[Cite as Always Stay Unlimited, L.L.C. v. Stark Cty. Access Mgt. Bd., 2024-Ohio-5060.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
ALWAYS STAY UNLIMITED, LLC, : JUDGES: et al., : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff - Appellees : Hon. Craig R. Baldwin, J. : -vs- : : STARK COUNTY, OHIO ACCESS : Case No. 2023CA00085 MANAGEMENT BOARD, et al., : 2024CA00004 : Defendant - Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2022- CV-01839
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 21, 2024
APPEARANCES:
For Plaintiff-Appellees For Defendant-Appellants
KYLE L. STONE MAJEED G. MAKHLOUF Prosecuting Attorney ELIZABETH WELLS ROTHENBERG Stark County, Ohio Berns, Ockner & Greenberger, LLC 3733 Park East Dr., Suite 200 By: DEBORAH A. DAWSON Beachwood, Ohio 44122 Civil Division Chief LISA A. NEMES TERRY A. MOORE Appellate Division Chief OWEN J. RARRIC JOHN LYSENKO TERRY J. EVANS Assistant Prosecuting Attorney Krugliak, Wilkins, Griffiths & Dougherty 110 Central Plaza South Ste. 510 4775 Munson St., NW Canton, Ohio 44702-1413 Canton, Ohio 44735 Stark County, Case No. 2023CA00085 and 2024CA00004 2
Baldwin, J.
{¶1} The appellants, Stark County Engineer and the Stark County, Ohio Access
Management Board (“the Board”) appeal the July 12, 2023, and January 5, 2024,
judgment entries from the Court of Common Pleas of Stark County, Ohio (“Reviewing
Court”). Appellees are Always Stay Unlimited, LLC, Donald G. Crum, Lake Cable Nursery,
Inc., and Lake Cable Nursery, Ltd.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On March 11, 2022, the appellees submitted an application for Regional
Planning Submission (“site plan”) for the development of Sgt. Clean Car Wash (“the car
wash”).
{¶3} On April 5, 2022, the Stark County Regional Planning Commission
conditionally approved the site plan subject to certain conditions, including that the access
onto Everhard Road must be right-in, right-out only. During the process, the Regional
Planning Commission ultimately approved a right-in/left-in, right-out only access. The
appellees sent a letter as notice to the appellants of their request to appeal the access
decision.
{¶4} On October 4, 2022, the Board convened for a hearing.
{¶5} At the hearing, the Engineer testified that, in his opinion, reasonable access
to the Property includes left-ins, but not left-outs due to the traffic on Everhard Road.
{¶6} Next, the Appellees called a traffic engineer to testify. The traffic engineer
conducted a traffic impact study for the site. The Fulton roadway has roughly fifteen to
twenty percent more traffic than Everhard Road. Therefore, of the two access points, it Stark County, Case No. 2023CA00085 and 2024CA00004 3
would be better to grant full access to Everhard Road and right-in/right-out access to
Fulton Road.
{¶7} The traffic engineer continued his testimony that restricting left-out access
onto Everhard Road would cause traffic to take a right and either go through a residential
street or complete a quick U-turn, creating an unsafe situation.
{¶8} The traffic engineer also testified that the traffic queueing to turn onto
Everhard Road would remain on the Property, limiting the impact to traffic on Everhard
Road. In the traffic engineer’s opinion, allowing a left-out onto Everhard Road is safer
than diverting traffic to a residential neighborhood.
{¶9} Mr. Crum testified that he has had trouble selling the Property and that the
buyer has the right to terminate the purchase agreement if left-out access is not granted.
{¶10} An appraiser testified that not allowing full access onto either Fulton Road
or Everhard Road would have a detrimental impact on the Property’s value. He also
testified that the property’s zoning classification is a B-3, which allows for “virtually
anything” commercially.
{¶11} An urban and neighborhood planner then testified that as a planner, he
would want to design access to keep traffic on roadways that can accommodate the
traffic. He testified that the neighborhood does not have curbs or sidewalks so more
people will be walking in the streets. He continued that the increased traffic flow would be
dangerous for this type of neighborhood.
{¶12} The appellants then called the Engineer to testify. The Engineer testified
that it is his belief that left-in but no left-out access is reasonable based on the conditions.
