complaint,” which 

provided that Defendants “have not filed an affirmative defense in this case, and based 

on these facts and the supporting civil rules the motion for leave should be freely given.” 

Upkins also filed an affidavit which provided, “[t]his will verify that a copy of the Plaintiff’s 

Motion for Release from Judgment, Motion to Amend Complaint, & Affidavit of the Plaintiff 

was mailed to the clerk of courts at Miami County Common Pleas Court by U.S. Mail, 

County Courthouse Troy, Ohio, to be filed with the Common Pleas Court.” 

{¶ 9} On January 12, 2018, the trial court issued its “Decision/Judgment Entry 

Denying Motion for Relief from Judgment.” The court noted that Defendants “have not 

responded to the motion for relief from judgment, although, somewhat ironically, it 

appears that [Anthony E. Kendell, the Miami County prosecutor who filed the motion to 

dismiss on behalf of Defendants], may not have been served with a copy of the motion 

for relief.” The trial court noted that the dismissal entry was signed by “a visiting judge,” 

who “did not explain the basis of the dismissal beyond ‘good cause shown.’ ” The court 

noted that Upkins did not appeal from the dismissal of his complaint. The court found 

that the “memorandum in support of the motion for relief from judgment is confusing from 

the standpoint of ascertaining the basis for relief under Civil Rule 60(B). This could, in 

part be attributed to Upkins[’] lack of familiarity with the rule and his decision to proceed 

pro se.” The court further noted that pro se litigants are “held to the same procedural 

standards as other litigants that have retained counsel.” 
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{¶ 10} The court further found as follows: 

The memorandum supporting the motion for relief makes a general 

assertion about entitlement to relief “pursuant to Civil Rule 60(B)(1), (3) & 

(5)”, but does not set forth specific operative facts to support entitlement to 

relief under those three grounds. Upkins asserts in his memorandum that 

he “may have mistakenly used the wrong statute in presenting his claim to 

the court by asserting 42 U.S.C. 1983.” Upkins also claims (correctly) that 

the court should have given him time to respond to the motion for dismissal. 

Had he been given that time, however, Upkins claims that he would have 

filed an amended complaint. The proposed amended complaint, which is 

attached to this decision, removes any reference to a claim under 42 U.S.C. 

§ 1983, but in both the original and proposed amended complaint, Upkins[’s] 

sole claim is for “malicious prosecution”. However, the removal of a 

reference to 42 U.S.C. § 1983 does not change the sole claim being made 

for malicious prosecution and does not demonstrate a mistake that would 

justify granting relief under Civil Rule 60(B). 

 The court finds that Upkins has failed to demonstrate he is entitled 

to relief under any of the grounds alleged under Civil Rule 60(B). He has 

not demonstrated “mistake, inadvertence, surprise or excusable neglect” 

under 60(B)(1). There is also no evidence of fraud, misrepresentation or 

other misconduct of an adverse party that would justify relief under 60(B)(3). 

Upkins also points to the catch-all provisions of 60(B)(5), but he does not 

make any separate argument to demonstrate why he is entitled to relief 
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under that section. 

(Footnotes omitted.) 

{¶ 11} We note that the amended complaint attached to the motion to amend does 

not bear a time-stamp. In separate footnotes the court noted that the “certificate of service 

signed by Upkins shows that it was sent to one of the defendants, Lenee Brosh, who 

works as a prosecutor in Miami County Municipal Court and who is not employed by the 

Miami County Prosecuting Attorney’s office,” and that “Local Rule 3.031 gave Upkins 14 

days to respond to the motion for dismissal. 

