[Cite as Estate of Jones v. State, 2023-Ohio-3234.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
ESTATE OF DEWEY A. JONES, III/ C.A. No. 30208
EXECUTOR LYNN CLARK 30209
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
STATE OF OHIO COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CV-2020-01-0357
DECISION AND JOURNAL ENTRY
Dated: September 13, 2023
HENSAL, Judge.
{¶1} The Estate of Dewey Jones appeals a judgment entry of the Summit County Court
of Common Pleas that granted the State of Ohio’s motion to vacate and a judgment entry that
denied its motion to enforce settlement. For the following reasons, this Court reverses the granting
of the motion to vacate in Case No. 30208 but affirms the denial of the motion to enforce settlement
in Case No. 30209.
I.
{¶2} In 2020, Mr. Jones filed an action against the State, seeking to be declared a
wrongfully imprisoned individual. In January 2021, he reached a settlement with the State. The
parties informed the court, which ordered the matter to be marked settled and dismissed and
indicated that, if the parties did not journalize and file a final entry within 30 days that the order
would be the final order. Before the parties finished preparing an entry, Mr. Jones died. The State
nevertheless approved and jointly submitted a final judgment entry, which the trial court entered
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as a judgment of the court. The judgment declared Mr. Jones to have been a wrongfully imprisoned
individual and indicated that he would be entitled to commence a civil action against the State in
the Court of Claims.
{¶3} Six months later, the State moved to vacate the judgment under Civil Rule 60(B)(4)
and (5). It argued that the judgment the court entered was void, that Mr. Jones’s wrongful
imprisonment claim abated upon his death, that the claim was not saved under Revised Code
Section 2305.21, and that Mr. Jones was the only real party in interest, so his estate lacked standing
to continue the lawsuit. The Estate opposed the motion and filed a motion to enforce settlement
and order payment. The trial court granted the motion to vacate, concluding Mr. Jones’s claim
abated upon his death and should have been dismissed at that time. It subsequently denied the
Estate’s motion to enforce settlement, concluding there was nothing to enforce. The Estate has
appealed, assigning two errors that it has argued together, contrary to Appellate Rules 12(A)(2)
and 16(A)(7). This Court, nevertheless, will exercise its discretion to consider the combined
arguments. See State v. Torrence, 9th Dist. Summit No. 30099, 2022-Ohio-3024, ¶ 13.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT UNLAWFULLY VACATED THE DECLARATION OF
INNOCENCE BECAUSE: (1) THE OHIO SUPREME COURT HAS REJECTED
THE USE OF RULE 60(B) TO UNDO BINDING SETTLEMENT CONTRACTS
UNDER THE INSTANT CIRCUMSTANCES; AND (2) THE PREMISE OF THE
VACATURE IS FLAWED AS A MATTER OF LAW AND FACT.
ASSIGNMENT OF ERROR II
THE TRIAL COURT SHOULD HAVE ENFORCED THE SETTLEMENT
CONTRACT AGAINST THE STATE OF OHIO BECAUSE: (1) THE STATE
AND JONES ENTERED A BINDING AND ENFORCEABLE SETTLEMENT
CONTRACT WHILE JONES WAS STILL ALIVE; (2) THE STATE AGREED
TO ENFORCE THE SETTLEMENT CONTRACT WITH KNOWLEDGE OF
AND DESPITE JONES’ DEATH; AND (3) THE COURT PARTIALLY
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ENFORCED THE CONTRACT BY ISSUING THE DECLARATION OF
INNOCENCE, WHICH THE STATE ALLOWED TO STAND FOR SIX
MONTHS PRIOR TO CHALLENGING.
{¶4} In its first assignment of error, the Estate argues that the trial court wrongfully
invoked Rule 60(B)(5) to vacate its judgment, which had been jointly drafted by the parties. The
Estate argues that the agreement was approved and signed by the Ohio Attorney General’s office,
was served on the Attorney General himself, and contained a term expressly allowing Mr. Jones
to commence a civil action in the Court of Claims. According to the Estate, the State knew all the
circumstances, did not appeal, and merely used Rule 60(B) as an attempt to back out of its
agreement.