The Engineer did not elaborate. The appellants did not call any other witnesses. Stark County, Case No. 2023CA00085 and 2024CA00004 4
{¶13} The Board denied the request for a variance, finding that the appellants
failed to establish their right to a variance because the literal enforcement of the
Regulations would not result in unnecessary hardship for the appealing parties. The
Board found that the appellees’ concerns are outweighed by public safety concerns.
{¶14} On November 16, 2022, the appellees filed a notice of administrative appeal
to the common pleas court.
{¶15} On December 16, 2022, Appellee Sgt. Clean requested final approval for
the left-in, right-in, right-out only site plan.
{¶16} On January 9, 2023, the appellees filed their merit brief in the common pleas
court.
{¶17} On March 1, 2023, Appellee Sgt. Clean emailed the Regional Planning
Commission regarding the new site layout. He asked if it should be a new submission or
a modification of the previous submission. The Regional Planning Commission informed
the appellee that this would be considered a significant change to the site plan and would
require a revised submittal before the commission.
{¶18} On March 20, 2023, the Regional Planning Commission sent the appellees’
new site plan to the County Engineer requesting written approval, disapproval, or
recommendations.
{¶19} On March 28, 2023, the County Engineer’s office sent approval of the new
site plan to the Regional Planning Commission.
{¶20} On April 4, 2023, the Regional Planning Commission issued a conditional
approval of the new site plan. Stark County, Case No. 2023CA00085 and 2024CA00004 5
{¶21} On July 7, 2023, the Reviewing Court held an oral argument for the
administrative appeal on the original site plan.
{¶22} On July 12, 2023, the Reviewing Court reversed the decision of the Appeals
Board.
{¶23} The appellant’s filed a timely notice of appeal and raised the following
Assignment of error in case number 2023-CA-00085:
{¶24} “I. THE COMMON PLEAS COURT ERRED AS A MATTER OF LAW AND
EXCEEDED THE SCOPE OF ITS JURISDICTION BY APPLYING A DE NOVO
STANDARD OF REVIEW TO AN ADMINISTRATIVE APPEAL UNDER R.C. CHAPTER
2506.”
{¶25} “II. THE COMMON PLEAS COURT ERRED AS A MATTER OF LAW IN
DETERMINING THAT REGULATIONS PROVIDED FOR AN APPEAL OF ‘THE
ENGINEER’S DECISION REGARDING THE EXCEPTION’ AND FURTHER ERRED IN
ISSUING AN ORDER PURPORTING TO REVERSE AN ILLUSORY IMPLIED DECISION
AFFIRMING THE ENGINEER’S DECISION TO DENY AN EXCEPTION.”
{¶26} “III. THE COMMON PLEAS COURT ERRED AS A MATTER OF LAW IN
ITS INTERPRETATION AND APPLICATION OF THE CRITERIA FOR A VARIANCE IN
THE REGULATIONS, AND ABUSED ITS DISCRETION IN FINDING THE EVIDENCE
SATISFIED THIS STANDARD.”
{¶27} On November 7, 2023, the appellants filed a Civ.R. 60(B) motion requesting
relief from judgment.
{¶28} On November 21, 2023, this Court remanded the case to the trial court for
the limited purpose of ruling on the appellants’ Civ.R. 60(B) motion. Stark County, Case No. 2023CA00085 and 2024CA00004 6
{¶29} On January 5, 2024, the Reviewing Court denied the Civ.R. 60(B) motion.
{¶30} The appellant’s filed a second timely notice of appeal, Case Number 2024-
CA-00004, raising the following assignments of error:
{¶31} IV. “THE COMMON PLEAS COURT ABUSED ITS DISCRETION AND
ERRED AS A MATTER OF LAW WHEN IT FAILED TO FOLLOW THE PRESCRIBED
PROCEDURE FOR RULING ON A CIV.R. 60(B) MOTION AND, INSTEAD SUA
SPONTE RECAST THE MOTION AS A COMMON LAW MOTION TO VACATE A VOID
JUDGMENT, OVERRULED THE MOTION BASED AN (sic) IMPROPER ANALYSIS,
AND DISREGARDED THE ARGUMENTS STARK COUNTY ASSERTED IN SUPPORT
OF RELIEF UPON THE PARTICULAR GROUNDS OF CIV.R. 60(B).”
