[Cite as Bank of New York Mellon v. Casey, 2011-Ohio-6887.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE BANK OF NEW YORK MELLON JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2011 CA 31
WILLIAM JOSEPH CASEY, et al.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 10 CV 877
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 22, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
AMELIA A. BOWER JERROLD W. SCHWARZ
DAVID VAN SLYKE Post Office Box 482
PLUNKETT COONEY Pickerington, Ohio 43147
300 East Broad Street, Suite 590
Columbus, Ohio 43215
Fairfield County, Case No. 2011 CA 31 2
Wise, J.
{¶1} Defendants-Appellants Richard Wolfe and Helen Wolfe appeal the May
23, 2011, decision of the Fairfield County Court of Common Pleas denying their motion
for relief from judgment.
{¶2} Plaintiff-Appellee is The Bank of New York Mellon.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural case history are as follows:
{¶4} In March, 2005, Dan E. Starkey and Toni D. Starkey, Trustees of the
Starkey Family Revocable Living Trust UAD April 20, 1999, entered into a contract with
William Joseph Casey for the purchase and sale of real property at 955 Rock Mill Road,
Lancaster, Ohio, to Best Choice Homes
{¶5} On or about April 11, 2005, the Starkey Trust executed and delivered a
General Warranty Deed conveying the Rock Mill Property to Best Choice Homes, Inc.,
the registered trade name of William Joseph Casey.
{¶6} On or about October 16, 2006, Best Choice Homes conveyed the Rock
Mill Property to William Joseph Casey. Candice Casey also executed and delivered a
Quit-Claim Deed to William Joseph Casey.
{¶7} Ten days later, on October 26, 2006, William Joseph Casey executed and
delivered a mortgage in the amount of $186,400.00 to the predecessor of The Bank of
New York Mellon.
{¶8} Neither the original executed deeds nor the mortgage were ever recorded
with the Fairfield County Recorder and are believed to be lost.
Fairfield County, Case No. 2011 CA 31 3
{¶9} In the fall of 2007, Defendants-Appellants Richard L. Wolfe and Helen E.
Wolfe approached the Starkey Trust about obtaining title to the Property. The Wolfes,
believing the properly was abandoned, took possession of the Property.
{¶10} On or about October 25, 2007, the Starkey Trust executed a Quit-Claim
Deed to the Wolfes. That deed was then filed for record in Volume 1480, Page 2977 of
Fairfield County Records. The Wolfes paid nothing in exchange for the deed. Id.
{¶11} Plaintiff-Appellee The Bank of New York Mellon filed a Complaint for
Declaratory Judgment on July 20, 2010 for the imposition of a lien on property which is
the subject of this appeal.
{¶12} On August 12, 2010, Defendants-Appellants filed their Answer after
having been served with Summons and Complaint on July 23, 2010.
{¶13} Defendants-Appellants filed another Answer on August 19, 2010, and an
Amended Answer Filing for Dismissal on August 23, 2010. They filed a third Answer on
August 31, 2010.
{¶14} Defendants Dan E. Starkey, Trustee of the Starkey Family Revocable
Living Trust UAD April 20, 1999, and Toni D. Starkey, Trustee of the Starkey Family
Revocable Living Trust UAD April 20, 1999, filed a Motion to Dismiss on August 19,
2010.
{¶15} Plaintiff-Appellee dismissed these Defendants from the suit without
prejudice on August 30, 2010.
{¶16} On September 9, 2010, Plaintiff-Appellee filed a Memorandum in
Opposition to Defendants-Appellants’ Amendment to Answer Filing for Dismissal and
Motion for Summary Judgment.
Fairfield County, Case No. 2011 CA 31 4
{¶17} On September 10, 2010, Plaintiff-Appellee filed the Affidavit of Dan E.
Starkey in support of summary judgment.
{¶18} On September 29, 2010, Defendants-Appellants filed their Memorandum
Contra to Plaintiffs’ Motion for Summary Judgment, Combined with Defendant's Richard
and Helen Wolfe's Motion for Summary Judgment and Re-Placement of Amendment to
Our Request for Dismissal of this Case.
{¶19} On October 6, 2010, Plaintiff-Appellee filed a memorandum in opposition
to Defendants-Appellants’ September 29, 2010, filing.
{¶20} Defendants-Appellants filed two "Friend of the Court" letters on October
12-13, 2010.
{¶21} On November 8, 2010, Plaintiff-Appellee responded. That same day
Defendants-Appellants filed a Request for Dismissal or Summary Judgment or Jury
Trial with Exhibits.
{¶22} On December 1, 2010, Defendants-Appellants filed another Request for
Reversal of Summary Judgment and Grant Summary Judgment to Defendants Wolfe.
{¶23} On December 7, 2010, Defendants-Appellants filed their Answer to
Plaintiffs' Response and Plaintiff's Final Judgment.
{¶24} On December 8, 2010, Plaintiff-Appellee filed a Response to the
December 1, 2010 motion.