{¶5} The trial court granted the motion to vacate “pursuant to Civ. R. 60(B)(5)[.]” That
rule provides that “[o]n 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 * * * any other reason
justifying relief from the judgment.” Civ.R. 60(B)(5); see Thornton v. Borstein, 9th Dist. Summit
No. 29669, 2021-Ohio-2231, ¶ 24 (explaining that Rule 60(B)(5) is a catch-all provision). The
rule also provides that the “motion shall be made within a reasonable time[.]” Civ.R. 60(B). The
Ohio Supreme Court has recognized that “Civ.R. 60(B)(5) ‘is only to be used in an extraordinary
and unusual case when the interests of justice warrant[ ] it.’” (Alteration in original) State ex rel.
Hatfield v. Miller, __ Ohio St.3d __, 2023-Ohio-429, ¶ 12, quoting Adomeit v. Baltimore, 39 Ohio
App.2d 97, 105 (8th Dist.1974). “A litigant cannot use a Civ.R. 60(B) motion for relief from
judgment as a substitute for a timely appeal.” Id. “This Court reviews a trial court’s decision to
grant * * * a motion for relief from judgment under Civil Rule 60(B) for an abuse of discretion.”
Thornton at ¶ 23.
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{¶6} “The General Assembly has developed a two-step process to compensate those who
have been wrongfully imprisoned. The first step is an action in the common pleas court seeking a
preliminary factual determination of wrongful imprisonment; the second step is an action in the
Court of Claims to recover money damages.” Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678,
¶ 10; R.C. 2743.48. The final judgment entry completed the first step.
{¶7} The trial court granted the motion to vacate because it determined that Mr. Jones’s
claim had abated upon his death. Under Section 2311.21, however, “no action or proceeding
pending in any court shall abate by the death of either or both of the parties thereto, except actions
for libel, slander, malicious prosecution, for a nuisance, or against a judge of a county court for
misconduct in office, which shall abate by the death of either party.” Compare R.C. 2305.21
(indicating which actions “may be brought notwithstanding the death of the person entitled or
liable thereto.”); Murray v. State, 8th Dist. Cuyahoga No. 78374, 2002 WL 337732, *3 (Feb. 21,
2002) (concluding estate of Sam Shepard could not seek determination that he had been a
wrongfully imprisoned individual 25 years after his death).
{¶8} Notwithstanding the express language of Section 2311.21, the Ohio Supreme Court
has determined that some other claims also abate upon the death of a party. For example, divorce
actions and aspects of workers’ compensation claims abate upon a party’s death. State ex rel. Litty
v. Leskovyansky, 77 Ohio St.3d 97, 99 (1996); State ex rel. Navistar, Inc. v. Indus. Comm. of Ohio,
160 Ohio St.3d 7, 2020-Ohio-712, ¶ 9, citing Ohio Adm.Code 4123-5-21.
{¶9} A wrongful imprisonment action under Section 2743.48 is not included in Section
2311.21 as a proceeding that abates upon the death of the claimant. The State also did not identify
any authority of the Ohio Supreme Court recognizing an exception to Section 2311.21 for wrongful
imprisonment claims. Furthermore, if a court announces its decision before the death of a party,
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the action “does not automatically abate” if a death occurs before the court has entered its written
judgment. Brooks v. Brooks, 6th Dist. Lucas No. L-02-1286, 2003-Ohio-5177, ¶ 12. In that
situation, the court has discretion to either dismiss the action or enter a judgment nunc pro tunc
dated back to the date of the announced decision. Id.; Caprita v. Caprita, 145 Ohio St. 5, 7-11
(1945) (detailing the history of the rule’s application in Ohio).
{¶10} Having been advised of the parties’ settlement, the trial court ordered Mr. Jones’s
wrongful imprisonment action to be marked settled and dismissed with the costs divided between
the parties. The order also provided that, if the parties did not file a final entry within a certain
period, that order would serve as the final order in the case. The parties subsequently prepared a
judgment entry for the court and submitted it with knowledge of Mr. Jones’s passing in the interim.
Accordingly, even if the Ohio Supreme Court were to conclude that a claim for wrongful
imprisonment abates upon the death of the claimant, the trial court retained the authority to enter
a judgment that reflected the parties’ settlement. See id. The fact that the court did not enter the
judgment nunc pro tunc was, at worst, reversible error that the State could have raised in a direct
appeal.
