Goebel v. Hopkins

2022 Ohio 4718

• Court: Ohio Court of Appeals
• Decided: December 28, 2022
• Docket: CA2022-06-042
• Status: Published

Opinion

[Cite as Goebel v. Hopkins, 2022-Ohio-4718.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

CHARLES E. GOEBEL, et al., :

Appellees, : CASE NO. CA2022-06-042

: OPINION - vs - 12/28/2022 :

TIMOTHY J. HOPKINS, :

Appellant. :

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 20CS003961

Thomas E. Grossmann, for appellees.

George M. Parker and H. Louis Sirkin, for appellant.

PIPER, J.

{¶1} Appellant, Timothy Hopkins, appeals the decision of the Warren County Court

of Common Pleas denying his motion for relief from a judgment granting a civil protection

order against him.1

1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar and place it on the regular calendar for purposes of issuing this opinion. Warren CA2022-06-042

{¶2} Charles Goebel lives with his wife, Diane Goebel, and his daughter Mitzi on

Maxwell Drive in Mason, Ohio. In January 2007, the Goebels transferred a portion of their

property to Kurlemann Homes. Charles maintains that the deed contained a restrictive

covenant that prohibited the building of a driveway and garage on the east side of the

transferred property.2 Kurlemann Homes built a home in compliance with the restriction

and then sold the property to Hopkins.

{¶3} On May 7, 2020, Charles learned from workers on Hopkins' property that a

new driveway and garage were being constructed on the east side of Hopkins' home in

violation of the restrictive covenant. Pursuant to Charles' request, a Mason Police Officer

reported to serve as a neutral observer the following day when Charles and others went to

advise Hopkins of the deed restriction. When Charles advised Hopkins of the restriction,

Hopkins yelled profanities at him.

{¶4} Charles made further attempts to settle the dispute but was unsuccessful.

Despite Charles' protestations, Hopkins allegedly began construction of the driveway and

garage. In response, Charles filed a complaint and motion for a temporary restraining order

in the Warren County Court of Common Pleas ("Property Dispute Case"). The Warren

County Court of Common Pleas issued a temporary restraining order on May 26, 2020.

{¶5} On October 6, 2020, Charles filed a petition for a civil stalking protection order

and sought an ex parte civil protection order. During the ex parte hearing, Charles testified

that Hopkins had been harassing him since the disagreement over the new driveway and

garage. He further testified that Hopkins had threatened to kill him in the courthouse lobby

during a recess on a hearing in the Property Dispute Case. Following the hearing, the

magistrate issued an ex parte civil protection order against Hopkins. A final hearing upon

2. The validity of the restriction is not at issue in this appeal.

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Charles' petition for a civil stalking protection order commenced on November 18, 2020.

{¶6} Charles' wife and daughter, Diane and Mitzi, testified at the final hearing.

They variously testified that Hopkins played loud and offensive music at high volume and

played sounds of gunshots, jackhammers, and barking dogs. Mitzi testified that the volume

was so loud that it caused the walls to vibrate and shake. There was also testimony that

Hopkins repeatedly screamed profanity at the Goebels, threatened to sic his dogs on them,

threw bags of dog feces into their yard, and shined high-intensity lights into their windows.

Diane further testified about an incident where Hopkins drove his car up on the curb in an

apparent attempt to scare her while she was out walking the neighborhood.

{¶7} Hopkins testified and generally denied harassing the Goebels. He specifically

denied threatening to kill Charles during the recess of the hearing in the Property Dispute

Case. The final hearing was continued in progress. However, on February 4, 2021, the

matter was settled when Hopkins consented to the issuance of a five-year civil protection

order. The consent agreement included a waiver of rights signed by Hopkins.

Waiver

I, Timothy Hopkins understand that I have the right to a full hearing on the Petition for Civil Stalking Protections Order or Civil Sexually Oriented Offense Protection Order, and acknowledge each of the following:

1. I waive the right to have a full hearing on this Protection Order;

2. I waive the right to cross-examine witnesses and review evidence submitted in support of this Protection Order;

3. I waive the right to present witnesses and evidence on my own behalf;

4. I waive the right to request specific factual findings from the Court concerning the issuance of this Protection Order.

I understand that based on the waivers listed above, a Protection Order will be entered against me.

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{¶8} On October 14, 2021, Hopkins filed a Civ.R. 60(B) motion for relief from the

consent agreement. Hopkins stated that he was induced to enter into the consent

agreement based upon alleged misrepresentations by Charles and his counsel regarding

the death threat in the Property Dispute Case. Hopkins claimed that Charles

misrepresented that a courthouse security deputy had witnessed the death threat and the

threat was recorded by the courthouse surveillance camera. Hopkins asserted that the only

threat Charles testified about at the ex parte hearing was in regard to the death threat in the

Property Dispute Case and therefore Charles did not establish a "pattern of conduct"

necessary to justify issuance of the ex parte civil protection order. Finally, Hopkins made

broad and conclusory allegations that Charles' counsel, as a Warren County Commissioner,

gave the "perception that he controlled and could create the testimony that an alleged

witness heard and saw something that did not occur." The motion was supported by an

affidavit from Hopkins' counsel in which counsel averred that based upon review of the

transcripts of the hearings that Charles' counsel falsely represented that evidence of the

death threat was on videotape and that the threat was witnessed by the courthouse security

deputy.