{¶32} V. “THE COMMON PLEAS COURT ABUSED ITS DISCRETION WHEN IT
DENIED RELIEF FROM JUDGMENT UNDER CIV.R. 60(B)(1), (3), (4), AND (5).”
MOTION TO DISMISS
{¶33} The appellees filed a Motion to Dismiss for lack of standing. The appellees
argue that each of the appellants lacks standing. We disagree.
{¶34} “[T]he proper party to appeal under R.C. Chapter 2506 is ‘the city, the city
official responsible for enforcing the zoning regulations, or other persons aggrieved by
the court’s decision.’ ” Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 2013-
Ohio-5610 (4th Dist.), quoting Sich v. Bd. of Zoning Appeals for the City Middletown, 1984
WL 3386 (12th Dist.). According to R.C. §5552.10, “[t]he board of county commissioners
shall designate the county engineer to administer county access management
regulations[.] Therefore, the county engineer, in the role of administrator of county access
management regulations, is the proper party to an appeal under R.C. Chapter 2506 of a Stark County, Case No. 2023CA00085 and 2024CA00004 7
decision of the Stark County, Ohio Access Management Board. Accordingly, the
appellees’ Motion to Dismiss is denied.
I.
{¶35} In the appellants’ first Assignment of Error, the appellant argues the
Reviewing Court erred as a matter of law when it applied the wrong standard of review.
We disagree.
STANDARD OF REVIEW
{¶36} The appropriate application of a standard of law is a question of law. Copley
Twp. Bd. of Trustees v. Lorenzetti, 2001-Ohio-1662 (9th Dist.), ¶20. “Questions of law are
reviewed de novo.” In re Estate of Quick, 2004-Ohio-4434 (5th Dist.), ¶25. A de novo review
requires an independent review of the common pleas court’s decision without any
deference to its determination. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704
(4th Dist.1993).
ANALYSIS
{¶37} R.C. §2506.04 states:
If an appeal is taken in relation to a final order, adjudication, or
decision covered by division (A) of section 2506.01 of the Revised Code,
the court may find that the order, adjudication, or decision is
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported
by the preponderance of substantial, reliable, and probative evidence on
the whole record. Consistent with its findings, the court may affirm, reverse,
vacate, or modify the order, adjudication, or decision, or remand the cause
to the officer or body appealed from with instructions to enter an order, Stark County, Case No. 2023CA00085 and 2024CA00004 8
adjudication, or decision consistent with the findings or opinion of the court.
The judgment of the court may be appealed by any party on questions of
law as provided in the Rules of Appellate Procedure and, to the extent not
in conflict with those rules, Chapter 2505. of the Revised Code.
{¶38} A court of common pleas is authorized to reverse a final decision of a board
“if, after a review of the complete record, it finds that the board’s decision is
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence.” Willow Grove, Ltd. v.
Olmstead Twp. Bd. of Zoning Appeals, 2022-Ohio-4364, ¶16.
{¶39} The Reviewing Court’s July 12, 2023, Judgment Entry distinguishes
between a pure de novo review and a review of an administrative appeal under Revised
Code Chapter 2506. A review under Revised Code Chapter 2506 resembles a de novo
proceeding. Shelly Materials, Inc. v. City of Streetsboro Planning & Zoning Commission,
2019-Ohio-4499. In such a review, the Reviewing Court “weighs the evidence to
determine whether a preponderance of reliable, probative, and substantial evidence
supports the administrative decision, and if it does, the court may not substitute its
judgment for that of the administrative agency.” Id. “The court of common pleas may not
‘blatantly substitute its judgment for that of the agency, especially in areas of
administrative expertise.’ ” Id., quoting Dudukovich v. Lorain Metropolitan Hous. Auth., 58
Ohio St.2d 202, 207 (1979). “The court of common pleas has ‘the power to examine the
whole record, make factual and legal determinations, and reverse the [administrative
agency’s] decision if it is not supported by a preponderance of substantial, reliable, and
probative evidence.’ ” Id., quoting Cleveland Clinic Found. v. Cleveland Bd. of Zoning Stark County, Case No. 2023CA00085 and 2024CA00004 9
Appeals, 2014-Ohio-4809. In contrast, a de novo review requires the Reviewing Court to
review the matter “as if the cause had never been tried below.” Lincoln Properties, Inc. v.
