Summers v. Lancia Nursing Homes, Inc.

[Cite as Summers v. Lancia Nursing Home, 2017-Ohio-9218.]

STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

KAREN J. SUMMERS, AS )

ADMINISTRATRIX OF THE ESTATE )

OF ARLA JOHNSON, AND )

PERSONAL REPRESENTATIVE, ) CASE NO. 17 BE 0011

)

PLAINTIFF-APPELLANT, )

)

VS. ) OPINION

)

LANCIA NURSING HOMES, INC., )

D/B/A BELMONT MANOR NURSING )

HOME et al., )

)

DEFENDANTS-APPELLEES. )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common

Pleas of Belmont County, Ohio.

Case No. 12-CV-0072

JUDGMENT: Affirmed.

JUDGES:

Hon. Carol Ann Robb

Hon. Gene Donofrio

Hon. Cheryl L. Waite

Dated: December 20, 2017

[Cite as Summers v. Lancia Nursing Home, 2017-Ohio-9218.]

APPEARANCES:

For Plaintiff-Appellant: Atty. Geoffrey C. Brown

Atty. Scott S. Blass

Atty. Tyler Smith

Atty. James B. Stoneking

Bordas & Bordas PLLC

1358 National Road

Wheeling, West Virginia 26003

For Defendants-Appellees: Atty. James K. Reuss

Atty. Karen M. Cadieux

Carpenter Lipps & Leland LLP

280 Plaza, Suite 1300

280 N. High Street

Columbus, Ohio 43215

Atty. Martin T. Galvin

Atty. Thomas A. Prislipsky

Reminger Co., L.P.A.

101 West Prospect Avenue,

Suite 1400

Cleveland, Ohio 44115-1093

[Cite as Summers v. Lancia Nursing Home, 2017-Ohio-9218.]

ROBB, P.J.

{¶1} Plaintiff-Appellant Karen J. Summers, Administratrix of the Estate of

Arla Johnson appeals the decision of Belmont County Common Pleas Court denying

her Civ.R. 60(B) motion to vacate the trial court’s ruling on her Civ.R. 59 new trial

motion.

{¶2} This appeal is the third appeal from the underlying case. The first

appeal was from a discovery order, which this court determined was not a final

appealable order. Summers v. Lancia Nursing Homes, Inc., 7th Dist. No. 12 BE 0039

(August 30, 2013) J.E. (Summers I). The second appeal addressed the trial court’s

denial of the Civ.R. 60(B) motion. Summers v. Lancia Nursing Homes, Inc., 7 Dist.

No. 15 BE 0063, 2016-Ohio-7935 (Summers II). In Summers II, we held the trial

court abused its discretion when it failed to hold an evidentiary hearing to determine

whether Civ.R. 60(B)(1) and the second prong of the GTE test was met. Thus, the

matter was remanded for an evidentiary hearing. Following the evidentiary hearing,

the trial court denied the Civ.R. 60(B)(1). The issue now before us is whether the trial

court violated the law of the case doctrine and the mandate rule.

{¶3} For the reasons expressed below, the trial court did not violate either

rule. The trial court’s decision is affirmed.

Statement of the Case

{¶4} In early 2012, Appellant filed a medical malpractice and wrongful death

complaint against Defendants–Appellees Lancia Nursing Homes Inc. d/b/a Belmont

Manor Inc. (Appellee Belmont Manor), Dr. Carmel C. Shaw–Nieves, and Dr. Divakar

Sydney Bangera. Decedent Arla Johnson was a resident of Appellee Belmont Manor

and Appellees Drs. Shaw–Nieves and Bangera were her doctors.

{¶5} The case proceeded through discovery. A discovery order was

appealed to our court and we determined the order was not a final appealable order.

Summers I, August 30, 2013 J.E.

{¶6} Trial occurred in April 2015 and the jury returned a defense verdict.

4/28/15 J.E. Following the verdict, Appellant filed a timely Civ.R. 59 motion for a new

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trial. Appellant did not file a notice of appeal from the judgment entry memorializing

the jury verdict because pursuant to App.R. 4(B)(2), the filing of the motion for new

trial extended the time to file a notice of appeal. The time for filing a notice of appeal

from the jury verdict and the ruling on the new trial motion began to run when the trial

court entered the judgment on the motion for new trial. App.R. 4(B)(2).

{¶7} Appellees each filed their own motion in opposition to the Civ.R. 59

motion. 7/6/15 Appellee Dr. Bangera's Motion in Opposition; 7/7/15 Appellee Dr.

