[Cite as Tankersley v. Scales, 2014-Ohio-4964.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

JAMES L. TANKERSLEY, et al.                             :

        Plaintiffs-Appellees                            :            C.A. CASE NO.   26299

v.                                                      :            T.C. NO.   12CV4593

ERNEST SCALES, SR., et al.                              :            (Civil appeal from
                                                                      Common Pleas Court)
        Defendants-Appellants                           :

                                                        :

                                              ..........

                                            OPINION

                         Rendered on the          7th       day of        November         , 2014.

                                              ..........

CURTIS F. SLATON, Atty. Reg. No.0034587, 131 N. Ludlow Street, Suite 1200, Dayton,
Ohio 45402
      Attorney for Plaintiffs-Appellees

WORRELL A. REID, Atty. Reg. No. 0059620, 6718 Loop Road, #2, Centerville, Ohio
45459
      Attorney for Defendants-Appellants

                                              ..........
                                                                                           2



DONOVAN, J.

       {¶ 1}    This matter is before the Court on the Notice of Appeal of Ernest Scales,

Mary Scales, Derrick Scales, and Delayne Scales (“the Scales”), filed June 6, 2014. The

Scales appeal from the June 3, 2014 decision of the trial court denying their motion for

Civ.R. 60(B)(1) relief from judgment.        On May 10, 2013, the Magistrate granted the

unopposed joint motion for summary judgment of James Tankersley and Jackie Lynn

Bloom, and no objections were filed. The trial court adopted the Magistrate’s decision on

September 16, 2013, the Scales did not appeal, and they filed the Civ.R. 60(B) motion on

April 30, 2014. We hereby affirm the judgment of the trial court.

       {¶ 2}    On June 21, 2012, Tankersley and Bloom filed their Complaint against the

Scales, alleging that they own property located at 317 Superior Avenue, that Ernest and

Mary Scales own property located at 311 Superior Avenue, and that Derrick and Delayne

Scales reside there. The complaint alleges that the property is adjoining, and that beginning

“in 2006 there has been a dispute between [Tankersley, Bloom, and the Scales] as to the

location of the property line that separates the real estate parcels * * *.” According to the

complaint, Tankersley and Bloom “hired registered surveyors in 2006 and again in 2012 to

survey the property line and on numerous occasions since * * * have showed [the Scales] the

results of the survey clearly indicating that [Scales] have been trespassing continuously on

the property owned by [Tankersley and Bloom].” The complaint demands that the Scales

“cease and desist trespassing on their property, in particular[:]

               • occupying property owned by [Tankersley and Bloom] and impeding
                                                                                         3

       their use of the property by locating numerous dangerous dogs on

       [Tankersley’s and Bloom’s] property and denying them the access to remove

       the existing fence[.]

               • locating dangerous dogs in such a manner as to allow them access

       beyond the fence boundaries, and providing direct access routes for the dogs

       to enter [Tankersley’s and Bloom’s] property[.]

               • performing landscaping and maintenance activities on [Tankersley’s

       and Bloom’s] property over [Tankersley’s and Bloom’s] objection[.]

               • [e]recting a dog kennel on [Tankersley’s and Bloom’s] property[.]

               • [c]ausing damage to [Tankersley’s and Bloom’s] property by

       digging holes to place dog kennel poles and bury soiled bedding, hay and dog

       urine and feces[.]”

Tankersley and Bloom sought damages for trespass, attorney fees, and an order that Scales

refrain from future trespass.

       {¶ 3}    On August 13, 2012, the Scales filed an Answer asserting the following

defenses: 1) Tankersley and Bloom failed to state a claim for which relief can be granted;

2) The complaint is time-barred; 3) Tankersley and Bloom lack sufficient authority to bring

the action; 4) Tankersley’s and Bloom’s claims are barred by the doctrine of assumption of

risk; 5) Tankersley’s and Bloom’s claims are barred by the doctrine of respondeat superior;

6) Tankersley’s and Bloom’s claims are barred by the doctrine of laches and estoppel; 7)

Tankersley’s and Bloom’s claims are barred by the doctrine of accord and satisfaction; and

8) Tankersley’s and Bloom’s claims are fictitious and falsely brought.
                                                                                            4

