COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73725 FRANK MARTIN : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF BEDFORD HEIGHTS, ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-226291 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: PATRICK FLANAGAN (#0030973) SAVOY, BILANCINI & FLANAGAN 595 West Broad Street Elyria, Ohio 44035 For Defendants-Appellees: CHARLES MERCHANT (#0012781) 5661 Perkins Road Bedford Heights, Ohio 44146 LEO M. SPELLACY, J.: Plaintiff-appellant Frank Martin ( appellant ) appeals from the denial of his Civ.R. 60(B)(5) motion for relief from judgment and/or motion to vacate judgment. -2- Appellant assigns the following error for review: I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S CIV. R. 60(B)(5) MOTION FOR RELIEF FROM JUDGMENT AND/OR MOTION TO VACATE A VOID JUDGMENT.(R.35) Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On February 3, 1992, appellant filed an administrative appeal pursuant to R.C. 124.34 in the court of common pleas. Appellant appealed from his dismissal from the Bedford Heights Police Department after appellant attended a function on a boat cruise while on sick leave. The City of Bedford Heights and the Civil Service Commission of Bedford Heights filed a motion to dismiss appellant's appeal for failure to file a supersedeas bond. On July 14, 1992, the trial court overruled the motion to dismiss but then dismissed the case without prejudice subject to the savings statute. Appellant re-filed his case on September 11, 1992. The City of Bedford Heights and the Civil Service Commission again moved to dismiss the appeal for the failure to file a supersedeas bond. On March 24, 1993, the trial court issued a nunc pro tunc order in which it vacated its journal entry of July 14, 1992, and re- instated the case. Appellant was ordered to post a supersedeas bond. The case proceeded to a trial de novo on September 9, 1993. The trial court found appellant did violate the rules and regulations of the Bedford Heights Police Department for failing to -3- obtain permission before leaving his home while on sick leave. The trial court found that the violation did not warrant discharge and modified the discharge to a one hundred-day suspension. The City of Bedford Heights and the Civil Service Commission appealed that decision to this court. In Martin v. Civil Service Commission of Bedford Heights (April 6, 1995), Cuyahoga App. No. 67513, unreported, this court reversed the trial court and entered judgment for the Civil Service Commission. This court held that the July 14, 1992, dismissal constituted a final appealable order as a dismissal of an appeal, unlike an original action, cannot be without prejudice. Further, the nunc pro tunc judgment was invalid as it altered the actual decision of the trial court. The Supreme Court of Ohio declined to hear appellant's appeal as no substantial constitutional question was present. On September 20, 1996, appellant filed a Civ.R. 60(B)(5) motion for relief for judgment and/or motion to vacate judgment. In his motion, appellant argued that relief should be granted as the trial court had no authority to dismiss his appeal of the decision of the Civil Service Commission. Appellant stated that the manner in which the case was dismissed would lead a reasonable person to believe the appeal could be re-filed. Appellant contended the erroneous judgment deprived him of justice and due process. Appellant averred that he had a meritorious claim to present, pointing to the trial court's modification of his discharge to a one hundred-day suspension, and that his motion was -4- made in a timely fashion. Appellant also argued that the trial court's dismissal was void as the Court of Appeals held that a Civil Service Appeal cannot be dismissed without prejudice and is not subject to the savings statute. Appellant also maintained that the order was void because the trial court dismissed his appeal although no motion to dismiss was pending. In support of his motion, appellant filed the affidavit of the original trial judge which stated that, at the time of the July 14, 1992, dismissal, he believed appellant would be able to re-file his case. The trial court denied appellant's motion for relief from judgment and/or motion to vacate. The trial court found a Civ.R. 60(B) motion for relief from judgment to be inappropriate as appellant never appealed the order of July 14, 1992. Further, the order was not void as the original trial court had personal and subject matter jurisdiction. II. In his sole assignment of error, appellant contends the trial court abused its discretion by denying his Civ.R. 60(B)(5) motion for relief from judgment. Appellant points out that the trial court gave no notice of its intention to dismiss the appeal. No motion to dismiss was before the trial court at the time the ruling was made. Appellant argues that the language used in the order stating that the appeal was dismissed without prejudice subject to the savings statute would lead any reasonable person to believe the case could be re-filed within a year. -5- Civ.R. 60(B) provides: 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 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. