[Cite as GEICO Indemn. Ins. Co. v. August, 2021-Ohio-2118.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
GEICO Indemnity Ins. Co., et al., :
Plaintiffs-Appellants, : No. 20AP-232
(M.C. No. 2016CVE-4264)
v. :
(REGULAR CALENDAR)
Daniel C. August, :
Defendant-Appellee. :
D E C I S I O N
Rendered on June 24, 2021
On brief: Kreiner & Peters, Co. LPA, for appellants.
Argued: Daran P. Kreiner.
APPEAL from the Franklin County Municipal Court
BEATTY BLUNT, J.
{¶ 1} Plaintiffs-appellants, GEICO Indemnity Insurance Company ("GEICO")
and Tenisha Ballard Rubbins ("Rubbins") (collectively "appellants") appeal from the
March 24, 2020 judgment of the Franklin County Municipal Court granting appellee's
motion to set aside judgment filed on February 19, 2020 pursuant to Civ.R. 60(B). For
the following reasons, we reverse.
I. Facts and Procedural History
{¶ 2} On February 9, 2016, appellants filed in the trial court a complaint asserting
that appellee was liable for $14,419.70 in damages stemming from an auto accident
allegedly caused by appellee on July 28, 2014. (Feb. 9, 2016 Compl.) Summons was
issued on February 29, 2016 but was returned as "unclaimed" on March 28, 2016. On
April 14, 2016, service of summons was reissued by the trial court via "regular U.S. Mail."
That summons was not returned, and no answer was filed by appellee. Thereafter, on
No. 20AP-232 2
May 26, 2016, appellants filed a motion for default judgment, which was granted by the
trial court on May 31, 2016 and which entered judgment in favor of appellants in the
amount of $14,419.70 plus three percent interest and costs. (May 31, 2016 Entry Granting
Default Jgmt.)
{¶ 3} Almost four years later, on February 19, 2020, appellee filed a letter with
the court wherein he sought to vacate the previously rendered judgment by default.
According to appellee's letter, he was not the person driving the vehicle which was at fault
in the July 28, 2014 auto accident. Instead, the driver was a Mr. Keith Clardy, who was
the boyfriend of appellee at the time of the accident. In support of his motion to vacate
judgment appellee included the affidavit of Mr. Clardy, in which Mr. Clardy attests that
he was indeed the driver of the vehicle involved in the accident. See Clardy Aff. Mr. Clardy
further attests that rather than giving his own name and social security number to the
police officer who arrived on the scene and prepared the accident report, he instead
provided the name and social security number of appellee. Id. Although appellee provided
the affidavit of Mr. Clardy, the record shows appellee did not submit his own affidavit.
{¶ 4} Initially, the trial court refused to consider appellee's motion to vacate
judgment on the basis that it did not contain a certificate of service indicating service of
the motion upon counsel for appellants. (Feb. 26, 2020 Entry.) However, the trial court
later issued an entry advising it would consider the motion to vacate judgment. (Mar. 9,
2020 Entry.) On March 23, 2020, appellants' memorandum in opposition to the motion
to vacate judgment was filed.
{¶ 5} On March 24, 2020, without holding a hearing, the trial court issued an
entry granting the motion to vacate judgment. (Mar. 24, 2020 Entry.) The entry states
in full as follows:
This matter came before the court on Defendant's Post-
Judgment Motion filed February 26, 2020. This Motion is
granted and the Default Judgment entered on May 31, 2016 is
hereby set aside. Plaintiff is to perfect service on appropriate
Defendant within 30 days from the date of this entry. Upon
filing of Complaint and Answer, case will be set for PT.
The above order does not constitute a final, appealable order
within the meaning of Civ.R. 54(A).
No. 20AP-232 3
{¶ 6} This timely appeal followed.
II. Assignments of Error
{¶ 7} Appellants assign four errors for our review:
[1.] The Trial Court committed reversable error by not
conducting an evidentiary hearing prior to granting the
"Motion to Set Aside Judgment" as it prevented Appellants
from having the opportunity to cross-examine the party and
other witnesses.