{¶25} On December 21, 2010, the trial court entered an order denying
Defendants-Appellants’ Request for Reversal and a Final Judgment Entry granting relief
to Plaintiff-Appellee and finding no just cause for delay.
Fairfield County, Case No. 2011 CA 31 5
{¶26} On December 23, 2010, Defendants-Appellants filed an Answer to the trial
court’s December 21, 2010, Judgment Entry.
{¶27} On January 19, 2011, Defendants-Appellants filed a Motion for Leave to
File Amended Answer with Counterclaim and Cross-Claim and Memorandum in Support
and a Motion for Reconsideration of their Supplemental Memorandum Contra to
Plaintiff-Appellee’s Motion for Summary Judgment.
{¶28} Defendants-Appellants did not file an appeal from the December 21, 2010,
Final Judgment Entry.
{¶29} On February 7, 2011, Defendants-Appellants filed a Supplemental
Memorandum for Reconsideration.
{¶30} On February 8, 2011, Plaintiff-Appellee filed a Combined Memorandum
Contra to Appellants Wolfe’s Motion for Reconsideration, Supplemental Memorandum
Contra Plaintiff’s Motion for Summary Judgment and Motion for Leave to File Amended
Answer with Counterclaim and Cross-claim and Motion to Strike.
{¶31} On February 18, 2011, the trial court filed an Order denying the Motion for
Reconsideration and Motion for Leave to File Amended Answer with Counterclaim and
Cross-claim and denying Plaintiff-Appellee's Motion to Strike.
{¶32} On March 7, 2011, William Joseph Casey executed a Quit-Claim Deed to
Defendants-Appellants. That deed was recorded on March 17, 2011.
{¶33} On March 30, 2011, Defendants-Appellants Wolfe filed their Motion for
Relief from Judgment under Civ.R. 60(B)(4) and (5), arguing that they now held title to
the subject property, and therefore equitable relief from judgment was appropriate for
having a "legal" interest in the property and for making improvements to the property.
Fairfield County, Case No. 2011 CA 31 6
Attached to their motion was a Quit-Claim Deed signed by William Joseph Casey to the
Wolfes for the subject property.
{¶34} On April 14, 2011, Plaintiff-Appellee filed a Memorandum in Opposition to
Defendants-Appellants’ Motion for Relief from Judgment.
{¶35} On May 23, 2011, the trial court filed an Order denying Defendants-
Appellants’ Motion for Relief from Judgment.
{¶36} Appellants now appeal the May 23, 2011, Order, raising the following error
for review:
ASSIGNMENT OF ERROR
{¶37} “I. THE COURT ERRED IN DENYING DEFENDANTS’ MOTION FOR
RELIEF FROM JUDGMENT AND FAILING TO SCHEDULE AN EVIDENTIARY
HEARING.”
I.
{¶38} In their sole assignment of error Appellants contend the trial court erred in
denying their motion for relief from judgment. We disagree.
{¶39} Appellants in this case failed to file a direct appeal from the trial court’s
December 21, 2010, final judgment entry in this matter. Instead, Appellants filed a
motion for relief from judgment. Appellants then appealed the trial court's May 23, 2011,
judgment entry denying their motion for relief from judgment.
{¶40} 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, 174, 637
N.E.2d 914. An abuse of discretion is more than an error of judgment; it means that the
Fairfield County, Case No. 2011 CA 31 7
trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. 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, 621, 614 N.E.2d 748. When
applying the abuse of discretion standard, this Court may not substitute its judgment for
that of the trial court. Id.
{¶41} Therefore, the only issue before this Court is whether the trial court
abused its discretion in denying Appellant's motion for relief from judgment under the
dictates of Civ.R. 60(B).
{¶42} Civ.R. 60(B) states, in relevant part:
{¶43} “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.”
Fairfield County, Case No. 2011 CA 31 8
{¶44} To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving
party must demonstrate that:
{¶45} “(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, 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 Elec., Inc. v. ARC
Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the
syllabus.
{¶46} Generally, the moving party's failure to satisfy any of the three
requirements will result in the motion being overruled. Rose Chevrolet, Inc. v. Adams
(1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564.
{¶47} In the instant case, Appellants argue that they were entitled to relief
pursuant to Civ.R. 60(B)(4) and/or (5). Upon review, however, this Court finds the
reasons offered by Appellants fail to justify relief from the trial court's judgment.
{¶48} Civ.R. 60(B)(4) “was designed to provide relief to those who have been
prospectively subjected to circumstances which they had no opportunity to foresee or
control.” Knapp v. Knapp (1986), 24 Ohio St.3d 141, 146, 493 N.E.2d 1353.