       {¶ 4}    On September 25, 2012, after a pretrial scheduling conference, the court

established deadline dates for trial preparation. On January 8, 2013, Tankersley and Bloom

filed a motion for continuance, asserting that the Scales refused to comply with Tankersley’s

and Bloom’s requests for depositions. On January 14, 2013, the court issued a final pretrial

order extending the deadline dates.      On January 15, 2013, the court issued an order

requiring the Scales “to appear for deposition, duly noticed and with reasonable notice, on or

before February 22, 2013, else they will be prohibited from presenting any and all evidence

in this matter’s future proceedings which may lead to the entry of final judgment against

them on [Tankersley’s and Bloom’s] claims.”

       {¶ 5}    On April 4, 2013, counsel for the Scales filed a motion to withdraw,

asserting that irreconcilable differences with them “due to a disagreement as to how [the

Scales’] defense should be conducted.”    On the same date Tankersley and Bloom requested

an extension of time to file their motion for summary judgment, asserting as follows:

               There is no genuine issue in this case regarding whether and to what

       extent [the Scales] have trespassed on the land owned by [Tankersley and

       Bloom]. After years of denying that [the Scales’] fence was located on

       [Tankersley’s and Bloom’s] land, [the Scales] commissioned a surveyor to

       survey their property, and discovered that their fence is indeed located on

       [Tankersley’s and Bloom’s] land.

               As a consequence, [Tankersley and Bloom] prepared an Agreed

       Judgment Entry for [the Scales’] signature and forwarded the same to [the

       Scales’] counsel on March 15, 2013, explaining that because summary
                                                                                       5

       judgment motions were due on March 29th, that his clients opportunity to

       execute the same would close on March 22, 2013. * * * The Agreed

       Judgment Entry contained a provision awarding attorney[’]s fees to

       [Tankersley and Bloom]. On the deadline date of March 22, 2013, [the

       Scales’] counsel wrote that his clients wanted supporting documentation for

       the attorney[’]s fees requested. * * * [Tankersley’s and Bloom’s] counsel

       delivered the same that afternoon. * * *

              ***

              [The Scales] refused to accept the Agreed Judgment Entry because of

       the attorney[’]s fees provision.     On March 26, 2013, [Tankersley’s and

       Bloom’s] counsel revised the Agreed Judgment Entry to provide that the

       entry would state only that [the Scales] were liable to [Tankersley and

       Bloom] for the trespass, but that damages would be determined in a separate

       proceeding, and transmitted the same to [the Scales’] counsel the same day. *

       **

              On April 3, 2013, at 4:45 p.m., [the Scales’] counsel notified

       [Tankersley’s and Bloom’s] counsel that his clients would not sign the

       proposed Agreed Judgment Entry.* * *.

The motion concluded that, given the delay caused by the Scales, counsel for Tankersley

and Bloom was unable to draft a summary judgment motion by the April 12, 2013, deadline

set by the court.    Copies of correspondence between counsel regarding the Agreed

Judgment Entry is attached to the motion.
                                                                                           6

       {¶ 6}     On April 15, 2013, the court granted the motion and extended the deadline

to April 19, 2013. On that date, Tankersley and Bloom filed their motion for summary

judgment.      Attached to the motion is correspondence, dated August 11, 2011, from

Tankersley and Bloom to Ernest Scales regarding Tankersely’s and Bloom’s intent to

remove a fence separating the properties, to prune and remove trees, and to erect a privacy

fence. Tankersley and Bloom requested that Ernest and Mary Scales sign an attached

proposed agreement “to facilitate the actions of contractors hired to perform service work at

317 Superior Avenue, * * *.” Also attached to the motion for summary judgment is the

affidavit of John P. Haley, a registered surveyor, which provides that the attached boundary

survey indicates that “the fence between the properties is located on the Tankersley

Property.” Also attached to the motion for summary judgment is the affidavit of Curtis

Slaton, counsel for Tankersley and Bloom. Finally, attached to the motion is Derrick

Scales’ deposition. We note that at the conclusion of the deposition, counsel for the Scales

confirmed that Delayne, Ernest, and Mary Scales would not appear for their scheduled

depositions.

       {¶ 7}     On May 10, 2013, the trial court granted Tankersley’s and Bloom’s motion.

The court determined in part that the Scales are liable to Tankersley and Bloom for

“continuous trespass” beginning September 1, 2006, and that Tankersley and Bloom proved

by clear and convincing evidence that the Scales’ conduct “in connection with the trespass

evidences actual malice, entitling [Tankersley and Bloom] to an award of punitive damages

and attorneys fees.” The court indicated that the amount of damages and attorney fees

would be determined at a subsequent hearing. The court ordered that the Scales “shall
                                                                                             7

control all of their dogs in accordance with all applicable laws generally, and specifically to

allow [Tankersley and Bloom] to safely use their property * * * .”

       {¶ 8}    A damages hearing was scheduled for August 2, 2013. On July 24, 2013,

the Scales filed notarized correspondence dated February 1, 2013, that provides:

       To Whom It May Concern:

       This letter is (written) appointing Derrick Scales Sr. as Executive Executioner for

       Civil matters concerning 311 Superior Ave. Property.

The correspondence is signed by Ernest and Mary Scales.

       {¶ 9}    On August 2, 2013, the court referred the damages hearing to the Magistrate.

 On August 27, 2013, the Magistrate noted that the Scales denied the allegations in

Tankersley’s and Bloom’s complaint and asserted several affirmative defenses. The

Magistrate’s decision provides that at the damages hearing (a transcript of which is not

before us), James Tankersley testified that a metal fence separates the back yards of the

properties of the parties, and that he “believes that the fence dates back to the 1930s.”

According to the Magistrate, neither family “had any reason to believe that the fence did not

accurately reflect the property lines until 2006, when Mr. Tankersley hired a surveyor. The

2006 survey showed that the fence encroached on the Tankersley property.               Despite

permanent boundary markers placed by the surveyor, the Scales family continued to trespass

on the Tankersley property from 2006 to 2011 and beyond.”              The Magistrate noted

parenthetically as follows:

                (Interestingly, [the Scales] did not assert adverse possession,

       easement by prescription and/or easement by implication [i.e. easement by
                                                                                              8

       necessity] as either an affirmative defense or counterclaim. Having heard the

       testimony and having conducted a cursory review of the case law on these

       potential defenses, it appears that had the defenses been raised and had the

       motion for summary judgment not been granted, the defenses would have

       been arguably viable.)

       {¶ 10} The Magistrate concluded that the Scales were jointly and severally liable

for 1) compensatory damages in the amount of $55.34 for “continuing trespass”; 2) for

attorney fees and costs in the amount of $7,175.20; and 3) for punitive damages in the

amount of $553.40 for “their intentional and malicious continued trespass.” The Magistrate

also determined that “Derrick Scales, Sr. is solely liable for an additional $300.00 in punitive

damages for his trespass upon [Tankersley’s and Bloom’s] property via using a leaf blower

to direct dog feces and other debris onto said property.” On September 16, 2013, the trial

court adopted the Magistrate’s decision.

       {¶ 11} In their Civ.R. 60(B) motion, the Scales asserted as follows:

               * * * In this case, [the Scales] are entitled to relief from judgment

       pursuant to Civ.R. 60(B)(1), as there was a meritorious defense to the trespass

       action, their failure to respond to the Motion for Summary Judgment was

       inadvertent, and excusable, and this motion is being filed with (sic) a

       reasonable time (and within one year from the filing of the judgment). The

       affidavit attached hereto as Exhibit “A” and the admissions made by

       [Tankersley and Bloom] suggest that there were genuine issues of material

       fact and that [Tankersley and Bloom] were not entitled to judgment as a
                                                                                         9

       matter of law. To acquire title by adverse possession the party claiming title

       must exclusive (sic) possession and open, notorious, continuous, and adverse

       use [for] a period (sic) of 21 years. * * * [Tankersley and Bloom] admitted all

       of these elements at the damages hearing.

               Furthermore, [the Scales] did not have sufficient time to obtain

       counsel, such as the undersigned, to represent them in the proceedings. This

       was very unfortunate as the defense for adverse possession was such a clear,

       obvious, and meritorious defense to the action. Neglect is excusable unless

       it can be labeled as a complete disregard for the judicial system. * * * [ The

       Scales] are great fans of the judicial system, but simply did not have time to

       obtain counsel.