Shaw–Nieves' Motion in Opposition; Appellee Lancia Nursing Homes, Inc., 7/9/15

Appellee Belmont Manor's Motion in Opposition. Appellant filed a combined reply to

the motions in opposition. 7/14/15 Reply. Neither Appellant's Civ.R. 59 motion, nor

her response in opposition to the motion asked for a hearing on the new trial motion.

6/23/15 Motion; 7/14/15 Reply.

{¶8} The trial court decided the new trial request on the briefs and denied

Appellant’s motion. 7/21/15 J.E. The judgment indicated the clerk of courts was to

serve copies on all parties or their attorneys. The docket indicated the clerk served

copies by regular mail on July 21, 2015 to James Reuss, Kevin Coleman, Thomas

Prislipsky, and Scott Blass, the attorneys for Appellees and Appellant.

{¶9} On August 27, 2015, Appellant filed a motion to vacate based on Civ.R.

60(B), Civ.R 58, and the court's inherent authority to vacate judgments. Appellant

argued counsel did not receive the denial of the motion for a new trial and discovery

of the July 21, 2015 judgment did not occur until August 24, 2015 when Attorney

Geoffrey Brown audited his open files. Attached to the motion were affidavits from

Attorney Geoffrey Brown and Attorney Scott Blass, attorneys working for Bordas &

Bordas, PLLC, the law firm representing Appellant. In his affidavit, Attorney Brown

explained he asked Attorneys Stoneking, Smith, and Blass if it would be advisable to

request a hearing on the motion for new trial. Attorney Stoneking checked the online

docket and discovered the July 21, 2015 order denying the motion for new trial and

the clerk's notation that Attorney Blass was served by regular mail. As a result,

Attorney Brown talked to Attorney Blass, interviewed his own administrative staff,

examined the firm's computer files, and examined the firm's hard copy file to

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determine if the order was received. Based on his investigation, he determined the

firm did not receive the order. Attorney Blass also avowed he did not receive a copy

of the order through mail and was unaware of its existence until August 24, 2015.

{¶10} Appellee Belmont Manor filed a motion in opposition to the motion to

vacate. 9/2/15 Appellee Belmont Manor Motion. Appellees Dr. Bangera and Dr.

Shaw–Nieves filed separate motions to join in Appellee Belmont Manor's motion in

opposition to relief from judgment. 9/3/15 Appellee Dr. Bangera Joinder Motion;

9/10/15 Appellee Dr. Shaw–Nieves Joinder Motion. The trial court denied the motion

to vacate without holding an evidentiary hearing. 9/2/15 J.E.

{¶11} Appellant appealed the order arguing the trial court erred in denying

Civ.R. 60(B) relief. Summers II, 2016-Ohio-7935. In Summers II, we noted Appellant

acknowledged the motion to vacate was not filed for the purpose of asking the trial

court to reconsider its ruling, but was filed to enable Appellant to perfect his appeal.

The motion to vacate was filed because Appellant’s attorneys claimed they did not

receive the July 21, 2015 order denying the motion for a new trial. Discovery of the

order did not occur until after the 30 day appeal time had expired. Id. at ¶ 16.

{¶12} This court held given the circumstances, Civ.R. 60(B) was the proper

means to attack the July 21, 2015 judgment. Id. at ¶ 18-28. We then discussed the

GTE test and explained the first and third prongs of the test were easily met. Id. at ¶

29-40. As to the second prong, Appellant asserted counsels’ actions constituted

excusable neglect. Id. at ¶ 36. We stated given the affidavits from the attorneys, the

trial court should have held an evidentiary hearing to determine whether the

attorney’s excuse for failing to know about the final judgment was excusable neglect.

Id. at ¶ 40. Thus, we ultimately determined there was merit with the appeal; the trial

court should have sua sponte held an evidentiary hearing since the issue before it

was fact specific. Id. at ¶ 40. Accordingly, we remanded the matter to the trial court

for an evidentiary hearing. Id. at ¶ 40-41.

{¶13} An evidentiary hearing was held on January 18, 2017. Attorneys Scott

Blass and Geoffrey Brown testified. 1/18/17 Tr. Following the hearing, each party

filed a post-hearing brief in support of their position. 1/31/17 Appellee Belmont

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Manor Brief; 2/1/17 Appellant Brief; 2/1/17 Appellee Dr. Shaw-Nieves Brief; 2/1/17

Appellee Dr. Bangera Brief.