Goldslager, 18 Ohio St.2d 154, 159 (1969).
{¶40} The Reviewing Court found that a preponderance of the evidence did not
support the Board’s decision. Instead, a preponderance of such evidence supports
allowing left-out access onto Everhard Road. While a de novo review may have been
stipulated to by the parties, the record shows the Reviewing Court properly conducted a
review pursuant to Revised Code Chapter 2506.
{¶41} Accordingly, the appellant’s first Assignment of Error is overruled.
II.
{¶42} In the appellants’ second Assignment of Error, the appellants first argue the
Reviewing Court erred as a matter of law in determining that the appellees could appeal
the denial of an exception. They also argue that the Reviewing Court lacked jurisdiction
to consider the issue because the Board did not rule upon the exception. We disagree.
{¶43} “Questions of law are reviewed de novo.” In re Estate of Quick, 2004-Ohio-
4434 (5th Dist.), ¶25. A de novo review requires an independent review of the common
pleas court’s decision without any deference to its determination. Brown v. Scioto Cty.
Bd. of Commrs., 87 Ohio App.3d 704 (4th Dist.1993).
{¶44} R.C. §5552.07 states:
A board of county commissioners or board of trustees that adopts
access management regulations under section 5555.02 of the Revised Stark County, Case No. 2023CA00085 and 2024CA00004 10
Code shall include in those regulations the designation of a board to hear
and decide appeals when it is alleged that there is error in any order,
requirement, decision, or determination made by an administrative official
in the enforcement of regulations. This appellate board may be the board
itself acting in an administrative capacity, or some other board appointed by
the board of county commissioners or board of township trustees,
whichever is applicable. The regulations also shall authorize that appellate
board to grant variances that are not contrary to the public interest from the
terms of the regulations where, owing to special conditions, a literal
enforcement of the regulations will result in unnecessary hardship, and so
that the spirit of the regulations will be observed and substantial justice
done.
{¶45} Regulation §3(K) states, “[p]ursuant to Revised Code 5552.07, the Board of
Commissioners upon adoption of access management regulations shall designate a Stark
County Road Access Board of Appeals to hear and decide appeals when it is alleged that
there is error in any order, requirement, decision or determination made by an
administrative official in the enforcement of these Regulations.”
{¶46} Regulation §3(L) states, “[i]n cases where the applicant and the Engineer
cannot resolve an issue, the applicant has the right to take their case to the Stark County
Road Access Board of Appeals to have their case heard and acted upon accordingly.”
{¶47} Regulation §4.4 states, in pertinent part, “[t]he Engineer has the ability to
grant exceptions to the stated regulations based on unique or special conditions that
make strict compliance with the regulations impractical or impossible.” Stark County, Case No. 2023CA00085 and 2024CA00004 11
{¶48} Regulation §4.5.1(A) states, “[t]he Road Access Board of Appeals may
grant variances to these regulations that are not contrary to the public interest where,
owing to special conditions, a literal enforcement of these Regulations will result in
unnecessary hardship, and so that the spirit of the Regulations will be observed and
substantial justice done.”
{¶49} Regulation §4.5.2(A) states, “[i]f an applicant believes the Engineer
mistakenly applied or misinterpreted these access management regulations, the
applicant can appeal the access decision.”
{¶50} Therefore, the Regulations provide for an appeal process to review an
administrative official’s orders, requirements, decisions, and determinations and seek a
variance from the board.
{¶51} In the case sub judice, the appellees appealed the Engineer’s decision and
requested a variance from the Board. Both actions are permitted by R.C. §5552.07 and
the accompanying regulations. Both actions are reviewable by the Reviewing Court
according to Revised Code Chapter 2506.
{¶52} Additionally, the appellants argue that since the Board failed to explicitly
affirm the Engineer’s decision to deny the appellees an exception to the regulations, the
Reviewing Court lacks jurisdiction to hear an appeal. This argument is analogous to when
a trial court fails to rule upon a motion. When a trial court fails to rule on a motion, it is
presumed to be overruled. Hayes v. Smith, 62 Ohio St. 161, 189 (1900). Therefore, the
Board’s failure to affirm or reverse the Engineer’s decision to deny the appellees and
exception to the regulations implicitly affirmed that decision. Accordingly, the issue was
appropriately before the Reviewing Court. Stark County, Case No. 2023CA00085 and 2024CA00004 12
{¶53} The appellants’ second Assignment of Error is overruled.