               Finally, the Order and Entry Granting Plaintiff’s Motion for Summary

       Judgment was filed on May 10, 2013.          This motion pursuant to Civ.R.

       60(B) is being filed within a reasonable time, and within one year from its

       rendering, as required by Civ.R. 60(B). * * * .

Attached to the motion is the Affidavit of Derrick Scales, which provides in part that

“Affiant and his family have been using a part of [Tankersly’s and Bloom’s] property

openly, notoriously, continuously, and adversely to [the Scales’] interest, for a period in

excess of 21 years.”

       {¶ 12} Tankersley and Bloom responded to the Scales’ motion on May 13, 2014,

asserting that with respect to excusable neglect, Scales “could have simply asked for an

extension of time to respond to the summary judgment motion if their basis for not
                                                                                           10

responding was in order to obtain new counsel. * * * Further, Derrick Scales, the only

defendant who appeared at the damages hearing, stated on the record that he was acting as

the Defendants’ own counsel and they chose not to have an attorney.” According to

Tankersley and Bloom, “[t]his is clear indication that the reason [the Scales] did not respond

to the motion for summary judgment was not because they were seeking an attorney.”

        {¶ 13} With respect to an affirmative defense, Tankersley and Bloom asserted that

adverse possession and/or easement by prescription “would not have been able to be raised

on (sic) a response to the motion for summary judgment as those defenses were not raised in

the answer.” Tankersley and Bloom further asserted that such defenses have no application

to the punitive damages award. Finally, Tankersley and Bloom asserted that the Scales’

motion, although filed within a year of the final judgment, was not filed within a reasonable

time.

        {¶ 14} The Scales filed a reply on May 24, 2014, attached to which is the affidavit

of Derrick Scales, which provides in part as follows:

               ***

               5. The Affiant and his family were surprised at the speed that the

        summary judgment was rendered against them, and that this was due to their

        inadvertence, and excusable neglect.

               6. [Tankersley and Bloom] have filed a [January 16, 2014] Complaint

        for Judicial Sale of Real Estate in Case No. 2014 CV 00296, Copy attached

        hereto as “Exhibit B,” and are using the judgment rendered herein to sell

        Affiant’s home which is unjust.
                                                                                            11

          {¶ 15} On May 29, 2014, Tankersley and Bloom filed a motion to strike the reply as

untimely. On June 3, 2014, the Scales responded to Tankersley’s and Bloom’s motion to

strike.

          {¶ 16} After setting forth the procedural history herein, and the law applicable to

the Scales’ motion for relief from judgment, the court determined initially that “irrespective”

of the Scales’ ability to satisfy the requirements of Civ.R. 60(B), they “* * * would appear

to be precluded from proceeding under that rule by their own their failure to respond to the

summary judgment motion. * * *.” The court further noted that to the extent that the Scales

challenged “the propriety of this Court’s summary judgment decision, such challenges are to

be raised by direct appeal and not via a Civ.R. 60(B) motion. * * *.” The court determined

that the Scales’ “instant motion presumably could be denied on that basis alone.

Nevertheless, mindful of the preference for trying cases on their merits * * *, the Court will

explain its conclusion that [the Scales] also are unable to demonstrate their entitlement to

relief under Civ.R. 60(B)(1).” The court reasoned as follows:

                 a. Meritorious Defense

                 This Court agrees with Magistrate Fuchman’s conclusion that

          evidence presented at the damages hearing suggests that [the Scales] may

          have possessed a viable defense to [Tankersley’s and Bloom’s] trespass

          claims. (See Magistrate’s Decision, p. 3 & p. 5, n.2)(noting that Plaintiff

          Tankersley’s testimony indicating that the disputed fence “has been on the

          property for about 80 years” implicates “the defense of adverse possession

          and/or easement by prescription”). * * * Presumably, then, [Tankersley’s and
                                                                                           12

       Bloom’s] trespass action might have been barred by the apparent lack of

       objection to the subject fence’s placement within 21 years after that fence was

       erected on their property.

               Pursuant to Civ.R. 8(C), however, a party must “set

                       forth affirmatively” any affirmative defenses in

                       its responsive pleadings. Any affirmative

                       defense other than those listed in Civ.R. 12(B)

                       that is not raised by way of a responsive

                       pleading or an amendment thereto is waived. *

                       * *.