{¶14} On February 13, 2017, the trial court denied Civ.R. 60(B) relief. In

rendering its ruling, the court stated:

The Plaintiff’s case was remanded to this Court for an Evidentiary

Hearing in regard to their 60(B) Motion. The Plaintiff’s testimony

essentially consisted of Attorneys Blass & Brown reiterating their

affidavits previously filed with this Court setting forth that they didn’t

receive a copy of this Court’s July 21, 2015 Order. They further

testified that neither checked the online docket. Four attorneys from the

Bordas & Bordas Law Firm participated in this case. Only one filed a

notice of appearance. Attorney Smith failed to file a notice of

appearance, even though his office is located in another city

(Pittsburgh), thus, removing his office from those receiving notice from

the clerk. This Court does not know what the testimony of Attorney

Smith and Attorney Stoneking would have revealed in that neither took

the stand to testify. Whether they checked the online docket or not and

whether they then failed to act was not presented to this Court.

Additionally, the testimony revealed that during the month in question,

the Bordas Law Firm had an office across the street from the Belmont

County Courthouse and therefore could have easily checked the Clerk’s

docket. Inexplicably, the person or persons responsible for receiving the

mail at the Bordas Law Firm were not called as witnesses at the

Evidentiary Hearing.

The most troubling testimony involved the procedure the Bordas Law

Firm had in place to provide for protection against missing Appellate

deadlines. They had no procedure. There was no tickler system, no

automatic 30 day calendar check, nothing. In fact, pursuant to

testimony at the Evidentiary Hearing, the only reason the four attorneys

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on the case checked the docket at all was because there was a

discussion about whether they should ask for a hearing on their Motion

for New Trial. They then stumbled upon this Court’s order which had

been filed on July 21, 2015 placing them past the Appellate Rule 4(A)

30 day deadline.

Pursuant to Griesmer “the vicissitudes of mail service mandate regular

inspection of the electronic docket.” None of the four attorneys nor any

of their staff did so, or if in fact someone did, no one took action

thereafter. Civil Rule 58 does not require receipt of notice, but rather

“The failure of any party to receive such notice shall not affect . . . the

running of the time for appeal.” At the time of the Court’s July 21, 2015

ruling, no one at the law firm of Bordas & Bordas was tracking the

Appellate Rule deadlines in any cases in any manner whatsoever.

There was no tickler system, no automatic calendar follow up to protect

against missed deadlines. It is telling that since this case, there are at

least some individual efforts being made to protect against the missing

of Appellate Court deadlines. It was the “carelessness, inattention, or

willful disregard of the process of the Court” as set forth in Vanest that

resulted in the missed deadline in the case at bar.

This matter was remanded to this Court for Evidentiary Hearing and the

weighing of evidence. The same took place on January 18, 2017. The

Plaintiff chose what evidence to present and what not to present. This

Court finds said evidence to be unconvincing. When taking “into

consideration all the surrounding facts and circumstances,” to grant

Plaintiff’s 60(B) motion would “serve as an emasculation of the pleading

rules and time limits” as set forth by the Supreme Court in Griffey supra.

This Court is not willing to set such a precedent for violation of pleading

rules and time limits. Wherefore, after due consideration of the exhibit

presented at the hearing herein, the credibility of the witness and the

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post hearing briefs, this Court hereby denies Plaintiff’s Motion for Relief

From Judgment Order.

2/13/17 J.E.

{¶15} Appellant timely appealed raising one assignment of error.

Assignment of Error

“The trial court erred in denying the plaintiff’s motion for relief from judgment

under Civ.R. 60(B).”

{¶16} Appellant’s argument is based on the law of the case doctrine and the

mandate rule. Appellant contends the trial court allowed the evidentiary hearing to

exceed the scope of our “limited remand” and relied on the information that was

beyond the scope to render its ruling.

{¶17} The law of the case doctrine “provides that the decision of a reviewing

court in a case remains the law of that case on the legal questions involved for all

subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v.

Nolan, 11 Ohio St.3d 1, 3, 462 N.E .2d 410 (1984). This rule applies to issues

previously resolved within the same case. Reid v. Cleveland Police Dept., __ Ohio

St.3d __, 2017-Ohio-7527, __ N.E.3d __, ¶ 11.

{¶18} The appellate mandate rule pertains to “the relationship between

appellate and inferior courts, [and] is a jurisdictional bar on the inferior court's

authority to reconsider issues that were expressly or impliedly decided in a previous

appeal.” Fritzgerald v. City of Cleveland Civ. Serv. Commission, 8th Dist. No.