{¶11} As previously noted, “[a] litigant cannot use a Civ.R. 60(B) motion for relief from
judgment as a substitute for a timely appeal.” Miller, __ Ohio St.3d __, 2023-Ohio-429, ¶ 12.
Upon review of the record, we conclude that this is not the “extraordinary and unusual case” that
fits the description of a circumstance warranting relief from judgment under Rule 60(B)(5). Id.,
quoting Adomeit, 39 Ohio App.2d at 105. The trial court, therefore, exercised improper discretion
when it granted the motion to vacate.
{¶12} The State argues that, even though the trial court granted its motion to vacate under
Rule 60(B)(5), it did not have to satisfy the requirements of the rule because the final judgment
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was void. According to the State, when Mr. Jones’s claim abated at his death, the trial court lost
jurisdiction to enter a judgment in the case. The Ohio Supreme Court has determined, however,
that issues such as standing and abatement do not affect a court’s subject matter jurisdiction. State
ex rel. Jones v. Suster, 84 Ohio St.3d 70, 78 (1998) (declining to “elevate the defenses of the statute
of limitations, standing, and abatement to the level of jurisdictional defects.”). The Estate’s first
assignment of error is sustained.
{¶13} In its second assignment of error, the Estate argues that the trial court incorrectly
denied its motion to enforce settlement. Under Section 2743.48, however, “[a]ll wrongful-
imprisonment claimants must follow a two-step process.” Griffith v. City of Cleveland, 128 Ohio
St.3d 35, 2010-Ohio-4905, paragraph two of the syllabus. Mr. Jones completed the first step by
securing a determination in the court of common pleas that he “is a wrongfully imprisoned
individual entitled to compensation[.]” Id. “In the second step, the claimant must file a civil action
against the state, in the Court of Claims, to recover a sum of money.” Id. The trial court had no
authority to order the State to pay the amount of the settlement.
{¶14} Upon review of the record, we conclude that, although the trial court incorrectly
determined that the motion to enforce settlement agreement should be denied because there was
no agreement to enforce, it did not commit reversible error when it denied the motion because the
Estate’s recourse lies in filing a civil action in the Court of Claims. See Miller, __ Ohio St.3d __,
2023-Ohio-429 at ¶ 11-12 (explaining that a lower court’s decision may be correct even if its
reasoning was not). The Estate’s second assignment of error is overruled.
III.
{¶15} The Estate’s first assignment of error is sustained. Its second assignment of error
is overruled. The judgment entry of the Summit County Court of Common Pleas granting the
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State’s motion to vacate is reversed but its judgment entry denying the Estate’s motion to enforce
settlement is affirmed.
Judgment in Case No. 30208 is reversed,
and judgment in Case No. 30209 is affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, 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.
In Case No. 30208, costs taxed to Appellee. In Case No. 30209, costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
SUTTON, P. J.
CONCURS.
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FLAGG LANZINGER, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶16} I do not believe the trial court erred when it vacated its March 26, 2021 judgment.
entry and refused to enforce that judgment. I would conclude that Mr. Dewey’s claim, and hence
his Estate’s claim, abated upon his death. Accordingly, I would affirm the trial court’s judgment
in Case No. 30208. I also would affirm the trial court’s judgment in Case No. 30209. The issue
of whether the Estate and the State reached an enforceable settlement was one properly presented
to the Court of Claims, not the Court of Common Pleas. Because I agree with the majority’s
decision to affirm in Case No. 30209 (albeit for different reasons) but disagree with its decision to
reverse in Case No. 30208, I concur in part, and dissent in part.
{¶17} R.C. 2305.21 governs the survival of actions while R.C. 2311.21 governs their
abatement. R.C. 2305.21 provides:
In addition to the causes of action which survive at common law, causes of action
for mesne profits, or injuries to the person or property, or for deceit or fraud, also
shall survive; and such actions may be brought notwithstanding the death of the
person entitled or liable thereto.
R.C. 2311.21 provides:
Unless otherwise provided, no action or proceeding pending in any court shall abate
by the death of either or both of the parties thereto, except actions for libel, slander,
malicious prosecution, for a nuisance, or against a judge of a county court for
misconduct in office, which shall abate by the death of either party.