[2.] The Trial Court committed reversable error by not having
any actual testimony under oath to rebut proper service from
Defendant August as he only stated such assertion in his brief
which is not "testimony" an/or under oath.
[3.] The Trial Court committed reversable error by not making
any finding or even following the test established by the Ohio
Supreme Court in the GTE Automatic Electric, Inc. v. ARC
Industries Inc., 47 Ohio St.2d 146 (1976) to show that
Appellee/Defendant August actually produced evidence of the
three elements.
[4.] The Trial Court committed reversable error by granting the
"Motion to Set Aside Judgment" which was filed nearly four
years after the default judgment was entered when the
Defendant was raising issues under Civil Rule 60(B)(1) through
(3).
(Sic passim.)
III. Discussion
A. Appellants' Third and Fourth Assignments of Error
{¶ 8} We begin our discussion with appellants' third and fourth assignments of
error because we find them dispositive of this matter, and because they are interrelated, we
address them together. In their third assignment of error, appellants assert that the trial
court erred by granting the motion of appellee to set side judgment without making any
findings pursuant to the test established by the Supreme Court of Ohio in GTE Automatic
Electric, Inc. v. ARC Industries Inc., 47 Ohio St.2d 146 (1976). In their fourth assignment
of error, appellants contend that the trial court erred in granting the motion because it was
filed more than one year after the default judgment was entered. We agree on both counts.
No. 20AP-232 4
{¶ 9} When reviewing a trial court's decision to grant or deny a motion for relief
from judgment under Civ.R. 60(B), we apply an abuse of discretion standard. Wiltz v.
Accountancy Bd. of Ohio, 10th Dist. No. 16AP-169, 2016-Ohio-8345, ¶ 35. An abuse of
discretion occurs when a court's judgment is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). "A trial court's discretion under
Civ.R. 60(B) is quite broad." Haynes v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
05AP-78, 2005-Ohio-5099, ¶ 7, citing Pittsburgh Press Co. v. Cabinetpak Kitchens of
Columbus, Inc., 16 Ohio App.3d 167, 168 (10th Dist.1984). Our role is to determine
whether the trial court abused its discretion, not whether we might have reached a
different result. Id., citing Wilmington Steel Prod., Inc. v. Cleveland Elec. Illum. Co., 60
Ohio St.3d 120, 122 (1991).
{¶ 10} In order to prevail on a motion for relief from judgment under Civ.R. 60(B),
a party must establish each of the following three requirements: "(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., paragraph two of the syllabus.
{¶ 11} Under the second requirement, Civ.R. 60(B) requires a party set forth one
of the following reasons to support the request for relief from judgment: (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 Civ.R.
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.
Civ.R.60(B). "A movant's failure to identify which subsection of Civ.R. 60(B) he is
invoking may alone be fatal to a motion for relief from judgment, as the second prong of
the GTE test has not been satisfied." Haynes at ¶ 11, citing Mattingly v. Deveaux, 10th
No. 20AP-232 5
Dist. No. 03AP-793, 2004-Ohio-2506, ¶ 9; Cent. Ohio Sheet Metal, Inc. v. Walker, 10th
Dist. No. 03AP-951, 2004-Ohio-2816, ¶ 13. " 'Neither a responding party nor a trial court
can be expected to divine the specific grounds under which a movant seeks relief.' " Id.,
quoting Mattingly at ¶ 9.
{¶ 12} Furthermore, a party who files a Civ.R. 60(B) motion for relief from
judgment is not automatically entitled to a hearing on the motion. Davis v. Davis, 10th
Dist. No. 15AP-1078, 2016-Ohio-7790, ¶ 13, citing Kay v. Marc Glassman, Inc., 76 Ohio
St.3d 18, 19 (1996). " '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.' " U.S. Bank Natl. Assn. v. Lewis,
10th Dist. No. 18AP-550, 2019-Ohio-3014, ¶ 28, quoting Adomeit v. Baltimore, 39 Ohio
App.2d 97 (8th dist.1974), paragraph four of the syllabus.