III.
{¶54} In the appellant’s third Assignment of Error, the appellant argues the
Reviewing Court erred as a matter of law in its interpretation and application of the criteria
for a variance in the Regulations and abused its discretion in finding that the evidence
satisfied this standard. We disagree.
{¶55} “A determination of the burden of proof is a question of law.” Bros. v.
Morrone-O’Keefe Dev. Co., 2006-Ohio-1160, ¶¶16-17. Again, “[q]uestions of law are
reviewed de novo.” In re Estate of Quick, 2004-Ohio-4434 (5th Dist.), ¶25. A de novo
review requires an independent review of the common pleas court’s decision without any
deference to its determination. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704
{¶56} “The term ‘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 v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶57} In the appellants’ third assignment of error, the appellants argue the court
of common pleas erred in placing the burden of proof on the Engineer to present evidence
to refute the appellees’ arguments and that the appellees met the burden of showing a
variance was appropriate. We disagree. Stark County, Case No. 2023CA00085 and 2024CA00004 13
Burden of Proof
{¶58} Again, Regulation §4.5.1(A) states, “[t]he Road Access Board of Appeals
may grant variances to these regulations that are not contrary to the public interest where,
owing to special conditions, a literal enforcement of these Regulations will result in
unnecessary hardship, and so that the spirit of the Regulations will be observed and
{¶59} The party contesting a decision in an appeal under R.C. §2506.04 bears the
burden of showing that the decision is erroneous. Akron City Sch. Dist. Bd. of Edn. V.
Civil Serv. Comm., 2012-Ohio-1618 (9th Dist.), ¶7.
{¶60} In the case sub judice, the appellants argue that the Reviewing Court
erroneously places the burden of proof on the appellants. However, the record does not
support this argument. In the July 12, 2023, Judgment Entry, the Reviewing Court says,
“[t]he Court agrees that it is [the appellees] who must carry the burden of proof in this
administrative appeal.” 7/12/2023 J. Entry at 10. The Reviewing Court merely recognized
that the appellants failed to present evidence in support of their decision, the court did not
shift the burden of proof to the appellants. Accordingly, the Reviewing Court appropriately
placed the burden of proof on the appellees.
Abuse of Discretion
{¶61} The appellants also argue that the Reviewing Court abused its discretion in
finding the evidence presented by the appellees met the burden of proof, showing that
the Board should have granted a variance. We disagree.
{¶62} Again, R.C. §5552.07 states: Stark County, Case No. 2023CA00085 and 2024CA00004 14
A board of county commissioners or board of trustees that adopts
access management regulations under section 5555.02 of the Revised
Code shall include in those regulations the designation of a board to hear
and decide appeals when it is alleged that there is error in any order,
requirement, decision, or determination made by an administrative official
in the enforcement of regulations. This appellate board may be the board
itself acting in an administrative capacity, or some other board appointed
by the board of county commissioners or board of township trustees,
whichever is applicable. The regulations also shall authorize that appellate
board to grant variances that are not contrary to the public interest from the
terms of the regulations where, owing to special conditions, a literal
enforcement of the regulations will result in unnecessary hardship, and so
that the spirit of the regulations will be observed and substantial justice
{¶63} Regulation §4.5.1(A) states, “[t]he Road Access Board of Appeals may
grant variances to these regulations that are not contrary to the public interest where,
owing to special conditions, a literal enforcement of these Regulations will result in
unnecessary hardship, and so that the spirit of the Regulations will be observed and
{¶64} The Reviewing Court noted that the terms “public interest,” “special
conditions,” and “unnecessary hardship” are not defined in applicable statutes. As such,
the court used context, applying the rules of grammar, common usage, and case law to
guide its analysis. The court found the term “public interest” to mean: Stark County, Case No. 2023CA00085 and 2024CA00004 15
More than a mere curiosity; it means something in which the public,
the community at large, has some pecuniary interest, or some interest by
which their legal rights or liabilities are affected. It does not mean anything
so narrow as the interests of the particular localities, which may be affected
by the matters in question.
State ex. rel. Ross v. Guion, 82 Ohio Law Abs.1 (8th Dist.1959); State ex rel. Athens Cty.