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. Generally, to prevail on a motion brought pursuant to Civ.R. 60(B), it must be demonstrated 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), (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 Electric v. ARC Industries Inc. (1976), 47 Ohio St.2d 146. If any of these three requirements is not met, the motion should be overruled. Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 351. The question of whether relief should be granted is -6- addressed to the sound discretion of the trial court. Griffey v. Rajan(1987), 33 Ohio St.3d 75, 77. 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. Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App.3d 578, 581. In order to have an abuse in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. Huffman v. Hair Surgeon (1985), 19 Ohio St.3d 83, 87. Civ.R. 60(B)(5) is a catch-all provision that is not to be used as a substitute for Civ.R. 60(B)(1), (2), or (3), when it is too late to seek relief under those provisions. It is to be used only in extraordinary and unusual cases when the interests of justice warrants it. Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 105. Civ.R. 60(B)(5) reflects the inherent power of a court to relieve a person from the unjust operation of a judgment. Caruso- Ceresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, paragraph one of the syllabus. The trial court denied appellant's motion for relief from judgment because appellant did not appeal the judgment of July 14, 1992. Civ.R. 60(B) relief is not available as a substitute for appeal. Elyria Twp. Bd. Of Trustees v. Kerstetter (1993), 91 Ohio App.3d 599. A Civ.R. 60(B) motion cannot be used as a substitute for appeal to collaterally attack a judgment on its merits as it does not bring the original judgment up for review. Zaring v. -7- Lyons (Feb. 12, 1996), Butler App. No. CA95-09-163, unreported. Civ.R. 60(B) motions do not address alleged legal errors made by a trial court. A Civ.R. 60(B) motion allows a trial court to grant relief where the factual circumstances relating to the judgment are shown to be materially different from what was apparent at the time the judgment was rendered. Kay v. Glassman (Feb. 1, 1995), Summit App. No. 16726, unreported. Appellant argues he had no reason to believe the July 14, 1992, dismissal was a final order until the decision of this court was rendered. However, it was appellant's responsibility to protect his rights by filing a notice of appeal. That it was unclear as to whether or not the order was final does not excuse appellant from appealing the trial court's decision. Finality determinations regularly are made by a reviewing court. Because appellant could have appealed the judgment of July 14, 1992, he cannot bypass a direct appeal by way of a Civ.R. 60(B) motion. Appellant also asserts that the trial court had no authority to dismiss his appeal as no motion to do so was pending before the trial court. This is a legal issue which is to be determined upon appeal and not by way of a motion for relief from judgment. The trial court did not abuse its discretion by denying appellant's Civ.R. 60(B)(5) motion. Appellant's next argument is that the judgment of the trial court was void. In order for a judgment to be void, the court must be lacking jurisdiction over either the subject matter or the parties. In Re Forfeiture of Property No Longer Needed as -8- Evidence (1993), 86 Ohio App.3d 68, 70. Only when a court lacks such jurisdiction is its judgment void and not voidable. Id. Appellant does not contend that the trial court had neither subject matter nor personal jurisdiction. Therefore, the judgment of the trial court was voidable and not void. The trial court did not err by overruling appellant's motion to vacate. Appellant's assignment of error is overruled. Judgment affirmed. It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court -9- directing the Common Pleas 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. DIANE KARPINSKI, J. CONCURS IN PART AND DISSENTS IN PART; (See Concurring and Dissenting Opinion Attached.) JAMES M. PORTER, P.J. DISSENTS; (See Dissenting Opinion Attached.) LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(B). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73725 FRANK MARTIN : : : CONCURRING Plaintiff-Appellant : : and v. : : DISSENTING CITY OF BEDFORD HEIGHTS, ET AL. : : OPINION : Defendant-Appellees : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1998 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I concur in part and dissent in part with the majority's and dissent's disposition of this case and write to clarify several points. The dissent is correct in stating that the appellant did not need to post a supersedeas bond in this instance. In Mahoney v. Berea (1986), 33 Ohio App.3d 94, the Eighth District held that because R.C. 2505.06 is not applicable to appeals pursuant to R.C. 124.34 a supersedeas bond need not be posted. In the case at bar, plaintiff's appeal was filed pursuant to R.C. 