{¶ 13} "[I]n order to prevail on a motion for Civ.R. 60(B) relief, 'the movant must
establish [the requirements of GTE] by operative facts presented in a form that meets
evidentiary standards such as affidavits, depositions, transcripts of evidence, written
stipulations or other evidence given under oath.' " Fields Excavating, Inc. v. Welsh Elec.
Co., 10th Dist. No. 04AP-150, 2005-Ohio-708, ¶ 8, quoting Countrywide Home Loans v.
Barclay, 10th Dist. No. 04AP-171, 2004-Ohio-6359, ¶ 9, citing E. Ohio Gas Co. v. Walker,
59 Ohio App.2d 216, 220 (8th Dist.1978). "Therefore, 'unsworn allegations of operative
facts contained in a motion for relief from judgment filed under Civ.R. 60(B) or in a brief
attached to the motion are not sufficient evidence upon which to grant a motion to vacate
judgment.' " Id., quoting Coleman v. Cleveland School District Bd. of Edn., 8th Dist. No.
84274, 2004-Ohio-5854, ¶ 76, citing E. Ohio Gas Co.
{¶ 14} Turning to the matter at hand, as an initial matter, we point out that
although the trial court's entry granting the motion to vacate the default judgment states
it is not a final, appealable order, this is incorrect. An entry granting a motion to set aside
a default judgment is indeed a final, appealable order. GTE Automatic Elec., Inc.,
paragraph one of the syllabus; see also R.C. 2505.02(B)(3), which provides that an order
is final when it "vacates or sets aside a judgment or grants a new trial."
No. 20AP-232 6
{¶ 15} Next, in this case, appellee did not submit a sworn affidavit attesting that he
was never served with the complaint. The authority set forth above makes clear that
" 'unsworn allegations of operative facts contained in a motion for relief from judgment
filed under Civ.R. 60(B) or in a brief attached to the motion are not sufficient evidence
upon which to grant a motion to vacate judgment.' " Fields Excavating, Inc., at ¶ 8, quoting
Coleman, at ¶ 76, citing E. Ohio Gas Co. Because appellee failed to submit an affidavit
attesting that he was not properly served in support of his motion to set aside judgment,
the motion was premised merely on his unsworn allegations, and the trial court improperly
relied upon such insufficient evidence in granting the motion and abused its discretion in
doing so. We further observe that the trial court's entry fails to set forth any of the findings
as required by the test established by GTE Automatic Electric, Inc. as discussed
above. This also constitutes error on the part of the trial court.
{¶ 16} Lastly, we find that because appellee's motion is premised upon "new
evidence" and/or "mistake," he is in essence asserting relief under Civ.R. 60(B)(1),(2)
and/or (3). Therefore, his motion—which was filed almost four years after the judgment—
is untimely per se, and the trial court abused its discretion in granting the motion for this
reason as well. Civ.R. 60(B) GTE Automatic Elec., Inc., paragraph two of the syllabus.
{¶ 17} In short, the trial court abused its discretion and erred in granting the motion
of appellee to set aside judgment because it was not supported by any proper evidence and
because it was filed almost four years after the entry of default was issued. Accordingly,
appellants' third and fourth assignments of error are sustained.
B. Appellants' First and Second Assignments of Error
{¶ 18} We have already found that the trial court erred in granting appellee's
motion to set aside judgment. Accordingly, appellants' first and second assignments of
error are rendered moot.
IV. Disposition
{¶ 19} For the foregoing reasons, the trial court erred in granting the motion of
appellee to set aside judgment. Having sustained appellants' third and fourth assignments
of error, and having found appellants' first and second assignments of error moot, we
reverse the judgment of the Franklin County Municipal Court and remand this matter to
No. 20AP-232 7
that court with instructions to reinstate the May 31, 2016 entry of default judgment granted
in favor of appellants.
Judgment reversed and
remanded with instructions.
KLATT and MENTEL, J.J., concur.