Downey v. 610 Morrison Road, L.L.C., 2008 Ohio 3524 (Ohio App. 7/15/2008)

• Decision Date: 15 July 2008
• Docket Number: No. 07AP-903.,07AP-903.
• Citation: 2008 Ohio 3524
• Parties: David J. Downey, Plaintiff-Appellee, v. 610 Morrison Road, LLC et al., Defendants-Appellants.
• Court: Ohio Court of Appeals

Page 1

2008 Ohio 3524

David J. Downey, Plaintiff-Appellee, v. 610 Morrison Road, LLC et al., Defendants-Appellants.

No. 07AP-903.

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on July 15, 2008.

APPEAL from the Franklin County Municipal Court, M.C. No. 2007 CVG 040013.

Smith Law, Ltd., and Karen K. Fuller-Smith, for appellee.

Strip, Hoppers, Leithart, McGrath & Terlecky Co., LPA, A.C. Strip, Kenneth R. Goldberg and Rachel L. Steinlage, for appellants.

OPINION

PETREE, J.

{¶1} Defendant-appellant, 610 Morrison Road, LLC ("defendant") appeals from a judgment of the Franklin County Municipal Court denying defendant's motion for relief from judgment. For the following reasons, we affirm the judgment of the municipal court.

{¶2} By complaint filed on August 29, 2007, plaintiff-appellee, David J. Downey ("plaintiff'), sued 610 Morrison Road, LLC, and all other occupants of 610 Morrison Road, Gahanna, Ohio ("the premises"). In his complaint, plaintiff alleged, among other things, that defendant was in breach and default of a land installment contract; defendant owed no less than $5,371.98 to plaintiff; a notice of forfeiture was delivered to defendant and other occupants of 610 Morrison Road, Gahanna, Ohio; and defendant and other occupants were unlawfully and forcibly detaining plaintiff's possession of the premises. In addition to seeking possession of the premises, plaintiff sought monetary damages. After plaintiff's complaint was filed, a trial was scheduled for September 19, 2007.

{¶3} Defendant's agent, however, failed to appear for trial. Finding, among other things, that notice to vacate the premises conformed to R.C. 1923.04; that notice was properly served; and that plaintiff proved by a preponderance of the evidence allegations in his complaint, a magistrate rendered judgment in favor of plaintiff. On September 20, 2007, adopting the magistrate's decision, the municipal court issued a default judgment in favor of plaintiff for restitution of the premises and court costs.

{¶4} Claiming that it was not properly served with plaintiff's complaint, on October 2, 2007, defendant moved for relief from judgment pursuant to Civ.R. 60(B), and that same day defendant also sought a stay of execution of the municipal court's default judgment. The municipal court stayed execution of its default judgment pending resolution of defendant's Civ.R. 60(B) motion.

{¶5} Without holding an evidentiary hearing, the municipal court denied defendant's Civ.R. 60(B) motion and ultimately denied defendant's motion for stay of execution of the judgment of eviction. In its judgment, the municipal court stated:

This matter comes before the Court upon Defendant's Motion for Stay of Execution of Judgment filed October 2, 2007. After due consideration of the matters contained therein, the Court hereby denies said motion. Further, the Court finds proper service of process was perfected and denies defendant's 60(B) motion for relief from judgment. The Court hereby directs the Municipal Court Clerk to serve upon all parties notice of this judgment and its date of entry upon the journal.

(Entry filed Oct. 23, 2007.)

{¶6} From the municipal court's judgment of October 23, 2007, defendant now appeals and assigns six errors for our consideration:

I. ASSIGNMENT OF ERROR NO. 1: The lower court erred in finding that service of process was properly completed upon Defendant-Appellant.

II. ASSIGNMENT OF ERROR NO. 2: The lower court erred in failing to hold a hearing on Appellant's Motion for Relief from Judgment pursuant to Rule 60(b) [sic] of the Ohio Rules of Civil Procedure.

III. ASSIGNMENT OF ERROR NO. 3: The lower court erred in allowing Plaintiff-Appellee to use eviction procedures to terminate Defendant-Appellant's rights in the real estate.

IV. ASSIGNMENT OF ERROR NO. 4: The lower court erred in failing to consider whether Plaintiff-Appellee was required to utilize foreclosure procedures, as required by Ohio Revised Code §5313.07, due to Defendant-Appellant's substantial equity in the real estate.

V. ASSIGNMENT OF ERROR NO. 5: The lower court erred in failing to address the conflict between Rule 4.2 of the Ohio Rules of Civil Procedure and Ohio Revised Code §1923.04(D)(2)(b) [sic] and §1705.06(H)(1).