{¶49} Civ.R. 60(B)(5) permits relief from judgment for “any other reason
justifying relief from the judgment.” Civ.R. 60(B)(5) is intended as a catch-all provision
reflecting the inherent power of a court to relieve a person from the unjust operation of a
judgment, but it is not to be used as a substitute for any of the more specific provisions
of Civ.R. 60(B). Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 448 N.E.2d
Fairfield County, Case No. 2011 CA 31 9
1365, paragraphs one and two of the syllabus. “Relief on this ground is to be granted
only in extraordinary situations, where the interests of justice call for it.” Salem v. Salem
(1988), 61 Ohio App.3d 243, 245-246, 572 N.E.2d 726. Appellants have not produced
any “extraordinary circumstances” in this case to warrant the use of Civ.R. 60(B)(5).
{¶50} Appellants in their brief have failed to allege operative facts to suggest that
they were entitled to relief under either 60(B)(4) or (5).
{¶51} Instead, Appellants raise arguments that go beyond a decision under
Civ.R. 60(B). Specifically, Appellants raise arguments concerning the trial court's
December 21, 2010, decision.
{¶52} Appellants attempt to assign error to Appellee’s failure to produce the
original mortgage or provide an explanation as to how such was lost. Appellants also
argue that Appellee failed to submit affidavits in support of their motion for summary
judgment. These arguments should have been raised on direct appeal.
{¶53} It is well settled that Civ.R. 60(B) “is not available as a substitute for a
timely appeal * * * nor can the rule be used to circumvent or extend the time
requirements for an appeal.” Blasco v. Mislik (1982), 69 Ohio St.2d 684, 686, 433
N.E.2d 612.
{¶54} Appellants further attempt to argue that their acquisition of a quit-claim
deed from William Joseph Casey subsequent to the final decision in this case somehow
creates a meritorious defense under Civ.R. 60(B). We disagree. In Ohio, the doctrine
of lis pendens is codified under R.C. 2703.26, which provides:
Fairfield County, Case No. 2011 CA 31 10
{¶55} “When a complaint is filed, the action is pending so as to charge third
persons with notice of its pendency. While pending, no interest can be acquired by third
persons in the subject of the action, as against the plaintiff's title.”
{¶56} Here, as stated by the trial court, Appellants acquired their interest in the
subject property from William Casey after Appellee's interest had been determined by
the Judgment Entry filed on December 21, 2010 but before the Sheriff's Sale of the
property took place. Thus, Appellants took only the interest that William Casey had in
the property. Further, the quit-claim deed acquired by Appellants from William Casey
gave them Casey's interest in the property which was subject to the Judgment Entry
filed on December 21, 2010.
{¶57} Appellant also argue that they were entitled to a hearing on their Civ.R.
60(B) motion.
{¶58} The Ohio Supreme Court has held that a trial court should hold a hearing
on a movant's motion for relief from judgment where the movant has alleged operative
facts warranting relief under Civ.R. 60(B). Kay v. Marc Glassman, Inc. (1996), 76 Ohio
St.3d 18, 19, 665 N.E.2d 1102. The motion and supporting documents, if any, must
contain operative facts which demonstrate the timeliness of the motion, the reasons for
seeking relief, and the movant's defense. Adomeit v. Baltimore (1974), 39 Ohio App.2d
97, 316 N.E.2d 469, paragraph two of the syllabus.
{¶59} “If the material submitted by the movant in support of a motion for relief
from judgment under Civil Rule 60(B) contains no operative facts or meager and limited
facts and conclusions of law, it will not be an abuse of discretion for the trial court to
overrule the motion and refuse to grant a hearing.” Id. at paragraph four of the syllabus.
Fairfield County, Case No. 2011 CA 31 11
{¶60} Before the trial court must schedule a hearing on a motion for relief from
judgment, “the movant must do more than make bare allegations that he or she is
entitled to relief.” Kay, 76 Ohio St.3d at 20, 665 N.E.2d 1102, citing Rose Chevrolet, 36
Ohio St.3d at 20, 520 N.E.2d 564. Appellants argued that they were entitled to relief
from judgment pursuant to 60(B)(4 and 5). Upon review of the record, we cannot find
that the trial court abused its discretion by denying Appellants’ Civ.R. 60(B) motion.
{¶61} However, an evidentiary hearing is not required where the motion and
attached evidentiary material do not contain allegations of operative facts that would
warrant relief under Civ.R. 60(B). BancOhio Natl. Bank v. Schiesswohl (1988), 51 Ohio
App.3d 130, 554 N.E.2d 1362.
{¶62} In this matter, we find that Appellants failed to put forth any evidence or
allege any operative facts that would warrant relief under Civ.R. 60(B)(4) or (5).
{¶63} Appellants’ sole assignment of error is overruled.
{¶64} For the reasons stated in the foregoing opinion, the judgment off the Court
of Common Pleas, Fairfield County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
___________________________________
___________________________________
___________________________________
JUDGES
JWW/d 1208
Fairfield County, Case No. 2011 CA 31 12
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE BANK OF NEW YORK MELLON :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
WILLIAM JOSEPH CASEY, et al. :
:
Defendants-Appellants : Case No. 2011 CA 31
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.
Costs assessed to Appellant.
___________________________________
___________________________________
___________________________________
JUDGES