[Cite as Newell v. Gaul, 2012-Ohio-2395.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

Nos. 97737 and 97738 

TIMOTHY NEWELL

PLAINTIFF-APPELLANT 

vs. 

JUDGE DANIEL GAUL, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-759860 

BEFORE: Sweeney, J., Blackmon, A.J., and Jones, J. 

RELEASED AND JOURNALIZED: May 31, 2012 
FOR APPELLANT

Timothy Newell, Pro Se 

No. 153-518 

Grafton Correctional Institution 

2500 South Avon Belden Road 

Grafton, Ohio 44044 

ATTORNEYS FOR APPELLEE

William D. Mason, Esq. 

Cuyahoga County Prosecutor 

By: Charles E. Hannan, Jr., Esq. 

Eighth Floor, Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
JAMES J. SWEENEY, J.: 

{¶1} Plaintiff-appellant Timothy Newell (“Newell”) appeals the court’s denial of 

his summary judgment motion and the dismissal of his complaint for declaratory relief 

and an injunction. After reviewing the facts of the case and pertinent law, we affirm. 

{¶2} In December 1978, Newell was sentenced to prison for various sex 

offenses. Since that time, Newell has filed a litany of appeals and habeus corpus actions 

stemming from these crimes. See, e.g., State v. Newell, 8th Dist. Nos. 90738 and 90739, 

2008-Ohio-3687. On direct appeal, Newell’s kidnapping convictions were reversed and 

his remaining convictions were affirmed. State v. Newell, 8th Dist. Nos. 40334 and 

40335 (Feb. 14, 1980). Subsequently, Newell’s prison sentence was reduced to a 

maximum of 470 years. 

{¶3} On July 18, 2011, Newell filed a complaint for declaratory judgment, 

preliminary injunction, and permanent injunction against Cuyahoga County Common 

Pleas Judge Daniel Gaul and Clerk of Court Gerald E. Fuerst. Newell alleges that 

continued execution of his prison sentence is unlawful, because he was delievered to 

prison on December 28, 1978, which is one day before the court filed the judgment entry 

of conviction and sentence in his cases. Newell also filed a motion for summary 

judgment. 

{¶4} On December 6, 2011, the court denied Newell’s summary judgment 

motion and dismissed his complaint for failure to state a claim for relief under Civ.R. 

12(B)(6). Newell appeals and raises three assignments of error for our review. 
{¶5} I. “The trial court erred to the prejudice of appellant by granting 

defendant’s motion to dismiss where the trial court considered matters outside of the 

pleadings.” 

{¶6} II. “The trial court erred to the prejudice of appellant by overruling 

appellant’s motion for summary judgment under the doctrine of res judicata.” 

{¶7} III. “The trial court’s denial of appellant’s complaint is void or voidable 

because the judge rendering the judgment had no jurisdiction over the case at the time 

judgment was rendered, whereas, no journal entry tranferring the case to another judge 

had been entered on the journal by the clerk of the court.” 

{¶8} We first address Newell’s second assignment of error. 

{¶9} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison 

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The Ohio Supreme Court set forth 

the test for determining whether summary judgment is appropriate in Zivich v. Mentor 

Soccer Club, 82 Ohio St.3d 367, 369–370, 696 N.E.2d 201 (1998), as follows: 

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is 

no genuine issue of material fact, (2) the moving party is entitled to 

judgment as a matter of law, and (3) reasonable minds can come to but one 

conclusion and that conclusion is adverse to the nonmoving party, said party 

being entitled to have the evidence construed most strongly in his favor.

Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 

1196, paragraph three of the syllabus. The party moving for summary 

judgment bears the burden of showing that there is no genuine issue of 
material fact and that it is entitled to judgment as a matter of law. Dresher 

v. Burt (1996), 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264, 273–274. 

{¶10} Additionally, in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), 

paragraph nine of the syllabus, the Ohio Supreme Court explained the doctrine of res 

judicata: 

Under the doctrine of res judicata, a final judgment of conviction bars a 

convicted defendant who was represented by counsel from raising and 

litigating in any proeeding except an appeal from that judgment, any 

defense or any claimed lack of due process that was raised or could have 

been raised by the defendant at trial, which resulted in that judgment of 

conviction, or on appeal from that judgment. 

{¶11} In the instant case, Newell filed a direct appeal and failed to raise this 

alleged sentencing issue. Under res judicata, we are prohibited from entertaining this 

argument in the case at hand. Therefore, the court properly denied Newell’s summary 

jugment motion and his second assignment of error is overruled. 

{¶12} We now turn to Newell’s first and third assignments of error. We review 

a court’s granting a motion to dismiss pursuant to Civ.R. 12(B)(6) de novo. Tisdale v. 

Javitch, Block & Rathbone, 8th Dist. No. 83119, 2003-Ohio-6883. When ruling on a 

motion to dismiss for failure to state a claim, the court must assume that all factual 

allegations in the complaint are true, and it must appear beyond a reasonable doubt that 

the plaintiff can prove no set of facts warranting recovery. Tulloh v. Goodyear Atomic 

Corp., 62 Ohio St.3d 541, 584 N.E.2d 729 (1992). 

{¶13} The instant case is analagous to Moore v. Mason, 8th Dist. No. 84821, 

2004-Ohio-1188, in which a criminal defendant sought a declaratory judgment that his 
prison sentence was void and unenforceable because the journalization of the court’s 

sentencing entry was procedurally deficient. In Moore, this court affirmed the trial 

court’s dismissal of the complaint for failure to state a claim under Civ.R. 12(B)(6), 

because declaratory relief was not the proper vehicle for this argument. Id. at ¶ 16. 

A declaratory judgment action * * * cannot be used as a substitute for an 

appeal or as a collateral attack upon a conviction. Declaratory relief “does 

not provide a means whereby previous judgments by state or federal courts 

may be reexamined, nor is it a substitute for appeal or post conviction 

remedies.” Shannon v. Sequeechi (C.A.10, 1966), 365 F.2d 827, 829. A 

declaratory judgment action is simply not part of the criminal appellate 

process. State v. Brooks (1999), 133 Ohio App.3d 521, 525, 728 N.E.2d 

1119. 

Id. at ¶ 14. 

{¶14} Accordingly, the court did not err by dismissing Newell’s complaint for 

failure to state a claim and his first and third assignments of error are overruled. 

{¶15} Judgment affirmed. 

It is ordered that appellees recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

JAMES J. SWEENEY, JUDGE 

PATRICIA ANN BLACKMON, A.J., and 

LARRY A. JONES, SR., J., CONCUR