[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