{¶ 12} Upkins asserts two assignments of error herein which we will consider 

together. They are as follows: 

THE TRIAL COURT ABUSED ITS DISCRETION BY NOT 

GRANTING APPELLANT’S 60(b)(5) MOTION WHEN THE TRIAL COURT 

FAILED TO CORRECT THE PLAIN ERRORS OF A SUBSTITUTE JUDGE 

WHO’S [sic] JUDGMENT WAS UNREASONABLE, ARBITRARY OR 

UNCONSCIONABLE” 

 THE TRIAL COURT ABUSED ITS DISCRETIOIN IN IT’S [sic] 

JUDGMENT TO THE PREJUDICE OF THE APPELLANT BY DENYING 

HIS CIVIL RULE 60(B)(5) MOTION FOR RELIEF FROM JUDGMENT 

 

1 Miami County Local Rule 3.03 governs in part the submission of motions and provides: 

“All motions shall be accompanied by a brief or memorandum stating the grounds thereof 

and citing the authorities relied upon. The opposing counsel or parties may file answer 

briefs or memoranda by the fourteenth day after the day on which the motion was filed. 

On the twenty-first calendar day after the original motion was filed, the motion shall be 

submitted to the Judge to whom the case is assigned. This rule shall apply to all motions 

except as otherwise provided herein. The clerk is ordered not to accept for filing motions 

not in conformance with this rule. * * *.” (Emphasis added.) 
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WHERE APPELLANT’S AFFIDAVIT WAS NEVER CONTESTED BY 

DEFENDANT’S [sic] WHERE SERVICE OF THEIR MOTION TO DISMISS 

WAS NOT MADE ON APPELLANT IN ACCORDANCE WITH OHIO CIVIL 

RULE 5(A). 

{¶ 13} In the “Statement of the Case” portion of his brief, Upkins asserts that his 

case is “a case involving malicious prosecution” against Brosh and Bubeck, who “acted 

with vehemence and intent of purpose to cause [him] embarrassment, irreparable harm, 

and financial loss.” Upkins asserts that his complaint “should have never been 

dismissed by the trial court pursuant to civil rules and local rules without allowing [him] an 

opportunity to respond” to the motion to dismiss. 

{¶ 14} Upkins asserts that the “trial court dismissing the civil action five days after 

the defendants filed their motion without allowing Appellant an opportunity to oppose their 

motion was prejudicial and an abuse of discretion.” He argues that, “under Ohio’s liberal 

pleading rules, all that is required of a plaintiff bringing suit is (1) a short and plain 

statement of the claims showing that the party is entitled to relief, and (2) a demand for 

judgment for relief to which the party claims to be entitled.” 

{¶ 15} Upkins argues that he: 

* * * filed a “Motion for Relief from Judgment” and a “Motion to Amend 

Complaint”, accompanied by an “Affidavit” swearing he never received 

defendants[’] motion to dismiss complaint. The defendants never 

responded to either of Appellant’s motions, and never contested the 

Appellant’s affidavit. The Appellant ask[s] this Appellate Court to note that 

all legal mail coming into the London Correctional Institution, from court or 
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attorneys are recorded and must be signed for by the recipient, and can be 

verified by the Institution Mail Officer. 

 The trial court promptly denied Appellant’s motion for Relief from 

Judgment. First it is unfair and prejudicial for the Court to acknowledge the 

defendant[s’] not contesting the Appellant’s affidavit, and secondly, not 

responding to Appellant’s motion for Relief from Judgment. Thirdly, it is 

unfair and prejudicial against the Appellant for the trial court to recognized 

[sic] and acknowledge a substitute judge dismissing a civil action with a total 

disregard for the local rules 3.03, and civil rules 7(B)(2), 8(A), and 41(B)(1). 

Further, the substitute judge dismissed the complaint by signing the 

dismissal as if the sitting judge, Christopher Gee, had actually signed it, and 

the substitute judge[’s] name has not been mentioned and still is unknown 

to the Appellant. * * * And even assuming that the defendant’s [sic] had 

sent Appellant a copy of their motion to dismiss by regular mail, then it still 

would have had [sic] prejudiced the Appellant because it takes three or four 

days to receive legal mail at this institution. Therefore, at best, the 

Appellant would have only had the defendant[s’] motion to dismiss one day 

or two at best, and could have not responded in time. 