{¶9} The trial court issued a scheduling order on Hopkins' motion for relief from

judgment, which provided Hopkins with an opportunity to depose the courthouse security

deputy. In a supplemental memorandum, Hopkins asserted that the deposition of the

courthouse security deputy revealed that he did not witness the death threat. The

memorandum continued with a wider theory involving a conspiracy between the Mason

Police Department and government officials where Charles' counsel used his position as a

county commissioner to disadvantage Hopkins in the litigation.

{¶10} On May 20, 2022, the trial court issued a written decision denying Hopkins'

motion for relief from judgment. Hopkins now appeals, raising a single assignment of error

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for review.

{¶11} THE TRIAL COURT ERRED IN DENYING HOPKINS' MOTION FOR RELIEF

FROM JUDGMENT.

{¶12} In his sole assignment of error, Hopkins argues the trial court erred by denying

his motion for relief under Civ.R. 60.

{¶13} Pursuant to Civ.R. 60(B), "the court may relieve a party or his legal

representative from a final judgment, order or proceedings" 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.

{¶14} In order to prevail on a Civ.R. 60(B) motion, the moving party must

demonstrate that (1) 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. GTE Automatic Electric

v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus.

{¶15} The decision to grant or deny a Civ.R. 60(B) motion lies within the trial court's

discretion, and the decision will be reversed only for an abuse of discretion. Purcell v.

Schaefer, 12th Dist. Preble No. CA2013-09-007, 2014-Ohio-4894, ¶ 26; Bowman v. Leisz,

12th Dist. Warren No. CA2014-02-029, 2014-Ohio-4763, ¶ 17. 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. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983).

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{¶16} Following review, we find the trial court did not err by denying Hopkins' motion

for relief from judgment. On appeal, Hopkins argues that he presented both a meritorious

defense and is entitled to relief under both Civ.R. 60(B)(3) and Civ.R. 60(B)(5). We disagree

for the following reasons.

Meritorious Defense

{¶17} Initially, Hopkins failed to demonstrate that he has a meritorious defense. In

this case, there was an ex parte hearing and one day of testimony on the full hearing, which

was continued in progress. During the ex parte hearing, Charles stated that Hopkins had

threatened his life during the recess of the Property Dispute Case. In the full hearing,

Charles' wife and daughter testified about the various forms of harassment that Hopkins

had done to them. The case was scheduled for further proceedings until Hopkins voluntarily

entered into the consent agreement.

{¶18} In support of his meritorious defense argument, Hopkins argues that there

was no pattern of menacing by stalking. In so doing, Hopkins complains about evidence

presented at the ex parte hearing but neglects testimony from Charles' wife and daughter.

Hopkins argues that Charles' counsel never heard Hopkins make the death threat during

the recess of the Property Dispute Case, which he claims is contrary to what counsel

represented to the court. He further insists that Charles' counsel stated that the courthouse

security deputy witnessed the death threat, which Hopkins now asserts is inaccurate.

Therefore, he claims that he had a meritorious defense to the consent agreement that he

voluntarily entered into.

{¶19} Hopkins argument is without merit. The fact that a courthouse security deputy

did not witness the death threat does not mean that such an event did not occur. Charles

testified at the ex parte hearing that such a threat did occur. The record contains still images

showing the two in close proximity with Hopkins pointing his finger at Charles, but there is

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no video evidence to fully corroborate the death threat. Hopkins was called as if upon cross

and denied the altercation. Nevertheless, despite his insistence that the death threat did

not occur, Hopkins went forward with the consent agreement.

{¶20} While Hopkins insists that there was not a "pattern" of conduct, the record

states otherwise. During the full hearing, Charles' wife and daughter testified about

numerous forms of harassing and intimidating behavior, including that Hopkins played loud

and offensive music and sounds of gunshots, jackhammers, and barking dogs. Hopkins

screamed profanity at the Goebels and threatened to sic his dogs on them, threw bags of

animal feces in their yard, and shined high-intensity lights into their room. Further, Charles'

wife, Diane, testified about an instance in which Hopkins drove his car off the road in an

apparent attempt to intimidate her. The testimony, if believed, was sufficient to establish

the necessary pattern of conduct.