124.34. Case law subsequent to the overruling of the July, 1992 motion to dismiss continues to support the contention that a bond is not needed in this case. See Trademark Homes v. Avon Lake Bd. of Zoning Appeals (1993), 92 Ohio App.3d 214, (holding that a supersedeas bond under -2- R.C. 2505.06 is required only when a judgment was rendered for money damages). The dissent is mistaken, on the other hand, in relying on Cerney as precedent allowing relief under Civ.R. 60(B) in this case. Cerney is substantially different from the case at bar in two ways. First, in Cerney, the motion for relief from judgment was filed within ten days of the last decision of the court; here, the defendant filed the motion four years after the judgment he seeks relief from and ten months after the Ohio Supreme Court refused to hear the motion for reconsideration. As the majority correctly states, if any of the three requirements needed to prevail on a 60(B) motion is not met, the motion should be overruled. See Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 351. To file a motion for relief from judgment ten months after the last decision of the Court and four years after the judgment from which Martin seeks relief, prevents him from prevailing on his Civ.R. 60(B) motion because it falls outside the reasonable time required. Second, the case at bar significantly differs from Cerney in its history. In Cerney, the trial court granted the motion for relief from judgment, and this court properly deferred to the trial court's decision. To reverse in the case at bar, however, we must find an abuse of discretion. See Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. Under that standard, I cannot agree to reversal. There is no abuse of discretion when the appellant has failed to explain why it was -3- reasonable to wait ten months after the last judicial decision of the court to file his motion for relief from judgment. Finally, I agree with the lead opinion in its reading of Martin I. The dismissal of the July 14, 1992 order constituted a final appealable order. Martin v. Civil Service Commission of Bedford Hts. (Apr. 28, 1995), Cuyahoga App. No. 67513, unreported. The dismissal of an appeal, unlike an original action, cannot be without prejudice. Id. It is well-settled law in Ohio that a final appealable order cannot be refiled subject to the savings statute because R.C. 2305.19 relates only to original actions and not appeals. Atcherly v. Dickinson (1878), 34 Ohio St.537; Parker v. Cent. Mfrs. Mut. Ins. Co. (1953), 98 Ohio App.169. The McCann case relied upon in Martin I is not at odds with Lewisas the dissent claims. In McCann, this court stated that it views Lewis as distinguishable because it is a decision under the Worker's Compensation Act: In Lewis v. Connor (1985), 21 Ohio St.3d 1, 21 OBR 266, 487 N.E.2d 285, in a distinguishable decision under the Workers' Compensation Act, the Ohio Supreme Court in a very narrow decision held the savings statute does permit the refiling of only a workers' compensation complaint in the appellate court. McCann v. Lakewood (1994), 95 Ohio App.3d 226, 233, fn. 7. This court considers the Ohio Supreme Court's holding in Lewis to be very narrow, permitting among administrative appeals the refiling of only a workers' compensation complaint in the court. In applying Lewis to the case at bar, the dissent fails to appreciate the difference between a workers' compensation appeal -4- and other appeals from administrative decisions. Generally, an administrative appeal to common pleas court is treated substantially like an appeal, that is, the record from the administrative agency hearing provides evidence, and briefs are filed arguing the evidence produced at that hearing. A workers' compensation appeal, on the other hand, is a hybrid appeal. R.C. 4123.512 allows for the appeal of an order of the industrial commission to the court of common pleas. A de novo trial then occurs in common pleas court on the claims. See Wasil et al. Ohio Workers' Compensation (1997), Section 14:141. To prepare for that trial, normally the litigants engage in discovery, depose witnesses, and file medical expert reports. No matter who filed the appeal, workers are required to file a complaint and carry the burden of proving their claims. In other administrative appeals, it is the appellant who carries the burden. Moreover, the norm is that new evidence is not introduced. Indeed, for new evidence to be admitted, it must be shown that, even with due diligence, the evidence could not have been provided below. R.C. 119.12; Cincinnati City School Dist. v. State Bd. of Edn. (1996), 113 Ohio App.3d 305, 3171. In other words, there is sound reason for treating workers' compensation appeals differently. Because administrative appeals 1 Of course, evidence can be admitted under certain circumstances, for example, when additional facts are necessary to show a constitutional violation. 