104492, 2017-Ohio-7086, ¶ 24, citing Phillips v. Houk, 587 Fed.App. 868, 871 (6th

Cir.2014). The Eighth Appellate District further explained:

An appellate mandate works in two ways: it vests the lower court on

remand with jurisdiction and it gives the lower court on remand the

authority to render judgment consistent with the appellate court's

judgment. Under the “mandate rule,” a lower court must “carry the

mandate of the upper court into execution and not consider the

questions which the mandate laid to rest.” Sprague v. Ticonic Natl.

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Bank (1939), 307 U.S. 161, 168, 59 S.Ct. 777; see, also, State ex rel.

Cordray v. Marshall, 123 Ohio St.3d 229, 2009–Ohio–4986, 915 N.E.2d

633, at ¶ 32 * * *. The lower court may, however, rule on issues left

open by the mandate. Id. But when the mandate leaves nothing left to

decide, the lower court is bound to execute it. Id.

State v. Carlisle, 8th Dist. No. 93266, 2010–Ohio–3407, ¶ 16.

{¶19} Appellant contends the trial court violated both of these rules when it

permitted testimony about the online docket.

{¶20} In Summers II, we remanded the case for an evidentiary hearing.

Summers II, 2016-Ohio-7935, ¶ 40. We determined the first and third prongs of the

GTE test were clearly met; however, as to the second prong, an evidentiary hearing

was required. Id. After citing our previous case reviews of when appellate courts have

found excusable neglect, we stated:

The facts of this case could be deemed comparable to those situations.

In filing the motion for Civ.R. 60(B), Appellant provided affidavits from

two attorneys indicating the procedure followed after mail is received at

the law firm, and both attorneys avowed they did not receive the notice

in the mail. The actions of the attorneys, if believed, do not show a

complete disregard for the judicial system. Consequently, Civ.R.

60(B)(1) could be applicable if the affidavits from the attorneys is

believed.

Id. at ¶ 39.

{¶21} We then specifically stated, “the trial court should have held an

evidentiary hearing to determine whether Civ.R. 60(B)(1) was met, i.e. was the

attorneys’ excuse for failing to file a timely notice of appeal believable.” Id. at ¶ 40.

Thus, the remand was limited to the issue of excusable neglect. Our decision and

direction did not include a limitation that evidence concerning the online docket could

not be considered. Accordingly, the trial court did not violate the law of the case or

the mandate rule by hearing evidence about the online docket.

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{¶22} Admittedly, the Eighth District’s statement, “the vicissitudes of mail

service mandate regular inspection of the electronic docket”, made in Griesmer v.

Allstate, 8th Dist. No. 91194, 2009-Ohio-725, ¶ 21 was raised to this court in the

briefs in Summers II. Thus, the issue was before this court. In our Summers II

opinion, we did not determine whether there is a duty to regularly check the electronic

docket nor did we determine what regular inspection means. Accordingly, there is no

absolute duty to check the online docket.

{¶23} Case law in our district supports this conclusion. The reason we are

reluctant to impose such duty is technology is not consistently available across our

district. For example, one county in our district does not have an online docket,

another county’s online docket became available only recently, and a third county’s

online docket is available but not accessible to this court due to firewalls. Imposing a

duty to regularly check the docket in our district would require different degrees of

duty depending on the county. Our district is not alone; other multicounty districts

have counties with different levels of online accessibility. Furthermore, if there is a

duty to check an online docket regularly, then the rule would apply to pro se litigants.

See State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d

124, 2009-Ohio-4688, 914 N.E.2d 402, ¶ 1; Fuller v. Mengel, 100 Ohio St.3d 352,

2003-Ohio-6448, 800 N.E.2d 25, ¶ 10; Sabouri v. Ohio Dept. of Job & Family Servs.,

145 Ohio App.3d 651, 654, 763 N.E.2d 1238 (2001) (“[P]ro se litigants * * * are held

to the same standard as litigants who are represented by counsel.”). Although the

accessibility to internet is vast there are still residents of Ohio who do not have

access to internet.

{¶24} Our decision in Summers II did not determine there is a duty to

regularly check the online docket in this district. However, that does not mean use or

knowledge of the online docket cannot be considered in determining excusable

neglect. There may be situations where an online docket checking system could

provide evidence of excusable or inexcusable neglect. For instance, if an attorney

knew of the online docket in county A and B, and has a system of regularly checking

the online docket in county B, but not checking the online docket in county A, then

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there may be evidence that the attorney’s conduct in failing to check the online

docket in county A was not excusable neglect. Furthermore, considering the

language used in remanding the matter for an evidentiary hearing, this court did not

eliminate the allowance of evidence of the online docket.