{¶21} Based upon review of the record, we reject Hopkins' claim that there was no

pattern of conduct, or menacing, to support the issuance of a civil protection order. While

he may believe differently now, Hopkins entered into a valid consent agreement, which the

trial court accepted. The consent agreement detailed the rights he was waiving and

specifically stated that he understood a protection order would be entered against him. See

J.J. v. Kilgore, 10th Dist. Franklin No. 20AP-401, 2021-Ohio-928, ¶ 14 (a party is presumed

to have read and understood an agreement he has signed). Accordingly, Hopkins fails to

present a meritorious defense or claim if the Civ.R. 60(B) were granted.

Entitlement to Relief

{¶22} We likewise find that the trial court did not abuse its discretion when it found

Hopkins failed to demonstrate entitlement to relief from judgment under Civ.R. 60(B)(3) and

Civ. R. 60(B)(5).

{¶23} As to Civ.R. 60(B)(3), Hopkins again alleges that he was "tricked" into

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agreeing to the consent agreement. Hopkins argument is nearly identical to the argument

he raised in support of his claim that he has a meritorious defense. Hopkins argues that

Charles and his counsel falsely represented that they heard Hopkins threaten to kill Charles

and that the courthouse security deputy witnessed the death threat. Hopkins also argues

that Charles' counsel suppressed the testimony of the courthouse security deputy by telling

him he would not be a witness. He further argues that Charles misrepresented that Hopkins

had threatened to sic "pit bulls" on them. Hopkins claims that the "pit bull" statement was

in reference to his attorneys.

{¶24} The record simply does not support these claims. During the final hearing,

Charles' counsel responded to an objection from Hopkins' counsel addressing the

circumstances of the death threat. Charles' counsel merely related that "[h]ere's what I

heard" and then proceeded to inform the trial court about the allegation. Charles' counsel

then stated that the interaction was captured on videotape. As this court has previously

stated, the fraud, misrepresentation, or other misconduct contemplated by Civ.R. 60(B)(3)

involves deceit or misconduct where "the party seeking relief was taken by surprise when

false testimony was given and was unable to meet it or did not know of its falsity until after

trial." Bowman, 2014-Ohio-4763 at ¶ 24. In other words, the movant must show more than

misrepresentation or false testimony; he must show misconduct that prevented him from

fully and fairly presenting his defense. Bank of Am., N.A. v. Kuchta, 141 Ohio St. 3d 75,

2014-Ohio-4275, ¶ 13; State v. Berry, 12th Dist. Clermont No. CA2013-11-084, 2014-Ohio-

2715, ¶ 21.

{¶25} In this case, there was no fraud, misrepresentation, or other misconduct to

support relief under Civ.R. 60(B)(3). The issue of whether Hopkins made a death threat

was disputed between the parties. Hopkins denied making the death threat on the stand.

He also denied threatening to sic pit bulls on the Goebels, claiming he was referring to his

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lawyers. Following the close of the final hearing, the trial court continued the case in

progress for additional testimony. Hopkins was well aware of the allegations Charles was

making. Nevertheless, Hopkins voluntarily consented to the issuance of the protection

order by signing the consent agreement.

{¶26} Hopkins attempts to avoid responsibility for the consent agreement by arguing

that the testimony of the courthouse security deputy was suppressed. In so doing, he

appears to mischaracterize the courthouse security deputy as counsel's employee

(ostensibly because of his role as a county commissioner) and argues that he was unable

to fully and fairly present a defense. He also reasserts that Charles and his counsel

misrepresented evidence and committed fraud. However, these arguments are without

merit. Hopkins was able to present his testimony and, again, could have presented

additional evidence had he wanted. Hopkins chose to enter into the consent agreement.

For the reasons stated before, even if the courthouse security deputy did not hear the death

threat, that does not mean that it did not occur. Furthermore, referring to the courthouse

security deputy as counsel's "employee" is misguided and unsupported by the record. If

Hopkins had wanted the courthouse security deputy to testify, his attorney could have

secured his appearance with a subpoena. Accordingly, Hopkins' argument as to Civ.R.

60(B)(3) is without merit.

{¶27} Finally, Hopkins argues that he was entitled to relief under Civ.R. 60(B)(5).

The grounds for invoking Civ.R. 60(B)(5) must be substantial, and relief is to be granted

only in unusual or extraordinary circumstances. Robinson v. Miller Hamilton Venture,

L.L.C., 12th Dist. Butler No. CA2010-09-226, 2011-Ohio-3017, ¶ 17.

{¶28} Here, Hopkins presents bare and conclusory allegations that because

Charles' counsel is a Warren County Commissioner, he has special privileges and was able

to engage in surreptitious and improper behavior for the benefit of his client. There is

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nothing in the record to support this claim. In light of the foregoing, we find that the trial

court did not err in denying Hopkins' Civ.R. 60(B) motion. Hopkins sole assignment of error

is overruled.

{¶29} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.

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