{¶ 16} Upkins argues that “the trial court abused its discretion by failing to correct 

an unfair judgment that was casted in it’s [sic] name despite the trial court’s 

acknowledgement of its unfairness and unjust decisions, which ultimately has prejudiced 

this appellant.” 

{¶ 17} Under his first assignment of error, Upkins asserts that his appeal “rests on 
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the trial court[’s] abuse of discretion when the sitting judge failed to correct a visiting or 

substitute judge[’s] plain errors in dismissing Appellant’s civil actions which is contrary to 

Miami County Local Rules 3.03 and Ohio Civil Rules 7(B),8(A), and 41(B)(1).” He argues 

that Defendants sought dismissal based upon a lack of subject matter jurisdiction 

“because Appellant used or cited the statute 42 U.S.C. 1983,” yet Defendants failed to 

cite any authorities in support of their position as required by local rule. Upkins asserts 

that the “visiting or substitute judge (who’s [sic] name is never mention[ed] or known by 

Appellant) but who signed the dismissal where sitting judge Christopher Gee[’s] signature 

should have been, dismissed the civil action,” while Upkins had 14 days to respond. 

Upkins argues that many “civil complaints [have] been filed in Ohio State court using the 

civil right statute 42 U.S.C. 1983 as the bas[i]s of their complaints, and as such, using the 

statute itself is not a justifiable reason to dismiss a civil action for lack of jurisdiction in a 

state court.” 

{¶ 18} Upkins asserts that the “trial court or Clerk of Courts did not serve the 

October 24, dismissal on the Appellant, but rather, it was sent by the [Defendants’] 

attorney, Anthony E. Kendall.” He argues that the “trial court denied Appellant’s motion 

for relief from judgment after first acknowledging that the visiting or substitute judge had 

committed plain error in dismissing the civil action.” Upkins asserts that he “has a 

meritorious claim for malicious prosecution, and his complaint and Amended Complaint 

both met the malicious prosecution criteria.” 

{¶ 19} In his second assignment of error, Upkins asserts that while his original 

motion sought relief pursuant to Civ.R. 60(B)(1), (3), and (5), “after further research of the 

rule itself, the appellant[’s] only relief rest[s] within [C]ivil [R]ule 60(B)(5).” Upkins repeats 
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several of the arguments, set forth above, in his second assignment of error. He further 

asserts that pursuant to Civ.R. 60(B), he “stated a meritorious claim for malicious 

prosecution, wherein the complaint, appellant stated [(1)] malice in initiating or continuing 

the prosecution, (2) the defendants lacked probable cause, and (3) the termination of the 

prosecution in favor of the appellant.” Upkins asserts that he “has met the second prong 

that entitle[s] him to relief under the ground of civil rule 60(B)(5), because appellant never 

received service from the defendant of their motion to dismiss,” and that his affidavit, 

which Defendants did not contest, “swearing to the fact is sufficient on its face to establish 

a civil rule 60(B)(5) relief from judgment.” Finally, Upkins asserts that he filed his motion 

within a reasonable time. 

{¶ 20} In his brief, Deputy Bubeck asserts that he was not served with Upkins’s 

Civ.R. 60(B) motion, and that the address in Upkins’s certificate of service for Brosh is 

incorrect, since she is employed at the Miami County Municipal Court and not the Miami 

County Prosecutor’s Office. He asserts that Upkins “failed to both establish that he has 

a meritorious defense or claim to present if relief is granted and he failed to establish that 

he is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5).” 

Bubeck argues that “the trial court did not find that its decision to dismiss Plaintiff’s 

Complaint constituted plain error, but simply stated that ‘the court should have given him 

time to respond to the motion for dismissal’ under the Local Rules.” Bubeck asserts that 

Upkins “could have simply appealed the trial court’s original decision,” and that his instant 

appeal fails “because a Rule 60(B) Motion for Relief from Judgment cannot be used in 

place of an appeal.” 