2 Ohio Jurisprudence 3d (1977), Administrative Law, Section 182. Administrative hearing officers are not authorized to review constitutional questions. See Rife v. Franklin Cty. Bd. of Zoning Appeals (1994), 97 Ohio App.3d 73, 80; SMC v. Laudi (1975), 44 Ohio App.2d 325, 327. -5- to common pleas court are analogous to appeals to the court of appeals, the Cuyahoga County Court of Common Pleas has adopted a local rule that specifies in advance the briefing schedule. Local Rule 28 states in part: Except as otherwise provided by specific rules or statutes, all cases filed by way of appeal from administrative agencies, except Workers' Compensation cases, shall be governed by the same procedure. This rule does not apply to workers' compensation cases, where discovery, not briefs, occupies the first stage. It is because a separate complaint is filed and a de novo trial takes place in workers' compensation cases that workers' have the right to a voluntary dismissal of their complaint and the application of the savings statute. Because other administrative appeals to common pleas court are more analogous to appeals to this court, the right to dismiss and re-commence a case is not available. While I concur with the judgment, I disagree with the reasons the lead opinion gives. I believe a 60(B) motion might have been available in this case had it been brought earlier. Litigants might qualify for 60(B)(5) relief from judgment when they rely upon the face of a journal entry, like the one in this case, that orders dismissal without prejudice subject to the savings statute. Normally, such a decision is not a final appealable order. Moreover, at the time it appeared unnecessary to appeal a decision to protect rights that on the face of the journal entry were similarly protected by the savings statute. Because of the unique set of circumstances in this case, it would be difficult for any attorney to foresee the unusual turn of events requiring an appeal. -6- Therefore, I do not agree that the rule enunciated in Kay v. Glassman, cited in the lead opinion, controls this case. Relief pursuant to Rule 60(B)(5) could have been the proper way to untangle the procedural snarl here. However, justice also requires respect for finality. In waiting ten months after the Supreme Court ruled to ask for relief from a judgment ordered four years earlier, plaintiff lost the right to Rule 60 relief. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73725 FRANK MARTIN : : Plaintiff-appellant : : D I S S E N T I N G -vs- : : O P I N I O N CITY OF BEDFORD HEIGHTS, ET AL. : : Defendants-appellees : DATE: AUGUST 20, 1998 JAMES M. PORTER, P.J., DISSENTING: I must respectfully dissent from the majority's disposition of this appeal. The history of this case presents a litany of errors leading to the unintended consequences of depriving a litigant of his day in court. I heartily agree with the majority (Maj. Opn. at 7) that Civ.R. 60(B)(5) is a catch-all provision *** to be used only in extraordinary and unusual cases when the interest of justice warrants it *** [because] it reflects the inherent power of a court to relieve a person from the unjust operation of a judgment. This is just such a case. It is not too late to remedy the palpable injustice presented by this appeal. In the first place, there was no legal requirement that the appellant file a supersedeas bond although the trial court seemed to be of the mind that one was required. This issue was squarely addressed by this Court in Mahoney v. Berea (1986), 33 Ohio App.3d 94, where the issue was presented whether the General Assembly intended to require a supersedeas bond to be filed in an appeal pursuant to R.C. 124.34. After reviewing the relationship between R.C. 124.34 and R.C. 2505.06, we held that [s]ince the language of the statute does not require a bond to be filed, and such a bond would serve no useful purpose, we conclude that R.C. 2505.06 is not applicable to appeals pursuant to R.C. 124.34. Id. at 96. Furthermore, since there was no money judgment involved in Officer Martin's appeal from the Civil Service Commission decision affirming his discharge, there was no reason for a supersedeas bond in the court below to perfect the appeal. Mahoney v. Berea, supra, at 96; Trademark Homes v. Avon Lake Zoning Bd. (1993), Ohio App.3d 214, 217 ( a supersedeas bond pursuant to R.C. 2505.06 *** is required only where a judgment has been rendered for monetary damages. ). In short, appellant's notice of appeal was not defective for lack of a supersedeas bond and there was no reason to dismiss the appeal in the first instance. The trial court correctly overruled appellee's original motion to dismiss. -2- However, in the same order, on July 14, 1992, the trial court sua sponte dismissed the appeal w/o [without] prejudice subject to the savings statute. This was done to obviate the supersedeas bond issue and allow appellant to refile with such a bond, if one was required. There was clear precedent for utilizing the savings statute procedure under such circumstances as held in the case of Lewis v. Conner (1985), 21 Ohio St.3d 1, syllabus: Where a notice of appeal is filed within the time prescribed by R.C. 4123.519 and the action is dismissed without prejudice after expiration of that time, R.C. 2305.19, the savings statute, is applicable to workers' compensation