{¶ 27} The issue that this appeal presents is whether the trial court abused its discretion when it denied defendant-appellant Primal Resources' motion for Civ.R. 60(B) relief. I agree that no abuse of discretion is shown, but for reasons different from those on which the majority relies, which are essentially the same reasons the trial court applied.
{¶ 28} "To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate 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 *Page 560 stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds for 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." GTEAutomatic Elec., Inc. v. ARC Industries, Inc. (1976),47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, paragraph two of the syllabus.
{¶ 29} In support of its motion, Primal Resources argued that the judgment in foreclosure the court had entered in favor of ABN-AMRO and against Lisa Jackson should be vacated because, per R.C. 5301.23(A), ABN-AMRO's unrecorded mortgage was subordinate to the interests in the property Primal Resources acquired through Jackson subsequent to the judgment and that the lis pendens provisions of R.C. 2703.26 could not deny Primal Resources the preference over ABN-AMRO to which it was entitled because the pleadings in ABN-AMRO's complaint in foreclosure were insufficient to provide Primal Resources the notice lis pendens requires. Primal Resources did not identify the particular grounds for relief in Civ.R. 60(B)(1) through (5) on which its motion relied.
{¶ 30} The trial court reasoned that the motion for relief implicated the grounds for relief in Civ.R. 60(B)(5): "any other reason justifying relief from the judgment." However, Civ.R. 60(B)(5) "applies only when a more specific provision does not apply." Strack v. Pelton (1994), 70 Ohio St.3d 172, 174,637 N.E.2d 914. On the facts alleged, one of the other provisions for relief in Civ.R. 60(B) applies to Primal Resources' particular claim: that "it is no longer equitable that the judgment should have prospective application." Civ.R. 60(B)(4). Relief on that ground is especially applicable to circumstances in which, as here, a claim is made that prospective application of a judgment would be inequitable due to events subsequent to that judgment.Wurzelbacher v. Kroeger (1974), 40 Ohio St.2d 90, 69 O.O.2d 440, 320 N.E.2d 666.
{¶ 31} That R.C. 5301.23(A) confers a preference or priority on the rights that Primal Resources acquired as against ABN-AMRO's unrecorded mortgage demonstrates that Primal Resources has a meritorious claim or defense to present if Civ.R. 60(B) relief is granted, as GTE v. ARC requires. However, that assertion of a right in law does not in and of itself satisfy the other substantive showing also required by GTE v. ARC, that one of the particular grounds for relief in Civ.R. 60(B) applies. That ground is, in this instance and per Civ.R. 60(B)(4), that it is no longer equitable that ABN-AMRO's judgment in foreclosure should have prospective application.1
{¶ 32} Primal Resources attempts to avoid the requirement by arguing that the doctrine of lis pendens as codified by R.C.2703.26 is insufficient to overcome the *Page 561 preference conferred on its claim by R.C. 5301.26(A). The doctrine of lis pendens is a procedural device that is grounded in equitable considerations, its purpose being to protect the status quo of the litigants' interest in property while an action is pending. Katz v. Banning (1992), 84 Ohio App.3d 543,617 N.E.2d 729. The doctrine grants no substantive right, however. Id. As it is now codified by R.C. 2703.26, and because of that, the trial court held, and the majority herein agrees, that lis pendens operates in this circumstance to create an exception to the mortgage-recording provisions of R.C. 5301.23(A). That presents two difficulties, in my view.
{¶ 33} First, the application that the trial court gave R.C.2703.26, the lis pendens section, creates an exception to R.C.5301.23(A), the mortgage-recording section of the Revised Code. That offends the requirement of R.C. 1.51, which is that if a conflict between two sections of the Revised Code exists, "the special or local provision prevails as an exception to the general provision." Because R.C. 5301.23(A) is the more specific of the two, it necessarily prevails over R.C. 2703.26, unless, as we have held, a clear intent is expressed in the legislation that the general provision should prevail. Lynch v. Dean WitterReynolds, Inc. (1999), 134 Ohio App.3d 668, 731 N.E.2d 1205. No such intent is manifest in either R.C. 2703.26 or 5301.23(A). Therefore, the trial court erred when it applied the two so as to find an exception to R.C. 5301.23(A) because of the conflict with R.C. 2703.26.
{¶ 34} Second, Primal Resources' lis pendens contention does no more than bolster its claim that, because of R.C. 5301.23(A), Primal Resources has a meritorious claim or defense to present if ABN-AMRO's foreclosure judgment is vacated. Even if lis pendens could make ABN-AMRO's mortgage ineffective as against Primal Resources' interests in the property, that fact does not portray the further equitable grounds for the relief it seeks that Civ.R. 60(B)(4) requires Primal Resources to demonstrate. Primal Resources must allege reasons why it is no longer equitable thatABN-AMRO's foreclosure judgment should be given prospective effect against Primal Resources' rights and interests. And though R.C. 5301.23(A) applies irrespective of a purchaser's actual notice of an unrecorded mortgage, Civ.R. 60(B)(4) encompasses independent equitable considerations. Reasonably, in this circumstance they require a movant such as Primal Resources to show that it is a bona fide purchaser for value without notice of the prior, unrecorded mortgage. The requirement has been applied with respect to unrecorded deeds pursuant to R.C. 5301.25. SeeTiller v. Hinton (1985), 19 Ohio St.3d 66, 19 OBR 63,482 N.E.2d 946.
{¶ 35} The Civ.R. 60(B) motion that Primal Resources filed does not allege that Primal Resources was a bona fide purchaser for value without notice. It merely alleges that ABN-AMRO's mortgage was unrecorded, and that Primal Resources *Page 562 acquired its interests in the property after ABN-AMRO had acquired its interest. That may be sufficient to set up Primal Resources' claim in law, but it is insufficient, in and of itself, to establish the equitable grounds for relief in Civ.R. 60(B)(4), or in any of the other paragraphs of that rule. Therefore, on the test imposed by GTE v. ARC, the Civ.R. 60(B) motion that Primal Resources filed was insufficient on its face, and the trial court did not abuse its discretion when the court overruled the motion.
1 For the same reason, neither would the assertion satisfy Civ.R. 60(B)(5), on which the trial court relied.