[Cite as LSF6 Mercury Reo Invests. v. Garrabrant, 2012-Ohio-4883.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LSF6 MERCURY REO INVESTMENTS JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. 11CAE040037
RICK L. GARRABRANT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 09CVE121780
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 12, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
AMY CARR JOHN SHERROD
4805 Montgomery Road, Ste. 320 2130 Arlington Avenue
Cincinnati, Ohio 45212 Columbus, Ohio 43221
Delaware County, Case No. 11CAE040037 2
Hoffman, J.
{¶1} Defendant-appellant Rick Garrabrant appeals the April 15, 2011 Judgment
Entry entered by the Delaware County Court of Common Pleas, which denied his Civ.
R. 60(B) motion for relief from judgment. Plaintiff-appellee is LSF6 Mercury Reo
Investments.
STATEMENT OF THE CASE1
{¶2} On December 9, 2009, Appellee filed a Complaint for Foreclosure against
Appellant. Appellant was personally served on or about December 23, 2009. Appellant
filed a Motion for Extension of Time to Answer or Otherwise Plead in Order to Mediate
with the Plaintiff/Lender, which the trial court granted. The court-appointed mediator
filed a report on July 21, 2010, advising the trial court the mediation had been
unsuccessful. The trial court issued a scheduling entry, instructing Appellant to file his
Answer no later than August 9, 2010. Rather than file his Answer on the assigned date,
Appellant filed a motion to dismiss, which the trial court denied on October 26, 2010.
Appellant never filed an Answer in this matter.
{¶3} On November 17, 2010, Appellee filed a motion for default judgment. The
trial court scheduled an oral hearing on the motion before the magistrate on December
16, 2010. Appellant failed to appear at the hearing. The magistrate filed her decision
granting default judgment in favor of Appellee on December 17, 2010. The trial court
approved and adopted the magistrate’s decision on the same day. The trial court
issued a Final Judgment Entry on December 21, 2010. Appellant did not file an appeal
from this judgment entry.
1
A Statement of the Facts is not necessary for our disposition of this Appeal.
Delaware County, Case No. 11CAE040037 3
{¶4} A Sheriff’s Sale was conducted on February 16, 2011, and the property
was sold for $116,580. The trial court confirmed the sale and ordered distribution via
Judgment Entry filed March 10, 2011.
{¶5} On April 4, 2011, Appellant filed a Motion for Relief from Judgment
Pursuant to Civ. R. 60(B), alleging, as his meritorious defense, Appellee’s lack of
standing. The trial court denied the motion via Judgment Entry filed April 15, 2011.
Appellant filed a timely Notice of Appeal to this Court.
{¶6} The appeal was stayed upon Appellant’s filing a petition in bankruptcy.
Via Order filed April 19, 2012, this Court reinstated the case to the active docket.
{¶7} It is from the April 15, 2011 Judgment Entry Appellant appeals, assigning
as error:
{¶8} “I. THE TRIAL COURT ERRED IN GRANTING APPELLE’S MOTION
FOR DEFAULT JUDGMENT BECAUSE APPELLANT HAD ‘APPEARED’ IN THE
ACTION IN ACCORDANCE WITH CIV.R. 55.
{¶9} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR RELIEF FROM JUDGMENT PURSUANT TO CIV.R. 60(B).”
II
{¶10} For ease of discussion, we shall begin by addressing Appellant’s second
assignment of error first.
{¶11} The decision to grant or deny a motion for relief from judgment pursuant to
Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed
absent an abuse of the discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172. An abuse
of discretion is more than an error of judgment; it means that the trial court was
Delaware County, Case No. 11CAE040037 4
unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983),
5 Ohio St.3d 217. An abuse of discretion demonstrates “perversity of will, passion,
prejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd. (1993), 66 Ohio
St.3d 619. When applying the abuse of discretion standard, this Court may not
substitute its judgment for that of the trial court. Id.
{¶12} Civ.R. 60(B) states, in relevant part:
“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 the 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.”
{¶13} A party seeking relief from a default judgment pursuant to Civ.R. 60(B)
must show (1) the existence of a meritorious defense, (2) entitlement to relief under one
of the grounds set forth in the rule, and (3) that the motion is timely filed. See GTE
Delaware County, Case No. 11CAE040037 5
Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d
113; Blasco v. Mislik (1982), 69 Ohio St.2d 684, 433 N.E.2d 612.
{¶14} The December 21, 2010 Final Judgment Entry constituted a final decision
on the merits. Appellant's remedy was to appeal that decision. Appellant did not do so.
Rather, Appellant subsequently filed a Civ. R. 60(B) motion for relief from judgment.
{¶15} Civ.R. 60(B) was intended to provide relief from a final judgment in
specific, enumerated situations and cannot be used as a substitute for a direct, timely
appeal. See Doe v. Trumbull County Children Services Board (1986), 28 Ohio St.3d
128, 502 N.E.2d 605, at paragraph two of the syllabus. “If a party raises the same
question in a Civ.R. 60(B) motion as [it] could have raised on a direct appeal, [that party]
could get an indirect extension of time for appeal by appealing the denial of the Civ.R.
60(B) motion.” Newell v. White, Pickaway App. No. 05CA27, 2006–Ohio–637, at ¶ 15,
citing Parke–Chapley Construction Co. v. Cherrington (C.A.7, 1989), 865 F.2d 907, 915.
Thus, “[w]hen a Civ.R. 60(B) motion is used as a substitute for a timely appeal, and
when the denial of that motion is subsequently appealed, the proper response is the
dismissal of the appeal.” Garrett v. Gortz, Cuyahoga App. No. 90625, 2008–Ohio–4369,
at ¶ 14, citing State ex rel. Richard v. Cuyahoga Cty. Commrs., 89 Ohio St.3d 205, 729
N.E.2d 755, 2000–Ohio–135. See, also, Elliott v. Smead Mfg. Co., Hocking App. Nos.
08CA13 & 08AP13, 2009–Ohio–3754, at ¶ 12–13.
{¶16} Accordingly, we reject Appellant’s second assignment of error and dismiss
his appeal.
Delaware County, Case No. 11CAE040037 6
I
{¶17} In light of our disposition of Appellant’s second assignment of error, we
need not address Appellant’s first assignment of error.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
Delaware County, Case No. 11CAE040037 7
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LSF6 MERCURY REO INVESTMENTS :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RICK L. GARRABRANT :
:
Defendant-Appellant : Case No. 11CAE040037
For the reason stated in our accompanying Opinion, this appeal is ordered
dismissed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER