[Cite as McClintock v. Glick, 2012-Ohio-4091.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF WAYNE ) 

TIM MCCLINTOCK 

 Appellee 

 v. 

ELDON GLICK, et al. 

 Appellant 

C.A. No. 11CA0055 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF WAYNE, OHIO 

CASE No. 03-CV-0521 

DECISION AND JOURNAL ENTRY

Dated: September 10, 2012 

 

CARR, Judge. 

{¶1} Appellant Simon Glick appeals the judgment of the Wayne County Court of 

Common Pleas that denied his motion to set aside a November 24, 2003 judgment. This Court 

affirms. 

I. 

{¶2} This case arises out of a family’s construction of a building without the proper 

permits. In January 2003, the Wayne County Building Department issued Adjudication # 4-

2003, ordering compliance with the applicable sections of the Ohio Building Code. The Board 

of Building Appeals affirmed the order. After the family failed to comply with the order, Tim 

McClintock, in his capacity as a county building official, filed a complaint for a permanent 

injunction to enjoin the use of the building for any purpose without a declaration by the Building 

Department that the building was in compliance with code. On November 24, 2003, the trial 

court issued a permanent injunction to that effect. 
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{¶3} Since that time, the family has continuously challenged the efficacy of the 

permanent injunction. The State, on behalf of the building official, has filed various contempt 

motions. Family members, in particular Simon and his father Eldon, have filed appeals, motions 

to vacate, objections, and “judicial notices of void judgments,” and other documents in an effort 

to challenge the underlying permanent injunction. This Court issued a journal entry dismissing 

the family’s immediate appeal from the judgment granting the permanent injunction because the 

appellants failed to file a brief. 

{¶4} On January 18, 2005, Simon Glick filed a motion to vacate the November 24, 

2003 permanent injunction. The trial court denied the motion. This Court affirmed the denial 

after concluding that Simon had improperly attempted to use the motion to vacate as a substitute 

for an appeal. McClintock v. Glick, 9th Dist. No. 05CA0009, 2005-Ohio-5187, ¶ 8, 10. 

Moreover, we concluded that the family’s argument that the judgment was void for lack of 

subject matter jurisdiction was merely a ruse because their substantive argument merely 

challenged the Building Department’s and Board of Building Appeals’ findings that the family 

was operating a commercial building which required a construction permit. Id. at ¶ 9. 

{¶5} On March 23, 2011, Simon filed a motion to set aside the November 24, 2003 

permanent injunction on the basis of an abuse of due process and constitutional error based on 

the bias and prejudice of the judge who issued the injunction. That judge subsequently granted 

the family’s motion to recuse and the case was transferred to the docket of another judge who 

presided over the case since June 14, 2006. On October 25, 2011, the trial court denied Simon’s 

motion to set aside the November 24, 2003 judgment for the reasons that the family had 

previously appealed that judgment, attempted to vacate it, and ignored it over the course of 

nearly eight years. Simon appealed, raising three assignments of error for review. 
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II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY RULING AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE IN SIMON GLICK’S AFFIDAVIT 

ATTACHED TO HIS MOTION TO SET ASIDE JUDGMENT. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY DENYING SIMON GLICK’S MOTION TO 

SET ASIDE THE NOVEMBER 24, 2003, JUDGMENT, BY ACTING IN A 

MANNER INCONSISTENT WITH DUE PROCESS, AND DEMONSTRATED 

CONSTITUTIONAL ERROR, IN VIOLATION OF ARTICLE I, SECTION 10, 

OF THE OHIO CONSTITUTION, OHIO REVISED CODE 2921.45, AND 

AMENDMENT V, VI, & VII, OF THE UNITED STATES CONSTITUTION. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN ITS ORDER BY SAYING, “THE 

DEFENDANTS HAVE APPEALED THAT (NOVEMBER 24, 2003) 

JUDGMENT, ATTEMPTED TO VACATE IT AND IGNORED IT DURING 

THE PAST NEARLY EIGHT (8) YEARS.” WHICH IS PREJUDICIAL AND 

CLEARLY CONTRARY TO THE RECORDS, COURT FINDINGS, AND 

FACTS IN THIS CASE. 

{¶6} Simon argues that the trial court erred by denying his motion to set aside the 

November 24, 2003 permanent injunction, because (1) the trial court’s finding that the building 

was not in compliance with code provisions was against the manifest weight of the evidence; (2) 

the injunction is void for lack of subject matter jurisdiction because the trial judge failed to 

follow the law and acted in a manner inconsistent with due process; and (3) the trial court erred 

in finding that the family had already appealed the judgment, attempted to vacate it, and 

disregarded the injunction for almost eight years. This Court disagrees. 