{¶25} Therefore, this court concludes the trial court did not violate the law of

the case nor the mandate rule.

{¶26} We shall now address Appellant’s argument the trial court abused its

discretion in denying the motion to vacate. In holding there was no excusable

neglect, the court indicated two of the four attorneys working on the case did not

testify. Therefore, whether or not they checked the online docket and whether they

failed to act was not presented to the court. Also, the person responsible for

receiving the mail at the law firm was not called as a witness. The court also stated

the testimony indicated the firm had no procedure to protect against missing an

appellate deadline. There was no tickler system nor 30 day check. The court stated

the only reason the attorneys checked the docket was to discuss if they should ask

for a hearing on the motion for new trial. The court then cited the Griesmer case for

the duty to check the online docket. The court stated it found the evidence to be

“unconvincing” and when taking into consideration all surrounding facts and

circumstances, this was not excusable neglect. 2/13/17 J.E.

{¶27} The transcript of the hearing does indicate only two of the four attorneys

working on the case testified at the hearing; Attorney Tyler Smith and Attorney Jay

Stoneking did not testify. Attorneys Smith and Stoneking tried the case to the jury,

and worked on and filed the motion for new trial. Attorney Smith’s primary office was

in Pittsburgh, Pennsylvania, and there was no testimony offered from him on whether

he received notice or checked the online docket.

{¶28} The person who received the mail also did not testify. Appellant states

that person is retired. However, retirement would not prevent the person from

testifying.

{¶29} Attorney Blass testified the prompting to check the online docket was to

see if a hearing was set for the new trial motion. Tr. 10, 15. Attorney Brown testified

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he internally audits his cases at least every two months, but usually it is every couple

weeks. Tr. 51. In doing that audit, Attorney Brown checked this case and sent out

an email to the other attorneys on the case asking what needed to be done next. Tr.

52. According to Attorney Brown that prompted Attorney Blass to suggest the online

docket be checked to see if anything was set. Tr. 52. That led to the discovery of the

July 21, 2015 judgment on August 24, 2015. Tr. 52.

{¶30} Upon discovering the order, an investigation ensued as to why this was

the first time they had heard of the order. Attorney Brown first checked to see if the

clerk had Attorney Blass’ name and the correct address, which it did. Tr. 53.

Attorney Brown testified about the firm’s procedure upon receiving mail. One

employee collects the mail, separates it by addressee, and then gives it to the staff of

the attorney. Tr. 8. Attorney Blass stated his mail went to his paralegal who scans

the mail, saves the electronic copy to the electronic file, and gives the hard copy to

him. Tr. 8. The hard copy is date stamped. Tr. 8. Attorney Blass then takes

whatever action is needed depending on the content of the correspondence. Tr. 8-9.

After that, the hard copy is put in his out box. Tr. 9-10.

{¶31} Attorney Blass and Attorney Brown both reviewed the computer file to

make sure the order had not come in and been overlooked; the computer file did not

show receipt of the order. Tr. 11, 55. Attorney Brown looked through the hard file to

see if the order was in there. Tr. 11, 54-55, 56. It was not. Tr. 12, 55, 56.

Furthermore, no staff recalled seeing the order. Tr. 12, 56. Attorney Brown also

stated he communicated directly to Attorney Stoneking to see if he was aware of the

order and he also emailed Attorney Smith to see if he was aware of the order. Tr. 54.

Both responded they were not. Tr. 54. Both Attorney Blass and Attorney Brown

presumed Attorney Smith did not check the online docket at any time between June

23, 2015 (the date the new trial motion was filed) and August 24, 2015 (the date the

July 21, 2015 order was discovered) because given the inquiry he would have told

them he did. Tr. 27, 79. Attorney Brown also presumed Attorney Smith’s paralegal

did not check the online docket. Tr. 80.

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{¶32} When asked if he or his staff put a reminder on the firm’s case

management online docket or calendar to check for a trial court order following the

filing of the new trial motion, Attorney Blass explained:

As a firm, I’m not aware of any procedural mechanism by which we’ve

adopted some type of protocol that we can be on the lookout for orders

we don’t receive. I mean, no. I can tell you that, you know, the protocol

is you once you’re advised – once you’re informed of a deadline, you

make sure it’s docketed. I know personally, like Geoff, I make it a habit

to review virtually every one of my files every 30 days, because I am

responsible for a couple of associates and monitoring their cases. I’ll

make it through virtually all my cases to make sure, to see if there’s

anything that needs to be done.