       Adverse possession and easement by prescription are not among the defenses that

are specifically exempted from waiver, see Civ.R. 12(B), and also were not raised by

Defendants in their answer. * * * [Tankersley and Bloom] persuasively argue that [the

Scales] effectively waived any adverse possession or easement by prescription defense by

failing to plead it in their answer. * * * Because [the Scales] have not demonstrated the

existence of a meritorious (as distinguished from a potentially viable but waived) defense, as

is required to be eligible for Civ.R. 60(B) relief, their motion should be denied. * * *

               A finding that an affirmative defense has been waived does not

       require a decision on the merits of that defense. Nevertheless, given case

       law suggesting that a movant need only allege, not prove, a meritorious

       defense at this stage, * * * the Court also has considered [the Scales’] ability

       to satisfy the remaining requirements for Civ.R. 60(B)(1) relief.
                                                                                   13

       b. Inadvertence, Surprise or Excusable Neglect

       * * * Having considered the full record in this matter, however, the

Court finds that credible evidence of inadvertence, excusable neglect or

surprise that is legally cognizable for Rule 60(B) purposes is lacking.

       [The Scales] cannot legitimately claim to have been “surprised” by

this Court’s ruling on [Tankersley’s and Bloom’s] motion for summary

judgment in the absence of a timely response from Defendants. Mont. Co.

C.P.R. 2.05(II)(B)(1)(b) plainly states that parties opposing a motion filed in

this Court must file and serve any memorandum in opposition within 14 days

after the motion is served. * * * This Court does not construe “surprise” as

used in Civ.R. 6[0](B)(1) to encompass objectively predictable although

perhaps subjectively unanticipated consequences of one’s own inaction.

       Moreover, the summary judgment decision was issued only three days

before the then-standing date for the bench trial of this case. * * * That trial

date already had been continued once, for three months, due to [the Scales’]

failure to cooperate with [Tankersley’s and Bloom’s] efforts to schedule [the

Scales’] depositions. * * * Had the Court not granted summary judgment on

May 10, [the Scales] would have been expected to present a defense at trial

on May 13. Despite notice of both the pending summary judgment motion

and the pending trial date, [the Scales] never requested either an extension of

time to respond to the summary judgment motion or a continuance of the trial

date, nor did they otherwise notify the Court of any concerns about retaining
                                                                                    14

new counsel. Pro se litigants “are held to the same standard as members of

the bar with respect to procedural matters,” and “must accept the results of

[their] own mistakes and errors.” * * *. [The Scales’] self-serving claim of

astonishment at how quickly this Court granted judgment when they failed to

comply with the applicable procedural rules does not satisfy Civ.R.

60(B)(1)’s “surprise” requirement.

        Neither do a pro se litigant’s oversights constitute excusable neglect.

* * *     Although Derrick Scales claims that he “diligently attempted to

obtain another attorney” after [the Scales’] original attorney withdrew * * *,

the record tends to contradict any suggestion that it was [the Scales’] inability

to secure counsel that resulted in the entry of judgment against them. By the

time [the Scales’] original attorney filed his motion to withdraw on April 4,

2013, [the Scales’] failure to cooperate in discovery already had led to an

extension of the original discovery deadline and trial date; three extensions of

the original dispositive motion deadline; and three [Scales] being barred from

presenting any evidence in their defense. * * *. [The Scales’] own delays thus

placed them at a distinct disadvantage for purposes of opposing summary

judgment, especially with an already re-scheduled trial date looming. [The

Scales’] conduct up to that point in time certainly smacks of the type of

deliberate inaction appropriately labeled “complete disregard for the judicial

system” and not “excusable neglect.” * * *

        Additionally, Defendants Ernest and Mary Scales’ 7/24/13 filing that
                                                                                   15

designated Defendant Derrick Scales their “Executive Executioner” for

purposes of the subject matter here at issue * * * and Derrick Scales[’] pro se

appearance at the 8/2/13 damages hearing * * *          - both devoid of any

mention of an ongoing effort or desire to be represented by counsel - strongly

suggest that [the Scales] at some point voluntarily chose to proceed in this

action without the benefit of professional representation.         Indeed, the

February 1, 2013 date affixed to the notarized “Executive Executioner”