{¶ 21} Prosecutor Brosh also argues that Upkins “clearly had the ability and 
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wherewithal to file an appeal,” since he filed his motion for relief from judgment 20 days 

after the dismissal entry was issued. She asserts that, in Ohio, “a Civil Rule 60(B) motion 

may not be used as a substitute for direct appeal.” Finally, Brosh asserts that Upkins 

“has failed to plead operative facts in his complaint that would overcome [her] right to 

prosecutorial immunity.” 

{¶ 22} Upkins filed a reply brief, attached to which are copies of the legal mail log 

from the London Correctional Institution which Upkins asserts reflect mail that Upkins 

received from October 16, 2017 to November 25, 2017, as well as a copy of an envelope 

addressed to Upkins from the Prosecuting Attorney of Miami County, which reflects it was 

received on October 26, 2017. 

{¶ 23} We note that Bubeck filed a motion to strike the attachments to Upkins’s 

reply brief as outside the record, and Upkins filed a response thereto. On May 16, 2018, 

this Court issued a Decision and Entry, noting that Bubeck’s motion to strike and Upkins’s 

response “are TAKEN UNDER ADVISEMENT. This court will review the trial court’s 

record that was filed in this appeal, and will not consider evidence that is not part of that 

record.” Having undertaken such review, we conclude that the attachments to Upkins’s 

reply are not part of the record before us, and we will not consider them. See State v. 

Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus 

(appellate court may not add to the record and decide an appeal based on material that 

was not before the trial court.) 

{¶ 24} As this Court has previously noted: 

“Once an order has been journalized by a trial court as a final 

appealable order, that order cannot be modified or vacated except as 
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provided under Civ.R. 50(B) (motion notwithstanding the verdict), Civ.R. 59 

(motion for new trial), or Civ.R. 60(B) (motion for relief from judgment).” 

Krumheuer v. Flowers & Versagi Reporters, 8th Dist. Cuyahoga No. 72431, 

1997 WL 691169, *2, citing In re Guardianship of Mauer, 108 Ohio App.3d 

354, 357, 670 N.E.2d 1030 (6th Dist. 1995); Pitts v. Dept. of Transp., 67 

Ohio St.2d 378, 380, 423 N.E.2d 1105 (1981); and Civ.R. 54(A). 

* * * 

Civ.R. 60(B) provides: 

 On motion and upon such terms as are just, the court 

may relieve a party or his legal representative from a final 

judgment, order or proceeding for the following reasons: (1) 

mistake, inadvertence, surprise or excusable neglect; (2) 

newly discovered evidence which by due diligence could not 

have been discovered in time to move for a new trial 

under Rule 59(B); (3) fraud (whether heretofore denominated 

intrinsic or extrinsic), misrepresentation or other misconduct 

of an adverse party; (4) the judgment has been satisfied, 

released or discharged, or a prior judgment upon which it is 

based has been reversed or otherwise vacated, or it is no 

longer equitable that the judgment should have prospective 

application; or (5) any other reason justifying relief from the 

judgment. * * * 

To prevail on a Civ.R. 60(B) motion, the movant must demonstrate 
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that : (1) he has a meritorious defense or claim to present if relief is granted; 

(2) he is entitled to relief under one of the grounds stated in Civ.R. 60(B); 

and (3) the motion is made within a reasonable time. GTE Automatic Elec., 

Inc. v. ARC Industries, Inc. 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). 

“A motion for relief from judgment under Civ.R. 60(B) is addressed 

to the sound discretion of the trial court, and that court’s ruling will not be 

disturbed on appeal absent a showing of abuse of discretion.” Griffrey v. 

Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). * * * 

Beyoglides v. Elmore, 2d Dist. Montgomery No. 24905, 2012-Ohio-3979, ¶ 12-16. 

{¶ 25} The term “ ‘abuse of discretion’ [is] defined as an attitude that [is] 

unreasonable, arbitrary, or unconscionable.” Feldmiller v. Feldmiller, 2d Dist. 