Dept. of Human Serv. v. Wolf, 77 Ohio App.3d 619, 625 (4th Dist.1991). The Reviewing
Court identifies two groups as having a “public interest.” The first group is those
individuals traveling on Everhard Road or turning left out of the property and those living
in the nearby residential neighborhood.
{¶65} A traffic engineer testified regarding a traffic impact study. He testified that
restricting left-out turns onto Everhard road would cause traffic to be diverted from a
commercial area to go through a residential area creating an unsafe environment. The
traffic engineer also testified that any queueing for the left turn onto Everhard Road would
be contained on the Property. He concluded by saying that right-out only access does not
grant reasonable access to the Property and that allowing left-out access would be safer.
The Reviewing Court found that “the driver at Fulton Drive and Everhard Road may
acquiesce, to some degree, to traffic congestion, the same cannot be said of the
homeowners who abut the Property.” J.Entry at 27.
{¶66} An urban and neighborhood planner testified that, in his opinion, full access
to Everhard Road should be granted as the commercial zone could accommodate the
traffic better than the residential neighborhood. He testified that the neighborhood does Stark County, Case No. 2023CA00085 and 2024CA00004 16
not have curbs or sidewalks, so more people will be walking in the streets. The increased
traffic flow would be dangerous for the neighborhood.
{¶67} The Reviewing Court concluded that the evidence presented at the hearing
weighs in favor that left-out access onto Everhard Road would not be contrary to the
public interest.
{¶68} The Reviewing Court noted that the Property’s shape and location are
special conditions necessitating a variance. The record shows that the property is “L-
shaped” and connected to two different commercial areas, and it also acts as a buffer
between these commercial zones and a rural residential area.
{¶69} With regard to unnecessary hardship, the Reviewing Court noted, “[t]he
mere fact that appellees’ property can be put to a more profitable use does not, in itself,
establish an unnecessary hardship where less profitable alternatives are available within
the zoning classification.” Consol. Mgt., Inc. v. City of Cleveland, 6 Ohio St.3d 238, 242
(1983). Furthermore, a financial burden alone cannot create a hardship justifying a
variance. Id.
{¶70} Historically, the Property had full access to both Fulton Road and Everhard
Road. Now, it is being denied full access to both. “Zoning regulations impose hardship
sufficient to support the granting of a variance if the only permitted uses are not
economically feasible. Unnecessary hardship exists where an existing and legal use
cannot efficiently be continued because of insufficient parking facilities, or because of the
size or shape of a lot, or the placement of an existing building.” Brown v. Canfield Bd. of
Zoning Appeals, 123 Ohio App.3d 442, 446 (7th Dist.1997). Stark County, Case No. 2023CA00085 and 2024CA00004 17
{¶71} A certified appraiser testified that due to the loss of full access to both
Everhard Road and Fulton Road, the property owner would be unable to use the land the
same way. The property owners are continuing to use the property for the same zoning
classification, and the hardship suffered is attributable to restricting access out of the
property. The Reviewing Court found this in favor of allowing a variance.
{¶72} Accordingly, we find the Reviewing Court’s decision was not unreasonable,
arbitrary, or unconscionable.
{¶73} The appellants’ third Assignment of Error is overruled.
IV.
{¶74} In the appellant’s fourth Assignment of Error, the appellant argues the
Reviewing Court erred when it failed to follow the prescribed procedure for ruling on a
Civ.R. 60(B) motion. We disagree.
{¶75} To prevail on a motion to vacate a judgment pursuant to Civ.R. 60(B), the
movant must demonstrate that : (1) the party has a meritorious defense 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. GTE Automatic Electric Company, Inc. v. ARC Industries, Inc., 47 Ohio
St.2d 146 (1976), paragraph two of the syllabus. The GTE Automatic factors are
“independent and conjunctive, not disjunctive.” Blaney v. Kerrigan, 1986 WL 8646 (Aug.
4, 1986). “[F]ailing to meet one is fatal, for all three must be satisfied in order to gain Stark County, Case No. 2023CA00085 and 2024CA00004 18
relief.” Id. at 5. Our standard to review a court’s decision as to whether to grant a Civ.R.
60(B) motion is an abuse of discretion. Id.