document implies that Defendants Mary and Ernest Scales, at least, had

anticipated acting without counsel well before [Tankersley’s and Bloom’s]

summary judgment motion was filed. * * * This Court expressly rejects [the

Scales’] suggestion that they somehow were denied the opportunity to

respond to [Tankersley’s and Bloom’s] summary judgment request by the

nefarious “careful[] (sic) tim[ing][”] with which that motion was filed. * * *

To the contrary, the timing of [Tankersley’s and Bloom’s] motion was

dictated by [the Scales’] own delaying behavior, which caused [Tankersley

and Bloom] to ask on April 4, 2013 - the same day that [the Scales’] attorney

moved to withdraw - for yet another extension of time in which to move for

summary judgment. * * *. The Court did not rule on [Tankersley’s and

Bloom’s] summary judgment motion until more than a month later, on May

10, 2013, leaving [the Scales] more than adequate time to have their

then-attorney (whose withdrawal was not approved until April 22, 2013)

respond on their behalf; to acquire substitute counsel; to respond pro se, or at
                                                                                 16

least to seek an extension of time in order to attempt to find a new attorney.

[The Scales] did none of the above.

       ***

       c. Reasonable Time

       Finally, the Court finds in the exercise of its discretion that [the

Scales’] motion for relief from judgment was not “made within a reasonable

time,” as also required for Civ.R.60(B) relief.       Although [the Scales]

unquestionably did file within Rule 60(B)’s limited one-year window for

relief under Civ.R. 60(B)(1), meeting that deadline is not dispositive of the

“reasonable time issue.”     Rather, the “reasonable time” provision “is a

separate and distinct requirement within the rule.” [Doyle v. Doyle, 2d Dist.

Greene No. 97 CA 143, 1998 WL 698360, * 3 (Oct. 9, 1998)]. As explained

by the same court in an earlier decision:

               The one year requirement is jurisdictional. A motion

       filed within one year must nevertheless also be filed “within a

       reasonable time.”     Failure to demonstrate that requirement

       mandates the denial of the relief requested.

Morris v. Grubb, [2d Dist. Montgomery No. 15177,1996 WL 132202, * 4

(March 8, 1996)], appeal not allowed, 76 Ohio St.3d 1478, 669 N.E.2d 860 *

* *.

       The appellate court in Morris found that “the trial court abused its

discretion when it granted Civ.R. 60(B) relief” to a plaintiff who filed her
                                                                                  17

Rule 60(B)(1) motion within one year after summary judgment was entered

against her but offered “[n]o specific reason” for the ten month delay between

notice of that judgment entry and her motion for relief. Id. at [* 2, 4].

“[E]ach case must be decided on its own facts,” according to the Second

District, “as a delay of twelve weeks has been held unreasonable while a

delay of four years has been held reasonable.[ * * * ]. ” Gillam v. Johnson,

[2d Dist. Montgomery No. 18379, 2000 WL 1546600, *5 (Oct. 20, 2000)],

and the cases cited therein. On the reasonableness issue, “the movant has the

burden of proof, and [‘]must submit factual material which on its face

demonstrates the timeliness of the motion.[’] * * *.” Michael Benza &

Assoc., Inc. v. Lombardi, [8th Dist. Cuyahoga No. 74418, 1999 WL 35340,

*3 (Jan. 21, 1999)], appeal denied, 96 Ohio St.3d 1492, 2002-Ohio-4534, 774

N.E.2d 765. * * *.

       As in Morris, supra, this Court finds that [the Scales] have failed to

demonstrate that their Rule 60(B)(1) motion was filed within a reasonable

time. Magistrate Fuchman’s August 27, 2013 decision clearly informed [the

Scales] by no later than that date of a possible legal defense to [Tankersley’s

and Bloom’s] trespass action against them. * * * Despite such notice, [the

Scales] waited over eight months - until April 30, 2014 - to file the instant

motion seeking relief from this Court’s May 10, 2013 Order and Entry

Granting Plaintiffs’ Motion for Summary Judgment. Although [the Scales]

now have offered a putative explanation for their failure to respond in
                                                                                 18

opposition to [Tankersley’s and Bloom’s] summary judgment motion * * *,

the lack of a proffered explanation for [the Scales’] delay of at least eight

months in filing this motion suggests that [the Scales] were content to ignore

the judgment against them until [Tankersley and Bloom] initiated efforts to

execute on that unpaid judgment. In fact, the evidence produced by [the

Scales] themselves supports an inference that it was [Tankersley’s and

Bloom’s] execution efforts that finally prompted [the Scales] to retain new

counsel. * * * Such behavior would be consistent with the indifference to

procedural expectations exhibited by [the Scales] throughout this litigation.