Montgomery No. 24989, 2012-Ohio-4621, ¶ 7, citing Huffman v. Hair Surgeon, Inc., 19 

Ohio St.3d 83, 482 N.E.2d 1248 (1985). 

{¶ 26} As this Court finally noted in Beyoglides: 

A Civ.R. 60(B) motion may not be used as a substitute for direct 

appeal. Key v. Mitchell, 81 Ohio St.3d 89, 90–91, 689 N.E.2d 548 (1998); 

Doe v. Trumbull Cty. Child. Serv. Bd., 28 Ohio St.3d 128, 131, 502 N.E.2d 

605 (1986). This court has stated that “[t]he use of Civ. R. 60(B) is generally 

reserved to issues that cannot be raised on appeal.” Burgess v. Safe Auto, 

2d Dist. Montgomery No. 20941, 2005–Ohio–6829, ¶ 32. Therefore, when 

a party merely repeats arguments that concern the merits of the case and 

that could have been raised on appeal, relief under Civ.R. 60(B) is not 

available. Wozniak v. Tonidandel, 121 Ohio App.3d 221, 228, 699 N.E.2d 
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555 (8th Dist.1997). 

 * * * “A Civ.R. 60(B)(5) motion for relief from judgment may not be 

used as a substitute for a direct appeal from the judgment challenged, 

Colley v. Bazell (1980), 64 Ohio St.2d 243, 245, 18 O.O.3d 442, 443-444, 

416 N.E.2d 605, 607, nor may it be used for, or in place of, any of the other 

more specific provisions of Rule 60(B). Caruso-Ciresi, Inc. v. Lohman

(1983), 5 Ohio St.3d 64, 5 OBR 120, 448 N.E.2d 1365.” Miamisburg Motel 

v. Huntington Natl. Bank, 88 Ohio App.3d 117, 129, 623 N.E.2d 163, 172 

(2d Dist. 1993). 

Id. at ¶ 17-18 (holding that “Beyoglides’s arguments in his motion to modify or clarify could 

have been the basis for a direct appeal from the original order construing the will. The 

trial court therefore erred when it granted relief under Civ.R. 60(B).” Id. at ¶ 19.). 

{¶ 27} We agree with Defendants that the propriety of the dismissal of Upkins’s 

complaint should have been raised on direct appeal.2 Accordingly, Upkins’s assigned 

errors are overruled, and the judgment of the trial court denying his motion for relief from 

judgment is affirmed. 

. . . . . . . . . . . . . 

 

2 We note that Civ.R. 58 provides: “When the court signs a judgment, the court shall 

endorse thereon a direction to the clerk to serve upon all parties not in default for failure 

to appear notice of the judgment and its date of entry upon the journal. Within three days 

of entering the judgment upon the journal, the clerk shall serve the parties in the manner 

prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving 

the notice and notation of the service in the appearance docket, the service is complete. 

The failure of the clerk to serve notice does not affect the validity of the judgment or the 

running of the time for appeal except as provided in App.R. 4(A).” App.R. 4(A)(3) 

provides that “[i]n a civil case, if the clerk has not completed service of the order within 

the three-day period prescribed in Civ.R. 58(B), the 30-day periods referenced in App.R. 

4(A)(1) and 4(A)(2) begin to run on the date when the clerk actually completes service.” 
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HALL, J., concurs. 

FROELICH, J., concurring: 

{¶ 28} The error claimed by the Appellant – that he did not have the opportunity to 

respond to the motion to dismiss and/or that there were no grounds to grant the motion – 

are, if true, apparent on the record. The Appellant could have filed (and, as pointed out 

by the majority, still could file) an appeal. Therefore, under the unique facts of this case, 

Civ.R. 60(B)(5) relief was not available to the Appellant, and his post-judgment motion 

was appropriately denied. 

Copies mailed to: 

Lamone Upkins 

Nicholas E. Subashi 

Tabitha Justice 

Melanie J. Williamson 

Daniel A. Sabol 

Hon. Christopher Gee