When analyzing whether an action has abated, a court “is not limited to R.C. 2311.21, but also
must include R.C. 2305.21.” Witcher v. Fairlawn, 113 Ohio App.3d 214, 217 (9th Dist.1996).
See also State ex rel. Crow v. Weygandt, 170 Ohio St. 81, 84 (1959).
{¶18} A wrongful imprisonment action is a special proceeding. McClain v. State, Slip
Opinion No. 2022-Ohio-4722, ¶ 16. It is a specifically tailored legislative construct that waives
“the immunity from civil liability that is normally retained by the state.” Bundy v. State, 143 Ohio
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St.3d 237, 2015-Ohio-2138, ¶ 17. The action did not exist at common law. McClain at ¶ 16.
Accordingly, it is not a “cause[] of action which survive[d] at common law” under R.C. 2305.21.
Nor does it result in “injuries to the person” within the meaning of that statute. Murray v. State,
8th Dist. Cuyahoga No. 78374, 2002 WL 337732, *3 (Feb. 21, 2002), quoting R.C. 2305.21. In
the context of R.C. 2305.21, “injuries to the person” means physical injuries rather than injuries to
one’s personal rights. Witcher at 217. A claim of wrongful imprisonment only alleges a violation
of one’s personal rights. Murray at *3.
{¶19} While R.C. 2311.21 does not expressly include wrongful imprisonment as a cause
of action that abates upon one’s death, “additional exceptions not stated in [that] statute also apply
to abate an action.” Jones v. Jones, 11th Dist. Geauga No. 2022-G-0032, 2023-Ohio-989, ¶ 14.
For example, courts have recognized that divorce actions, certain worker’s compensation actions,
and actions for false imprisonment may abate upon the death of a party. See State ex rel. Hamlin
v. Indus. Comm., 68 Ohio St.3d 21, 22 (1993) (workers’ compensation); Estate of Reed v. Reed,
9th Dist. Medina Nos. 16CA0063-M, 16CA0068-M & 16CA0069-M, 2017-Ohio-8350, ¶ 5
(divorce); Witcher at 217-219 (false imprisonment). I agree with the trial court that, as a matter of
law, Mr. Jones’ cause of action for wrongful imprisonment abated upon his passing. Only Mr.
Jones could maintain a cause of action for an alleged violation of his own personal rights. See
Murray at *3; R.C. 2743.48 (creating cause of action for a “wrongfully imprisoned individual” as
defined by that statute). His estate could not pursue a claim on his behalf. See Murray at *3.
{¶20} While Civ.R. 60(B) cannot be used as a substitute for a direct appeal, I do not agree
that law is applicable in this matter. Mr. Jones’ death was not a matter of record in the trial court
such that the State could appeal that issue without resorting to evidence outside the record. See In
re S.L.M., 9th Dist. Summit No. 29482, 2019-Ohio-5403, ¶ 15. I would conclude that the State
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properly obtained relief from judgment pursuant to Civ.R. 60(B)(5). See, e.g., Walls v. Proctor,
8th Dist. Cuyahoga No. 53212, 1987 WL 10594 (Apr. 30, 1987). As such, I would affirm the
judgment of the trial court in Case No. 30208.
{¶21} Regarding the Estate’s motion to enforce settlement, I would conclude that the
Court of Common Pleas lacked jurisdiction to determine that issue. “[C]ivil claims against the
state fall within the exclusive, original jurisdiction of the Court of Claims.” Cristino v. Ohio Bur.
of Workers’ Comp., 118 Ohio St.3d 151, 2008-Ohio-2013, ¶ 1, citing R.C. 2743.03(A)(1) and
(A)(2). The Estate alleged that the parties had reached a full settlement, including the amount to
be paid by the State under the settlement. A full settlement would obviate the need for a court
declaration finding Mr. Dewey to be a wrongfully imprisoned individual. However, only the Court
of Claims could decide whether the parties had an enforceable settlement agreement. The trial
court did not have jurisdiction to rule on that issue. For that reason, I would conclude that the trial
court properly denied the Estate’s motion to enforce. As such, I also would affirm the judgment
of the trial court in Case No. 30209.
APPEARANCES:
MICHELE L. BERRY, Attorney at Law, for Appellant.
DAVE YOST, Attorney General, and D. CHADD MCKITRICK, Senior Assistant Attorney
General, for Appellee.