VI. ASSIGNMENT OF ERROR NO. 6: The lower court erred in granting judgment in favor of Plaintiff-Appellee without requiring Plaintiff-Appellee to provide evidence that the requirements of the eviction statute were satisfied.

{¶7} Defendant's six assignments of error devolve into these issues: (1) whether the municipal court should have applied foreclosure procedures or eviction procedures to the instant action (defendant's third and fourth assignments of error); (2) whether the municipal court erred by finding that service of process was perfected (defendant's first and fifth assignments of error); (3) whether the municipal court prejudicially erred by failing to hold a hearing concerning defendant's Civ.R. 60(B) motion (defendant's second assignment of error); and (4) assuming that the municipal court should have applied eviction procedures, whether the municipal court erred by failing to require plaintiff to show that he met requirements of the eviction statute (defendant's sixth assignment of error).

{¶8} "[I]t is well settled that a judgment denying a motion for relief from judgment filed pursuant to Civ.R. 60(B) is itself a final appealable order." Colley v. Bazell (1980), 64 Ohio St.2d 243, 245, citing Greenspahn v. Joseph E. Seagram & Sons, Inc. (C.A. 2, 1951), 186 F.2d 616; Russell v. Cunningham (C.A. 9, 1960), 279 F.2d 797; 7 Moore's Federal Practice (2d Ed.), 430, Section 60.30(3); McCormac, Ohio Civil Rules Practice (1980 Supp.), 101, Section 13-27.

{¶9} Civ.R. 55(B) provides that a court may set aside a default judgment in accordance with Civ.R. 60(B). "Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits." GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, at paragraph three of the syllabus.

{¶10} "`A claim under Civ.R. 60(B) requires the court to carefully consider the two conflicting principles of finality and perfection.' " Cuyahoga Support Enforcement Agency v. Guthrie (1999), 84 Ohio St.3d 437, 441, quoting Strack v. Pelton (1994), 70 Ohio St.3d 172, 175. "A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound discretion of the trial court, and that court's ruling will not be disturbed on appeal absent a showing of abuse of discretion." Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. When applying an abuse-of-discretion standard, an appellate court may not substitute its judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169; Stockdale v. Baba, 153 Ohio App.3d 712, 2003-Ohio-4366, at ¶54, citing Berk, at 169; State v. Congrove, Franklin App. No. 06AP-1129, 2007-Ohio-3323, at ¶9.

{¶11} "`"The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable."`" State v. Smith, Franklin App. No. 03AP-1157, 2004-Ohio-4786, at ¶10, quoting Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157. An unreasonable decision is one that is unsupported by a sound reasoning process. AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161; see, also, Dayton ex rel. Scandrick v. McGee (1981), 67 Ohio St.2d 356, 359, citing Black's Law Dictionary (5 Ed.) (observing that "`[u]nreasonable' means `irrational' "); Congrove, at ¶9. An arbitrary attitude, on the other hand, is an attitude that is " `without adequate determining principle * * * not governed by any fixed rules or standard.' " Scandrick, at 359, quoting Black's Law Dictionary (5 Ed.); see, also, Congrove, at ¶9. "Unconscionable" may be defined as "affronting the sense of justice, decency, or reasonableness." Black's Law Dictionary (8 Ed.2004) 1561.

{¶12} "[T]o prevail on a Civ.R. 60(B) motion for relief from judgment, the movant must establish 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 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.' " State ex rel. Richard v. Seidner (1996), 76 Ohio St.3d 149, 151, quoting GTE Automatic Elec., Inc., at paragraph two of the syllabus. Relief under Civ.R. 60(B) "is improper if any one of the foregoing requirements is not satisfied." Richard, at 151, citing Strack v. Pelton (1994), 70 Ohio St.3d 172, 174. See, also, In re McLoughlin v. McLoughlin, Franklin App. No. 05AP-621, 2006-Ohio-1530, at ¶23, appeal not allowed, 110 Ohio St.3d 1465, 2006-Ohio-4288. See, generally, Civ.R. 60(B).

{¶13} Defendant's third and fourth assignments of error raise the issue of whether the municipal court should have applied foreclosure procedures or eviction procedures to the instant action.

{¶14} "Foreclosure" may be defined as "[a] legal proceeding to terminate a mortgagor's interest in property, instituted by the lender (the mortgagee) either to gain title or to force a sale in order to satisfy the unpaid debt secured by the property." Black's Law Dictionary (8 Ed.2004) 674.

{¶15} Comparatively, "forcible entry and detainer" may be defined as "[a] quick and simple legal proceeding for regaining possession of real property from someone who has wrongfully taken, or refused to surrender, possession." Id. "`Forcible entry and detainer is a remedy given by statute for the recovery of possession...