{¶7} A motion to set aside a final order is governed by Civ.R. 60(B). The decision to 

grant or deny a motion for relief from judgment pursuant to Civ.R. 60(B) lies in the sound 

discretion of the trial court and will not be disturbed absent an abuse of the discretion. Strack v. 

Pelton, 70 Ohio St.3d 172, 174 (1994). An abuse of discretion is more than an error of 
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judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its 

ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of 

discretion standard, this Court may not substitute its judgment for that of the trial court. Pons v. 

Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). 

{¶8} Civ.R. 60(B) states, in relevant part, 

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. The motion shall be 

made within a reasonable time, and for reasons (1), (2) and (3) not more than one 

year after the judgment, order or proceeding was entered or taken. 

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

must demonstrate that 

the party has a meritorious defense or claim to present if relief 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. 

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph 

two of the syllabus. 

{¶10} “The requirements of Civ.R. 60(B) are stated in the conjunctive; if one of the 

requirements [is] not met, relief from judgment cannot be granted.” Wolotsky v. Portage Path 

Community Mental Health Ctr., 9th Dist. No. 16827, 1995 WL 217032 (Apr. 12, 1995), citing 

Strack, 70 Ohio St.3d at 174. 
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{¶11} As an initial matter, Simon waited seven-and-a-half years to file this motion to set 

aside the judgment granting the permanent injunction, and then after having filed multiple 

appeals, a prior motion to vacate, and numerous challenges to the judgment in the trial court. 

The trial court noted the great length of time before Simon filed this most recent motion to set 

aside, implicitly finding that the motion was not filed within a reasonable time. This Court 

agrees. Simon has not argued how a delay of seven-and-a-half years in raising issues of which 

he was aware from the time of the issuance of the November 24, 2003 injunction was reasonable. 

{¶12} Moreover, Simon did not identify any of the grounds enumerated in Civ.R. 60(B) 

as a basis for his motion to set aside. Instead, he attempted to substantively challenge the 

granting of the permanent injunction, a matter appropriate for a direct appeal, rather than a 

motion to set aside. It is well settled that a party may not use a Civ.R. 60(B) motion, whether so 

identified as such or not, as a substitute for a direct appeal. McClintock, 2005-Ohio-5187, at ¶ 8, 

citing Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128, 131 (1986). 

{¶13} In addition, Simon argues that the trial court made erroneous factual findings in 

its order denying his motion to set aside, warranting reversal. Because Simon has in fact 

previously filed an appeal from the November 24, 2003 permanent injunction, previously moved 

to vacate that order, and raised multiple challenges in the trial court including attempts simply to 

declare various court orders void, his argument in this regard is not well taken. 

{¶14} Finally, we note that Simon argues that the permanent injunction was void ab 

initio for lack of subject matter jurisdiction. “Because subject-matter jurisdiction goes to the 

power of the court to adjudicate the merits of a case, it can never be waived and may be 

challenged at any time. It is a condition precedent to the court’s ability to hear the case. If a 

court acts without jurisdiction, then any proclamation by that court is void.” (Internal citations 
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and quotations omitted.) DaimlerChrysler Fin. Servs. N. Am. LLC v. Hursell Unlimited, Inc., 9th 

Dist. No. 24815, 2011-Ohio-571, ¶ 20, quoting Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio1980, ¶ 11. 

{¶15} It is well established that “[s]ubject-matter jurisdiction of a court connotes the 

power to hear and decide a case upon its merits. Subject-matter jurisdiction defines the 

competency of a court to render a valid judgment in a particular action. In the civil context, the 

standard applied is whether an allegation is raised on any cause of action cognizable by the court. 

Further, subject-matter jurisdiction encompasses the court’s authority to determine a specific 

case within that class of cases that is within its subject matter jurisdiction.” (Internal citations 

omitted.) In re Darling, 9th Dist. No. 03CA0023, 2003-Ohio-7184, ¶ 14. Simon has not cited 

any authority for the proposition that the court of common pleas lacks jurisdiction to issue 

injunctive relief. To the extent that Simon argues that the November 24, 2003 permanent 

injunction is void for lack of subject matter jurisdiction because the trial court failed to follow 

the law or accord him due process, his argument is misplaced. 

{¶16} Based on the above analyses, Simon’s three assignments of error are overruled. 

III. 

{¶17} All assignments of error are overruled. The judgment of the Wayne County Court 

of Common Pleas is affirmed. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 
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 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 DONNA J. CARR 

 FOR THE COURT 

WHITMORE, P. J. 

BELFANCE, J. 

CONCUR.

APPEARANCES:

SIMON GLICK, pro se, Appellant. 

DANIEL R. LUTZ, Prosecuting Attorney, for Appellee.