Now, like Geoff I think in this case, I would have done the same thing

and said, “This hasn’t been set for hearing, we haven’t heard anything.

Let’s see if we can get it moving.” And at that point, the online docket

was checked.

***

No. I’m unaware of any system that would – that when we file a motion,

would say okay, we want to do X within 30 days. I mean, when we get

an order that says, you know, that’s when we enter our actual deadline.

I guess the one system that’s in place, at least for Geoff and I, and I

think others, is just the constant monitoring of all of our files to see what

activities are going on in them, to see if – what we can do to help move

the case along. In plaintiff’s practice, you want to keep your cases

moving. But other than that, you know, then that’s really not a

computer system; that’s just I’m at work on Saturday for eight hours,

and I’m going through every one of my files to make sure everything is

up to date.

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***

Wasn’t a formal protocol in place for someone to actively every two

weeks, every three weeks, every 30 days, check the dockets, I mean,

of any particular case. Other that, I think I said, reviewing our files and

seeing, okay, nothing has happened in this; let’s look into it. Let’s figure

out what we can do to move it along. But not like some alert would

come up on your computer saying – although I have those now; I can

have my staff run something out. If my associate hasn’t addressed a

case for 30 days, it will let me know nothing has been done in the file

for 30 days, and I’ll take a look at it. But other than that, no.

Tr. 26-27, 33-34, 34-35.

{¶33} The attorneys stated their actions were reasonable in this case. Tr. 43,

59. Attorney Brown stated it was excusable neglect:

Yes, and I know what you’re asking, and yes. In context of that, yes. I

think that could we have checked the online docket sooner than we did.

And I’ll say “we”. I’ll say I. Could I have checked the online docket

sooner than I did? I could have. There was nothing that would have

prevented me from doing that. I didn’t.

However, the sequencing of events here and the timing is something

that I don’t think is subject to a hard and fast rule when it comes to

electronic dockets. When it comes to those things, I think I’ve

developed a practice where there is a lot of factors. It’s what’s going on

with that particular case at the time. A lot of it has to do with my

comfort level and familiarity with that particular clerk’s office. So, for

example, I practice very infrequently in jurisdictions like Cuyahoga

County. Certainly more than Cuyahoga County, but Franklin County is

another jurisdiction which has electronic dockets. And in those

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situations, maybe when you’re getting a comfort level at the off—offset

of a ca – case, it’s a flexible approach.

So is it an attempt by me or our firm to disregard the importance of this?

No, it is not.

So yes, I think in that sense, as this is a – it’s a mistake. It’s a—if you

want to talk about the terms of the rule that you’re discussing.

Excusable neglect, inadvertent mistake, yes, it is.

Tr. 59-60.

{¶34} Considering the above, there was a procedure for handling mail, but not

necessarily one for checking to see when a final order was issued by a court.

Attorney Brown did an internal audit, which is what caught the July 21, 2015 order. In

this case, the visiting trial judge was very prompt in ruling on the motion for new trial;

the order was issued approximately one week after briefing closed. Tr. 44. The July

21, 2015 order was discovered on August 24, 2015. The Civ.R. 60(B) motion was

filed three days later.

{¶35} Given the above, the trial court did not abuse its discretion. Although

checking the online docket is not mandatory in our district, it is clear Appellant’s

attorneys knew of the online docket and in other counties checked that docket to

keep apprised of cases. Furthermore, a new trial ruling is clearly a final order and it

does extend the time for filing an appeal. This is not a situation where a party is

blindsided by a final order it was not expecting. A tickler system could have easily

been used to check and see if the order was issued. Parties are expected to keep

themselves informed on the progress of their case. Moreover, the trial court

indicated it did not believe the Attorneys. Appellant did not have Attorney Smith,

Attorney Stoneking, and the mail employee testify. The Court found fault in their

exclusion and stated, “The Plaintiffs choose what evidence to present and what not to

present. This Court finds said evidence to be unconvincing.” 2/13/17 J.E. The trial

court’s reasoning is not unreasonable.

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{¶36} In conclusion, the law of the case doctrine and the mandate rule were

not violated, and the trial court did not abuse its discretion in denying the motion to

vacate. The trial court’s decision is affirmed.

Donofrio, P.J., concurs.

Waite, J., concurs.