{¶76} Again, “[t]he term ‘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 v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶77} In their fourth Assignment of Error the appellants seem to argue that the
Reviewing Court sua sponte ignored their Civ.R. 60(B) motion and instead recast as a
motion to vacate a void judgment. However, they are ignoring several pages of the
Reviewing Court’s January 5, 2024, Judgment Entry denying their Civ.R. 60(B) motion.
1/5/2024 J.Entry at 8-14.
{¶78} Civ.R. 60(B), in pertinent part, states:
(B) Mistakes; Inadvertance; Excusable Neglect; Newly Discovered
Evidence; Fraud; Etc. 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 Stark County, Case No. 2023CA00085 and 2024CA00004 19
application; or (5) any other reason justifying relief from the judgment. The
motion shall be made within a reasonable period of time, and for reasons
(1), (2), (3) not more than one year after the judgment, order or proceeding
was entered or taken. A motion under this subdivision (B) does not affect
the finality of a judgment or suspend its operation.
{¶79} In the Reviewing Court’s January 5, 2024, Judgment Entry, the Reviewing
Court addresses whether or not the appellant has a meritorious defense or claim to
present if relief is granted. The appellants’ arguments can be categorized as 1) A transfer
of Mr. Crum’s interest in the Property pursuant to the purchase agreement after the
decision by the appeals board warrants relief from judgment; and 2) the appellees
abandoned their argument by seeking final approval of an alternate option.
{¶80} The Reviewing Court noted that the appellants and appellees entered into
a stipulation. The parties stipulated that the Reviewing Court’s analysis was confined to
the record before the board. Therefore, the Reviewing Court could not review the transfer
of Mr. Crum’s interest in the Property nor the appellees seeking an alternative site plan
because of the parties’ stipulation. The appellants have failed to establish that they have
a meritorious defense or claim to present if relief is granted.
{¶81} Accordingly, the appellants’ fourth Assignment of Error is overruled.
V.
{¶82} In the appellant’s fifth Assignment of Error, the appellant argues the
Reviewing Court abused its discretion in denying the appellants’ Civ.R. 60(B) motion. Stark County, Case No. 2023CA00085 and 2024CA00004 20
{¶83} Again, to prevail on a motion to vacate a judgment pursuant to Civ.R. 60(B),
the movant must demonstrate that : (1) the party has a meritorious defense 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. GTE Automatic Electric Company, Inc. v. ARC Industries, Inc., 47 Ohio
St.2d 146 (1976), paragraph two of the syllabus. The GTE Automatic factors are
“independent and conjunctive, not disjunctive.” Blaney v. Kerrigan, 1986 WL 8646 (Aug.
4, 1986). “[F]ailing to meet one is fatal, for all three must be satisfied in order to gain
relief.” Id. at 5. Our standard to review a court’s decision as to whether to grant a Civ.R.
{¶84} “The term ‘abuse of discretion’ connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”
{¶85} The appellants summarily argue the Reviewing Court abused its discretion
in denying their Civ.R. 60(B) motion.
{¶86} The appellants have the burden of demonstrating error on appeal. See,
App.R. 16(A)(7). “It is the duty of the appellant, not this court, to demonstrate his assigned
error through an argument that is supported by citations to legal authority and facts in the
record.” State v. Untied, 2007-Ohio-1804 (5th Dist.), ¶141. Therefore, we may disregard Stark County, Case No. 2023CA00085 and 2024CA00004 21
assignments of error the appellants presented for review since they failed to identify in
the record the error on which the assignment of error is based. App.R. 12(A)(2).
{¶87} The appellants acknowledge that they fail to point to any particular error but
state the failure of the court to rule on the Civ.R. 60(B) motion is a reversible error. To the
extent the appellants are arguing that the Reviewing Court failed to perform a Civ.R. 60(B)
analysis, we have addressed this in the appellants’ fourth Assignment of Error above. Any
other arguments the appellants are attempting have not met the requirements of
App.R.16 and, accordingly, are disregarded pursuant to App.R. 12.
{¶88} The appellants fifth Assignment of Error is overruled.
CONCLUSION
{¶89} For the forgoing reasons, the judgment of the Court of Common Pleas,
Stark County, Ohio, is hereby affirmed.
By: Baldwin, J.
Delaney, P.J. and
Gwin, J. concur.