complaints filed in the common pleas court. Although Lewis involved a claimant's appeal from the Industrial Commission to the Common Pleas Court, I perceive no reason to disregard the principle in Lewis because the instant case involves an appeal from the Bedford Heights Civil Service Commission to the Common Pleas Court. The Supreme Court has shown no indication to retreat from or limit Lewis v. Conner. See Robinson v. B.O.C. Group (1998), 81 Ohio St.3d 361, 363. There is no compelling reason that the savings statute should be available on workers' compensation administrative appeals, but not on appeal from other governmental bodies. This brings us to consideration of this Court's prior decision in Martin v. Civil Service Commission of Bedford Hts. (April 6, 1995), Cuyahoga App. No. 67513, unreported (Martin I) which held that the trial court erred when it reinstated the appeal holding as follows at 3: -3- The July 14, 1992, dismissal constituted a final appealable order. The language in the dismissal was inoperative. The dismissal of an appeal without prejudice is a non sequitur because an appeal, unlike an original action, is incapable of being refiled. McCann v. Lakewood (1994), 95 Ohio App.3d 226, 233. Similarly, the savings statute, R.C. 2305.19, is inapplicable to appeals. McCann, at 232- 233. This Court's decision in Martin I relied entirely upon McCann v. Lakewood, supra, for the proposition that the savings statute is inapplicable to appeals and the without prejudice language of the dismissal was inoperative or a non sequitur because an appeal, unlike an original action, is incapable of being refiled. McCann v. Lakewood is obviously at odds with the principle in the Lewis syllabus that the savings statute can be applied to revive a dismissed administrative appeal from the Industrial Commission. McCanndistinguished Lewis by saying it was a narrow ruling limited to workers' compensation administrative appeals. Id. at 233, Fn. 7. By the same logic, the instant case, an administrative appeal from a Civil Service Commission ruling, is distinguishable from McCannwhich involved an appeal from a Board of Zoning Appeals. In short, the McCannstatements on which the Martin I court relied are not literally applicable to Civil Service Commission appeals under R.C. 124.34 and were not controlled by McCann. Lewis v. Conner, supra holds that an administrative appeal once dismissed without prejudice can indeed be refiled under the savings statute. There is no reason to ignore that teaching when confronted with the instant appeal. -4- As the affidavit of Judge McMonagle makes clear, he relied on the precedent of the Lewis case in entering his sua sponte dismissal without prejudice. It was not until the McCann case was subsequently published that Lewis was distinguished by this Court in limiting it exclusively to workers' compensation appeals. McCann, supra, at 233, fn. 7. However, the Supreme Court has cautioned against the insistence upon slavish adherence to rules where justice is made to suffer on merely technical grounds. See National Mut. Ins. Co. v. Papenhagen (1987), 30 Ohio St.3d 14, 15: This court has repeatedly emphasized the fundamental tenet that courts should strive to decide cases on their merits. See, e.g., DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189, 23 O.O.3d 210, 431 N.E.2d 644; Fisher v. Mayfield (1987), 30 Ohio St.3d 8, 30 OBR 16, 505 N.E.2d 975. This laudable policy is totally frustrated by the dismissal of an appeal on purely technical grounds without regard to the nature of the error or the fact that it was made in good faith. In DeHart, supra, this court held that [a] court of appeals abuses its discretion when, after dismissing a case, sua sponte, for a minor, technical, correctable, inadvertent violation of a local rule, it refuses to reinstate the case when: (1) the mistake was made in good faith and not as part of a continuing course of conduct for the purpose of delay, (2) neither the opposing party nor the court is prejudiced by the error, (3) dismissal is a sanction that is disproportionate to the nature of the mistake, (4) the client will be unfairly punished for the fault of his counsel, and (5) dismissal frustrates the prevailing policy of deciding cases on the merits. Id. at syllabus. In the instant case, through no fault of his own or his counsel, plaintiff has been deprived of his day in court by a -5- Catch-22" technicality. His appeal to the trial court was dismissed for failure to file a supersedeas bond he was not required to file; the reinstatement of his appeal by the trial court was frustrated by an after-decided opinion of this Court in which it dubiously distinguished Supreme Court authority. Even if it is conceded that the Law of the Case doctrine was properly applied by the trial court in following our Martin I ruling, I would nonetheless exercise our rare prerogative to reexamine the issue as the only means of avoiding an unjust result. Where a court of appeals errs in the first review of a case, it is not precluded in the furtherance of substantial justice between the parties to make a proper determination on a second review. State v. Tanner (1993), 90 Ohio App.3d 761, 767. The obligation we face is more fully stated by this Court in Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1993), 90 Ohio App.3d 490, 493: The doctrine of the law of the case provides that a decision of a reviewing court remains the law for that case as to all relevant legal questions in subsequent proceedings both at trial and appellate levels unless that rule of practice achieves an unjust result. Weir v. Kebe (1985), 29 Ohio App.3d 53, 29 OBR 62, 503 N.E.2d 177. The rule ensures consistency in the results of the case, avoids excessive litigation, and preserves the structure of superior and inferior courts as designed by the Ohio Constitution. Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3 11 OBR 1, 2, 462 N.E.2d 410, 412. An appellate court may choose to reexamine the law of the case it has itself previously created, if that is the only means to avoid injustice. However, such reexaminations must not be undertaken lightly by an appellate court, nor encouraged as a common course of -6- conduct for unsuccessful litigants. Weaver v. Motorists Mut. Ins. Co. (1990), 68 Ohio App.3d 547, 549, N.E.2d 101, 102. In the last analysis, I would hold that Civ.R. 60(B)(5) provides grounds for the broad kind of relief necessary here, i.e., any other reason justifying relief from the judgment. Our recent decision in Cerney v. Norfolk & Western Railway Co. (1995), 104 Ohio App.3d 482 certainly provides ample precedent for allowing relief from judgment here in the interests of justice. In Cerney, this Court affirmed the trial court's vacation of a dismissal under circumstances strikingly similar to the Martin dismissal. Cerney filed an FELA suit in Common Pleas Court after being injured while working on the railroad. When the case came up for trial, the court refused to grant the plaintiff's motion for a continuance. The court suggested to plaintiff's counsel that he could dismiss, without prejudice, and refile the suit under the savings statute within one year. Plaintiff dismissed without prejudice and refiled 11/ months later, outside of the three year FELA statute of limitations. Norfolk & Western moved to dismiss contending that the savings statute did not apply to the three year statute of limitations provided under the Federal law. Relying on Burnett v. New York Central Railway Co. (1965), 380 U.S. 424, the trial court agreed and dismissed the case. Plaintiff filed a Civ.R. 60(B)(5) motion for relief from judgment. The motion was granted. Norfolk & Western appealed. -7- This Court found the vacation of the dismissal was proper. We stated as follows: Civ.R. 60(B)(5) reflects the inherent power of a court to relieve a person from the unjust operation of a judgment. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 5 OBR 120, 448 N.E.2d 1365, paragraph one of the syllabus. The court in State ex rel. Gyurcsik v. Angelotta (1977), 50 Ohio St.2d 345, 4 O.O.3d 482, 364 N.E.2d 284, quoted Justice Black in Klapprott v. United States (1949), 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266, recognizing that the other reason clause made available all equitable grounds for relief from a final judgment: `In simple English, the language of the `other reason' clause, for all reasons except the five particularly specified, vests power in the courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.' Id. at 346, 4 O.O.3d at 483, 364 N.E.2d at 285. The court in Steadley v. Montanya (1981), 67 Ohio St.2d 297, 21 O.O.3d 187, 423 N.E.2d 851, upheld the vacation of a judgment even though it extended the time period for filing an appeal. The trial judge had orally promised the defendant an oral hearing prior to ruling on the motion for a new trial. The judgment was vacated in order to rectify the breach of the oral promise and was not a subterfuge to allow the defendant to circumvent the jurisdictional time for filing a notice of appeal. In State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections (1993), 67 Ohio St.3d 134, 616 N.E.2d 869, the court stated that a mistake as to a material fact by both parties requires that the parties be relieved of the judgment. In the instant case, no one anticipated prior to the pretrial hearing that Cerney might file a notice of voluntary dismissal. Neither the trial court nor either party was aware of the effect such dismissal would have on the case. The result of the dismissal was the end of the suit under Burnett. There was no intention on the part of Cerney to -8- circumvent the statute of limitations. Although Cerney's attorney bears the ultimate responsibility for the decision to dismiss the case, it cannot be ignored that the initial suggestion to do so was made by the trial court for reasons that had to do with the court's docket rather than any issue in the case or because of the actions of the parties or attorneys. The trial court, which was involved in all the proceedings, granted the motion for relief in the interests of justice. It did not abuse its discretion in doing so. Id. at 491-492. For the foregoing reasons, I would sustain the plaintiff's .