Absent any explanation for the eight month gap between Magistrate

Fuchsman alerting [the Scales] to a possible defense and [the Scales] taking

action to seek relief based on that defense, this Court cannot conclude that

[the Scales] acted with the “due diligence” required to deem their motion

filed “within a reasonable time.” See Doyle * * *.

       This Court is keenly aware of the delicate balance between the

competing interests of decisions on the merits versus finality of judgments

that Civ.R. 60(B) implicates. * * * In this instance, however, the Court

concludes that the relative equities weigh heavily in favor of according

finality to the entry of summary judgment in favor of [Tankersley and

Bloom]. The Court further determines that the circumstances here are such

that no hearing is necessary as to [the Scales’] Civ.R. 60(B) motion * * * ,

and [the Scales’] hearing request is therefore denied.
                                                                                            19

               In light of this determination as to [the Scales’] motion, [Tankersley’s

       and Bloom’s] Motion to Strike Defendants’ Reply in Support of 60(B) Motion

       also will be denied as moot.

       {¶ 17} The Scales assert one assignment of error herein as follows:

       “THE TRIAL COURT’S DECISION, ORDER AND ENTRY DENYING

DEFENDANTS’ CIV.R. 60(B) MOTION WAS AN ABUSE OF DISCRETION AND

CONTRARY TO LAW.”

       {¶ 18} The Scales assert that they “were entitled to relief from the judgment

pursuant to Civ.R. 60(B)(1), as there was a meritorious defense to the trespass action

(adverse possession), their failure to respond to the Motion for summary judgment was

inadvertent, and excusable, and the motion was filed within a reasonable time (and within

one year from the filing of the judgment in question).” After noting that the Magistrate and

trial court found that they failed to assert the affirmative defenses of adverse possession,

easement by prescription or by necessity, the Scales assert that in fact “these defenses were

raised.” According to the Scales, asserting that “an action is ‘time barred’ or ‘barred by the

doctrine of Laches and Estoppel’ are other ways of saying that [Tankersley and Bloom] were

unable to recover because of adverse possession. * * *. The Trial Court’s narrow reading of

the defenses presented in the Answer was contrary to the Civ.R. 8(F), and was contrary to

law, and [the Scales] did present meritorious defenses.” The Scales rely upon the affidavit of

Derrick Scales, which they assert “clearly showed that the judgment was rendered as a result

of [the Scales’] excusable neglect, inadvertence, and or surprise, and that the requirements of

Civ.R. 60(B)(1) are met.”
                                                                                          20

       {¶ 19} As the trial court initially noted, “* * * a litigant who fails to respond to a

motion for summary judgment ordinarily may not later litigate the issues that could have

been raised in the motion. * * * . If allowed, such practice would ‘undermine the purposes of

Civil Rules 56 and 60(B)’ and create a ready avenue for delay. * * *.” Harshman Dynasty,

L.L.C. v. Mason, 2d Dist. Montgomery No. 25873, 2014-Ohio-1108, ¶ 18.

       {¶ 20}    As this Court has previously noted:

                In order to prevail on a Civ. R. 60(B) motion, the moving party must

       demonstrate (1) the existence of a meritorious claim or defense; (2)

       entitlement to relief under one of the grounds stated in Civ. R. 60(B)(1)-(5);

       and (3) that the motion was made within a “reasonable time.” [GTE

       Automatic Electric v. ARC Industries, 47 Ohio St.2d 146, 150, 351 N.E.2d

       113 (1976)]. If any of these requirements are not met, the trial court must

       overrule the Civ. R. 60(B) motion. Rose Chevrolet Inc. v. Adams (1988), 36

       Ohio St.3d 17, 20, 520 N.E.2d 564, citing Svoboda v. Brunswick (1983), 6

       Ohio St.3d 348, 351, 453 N.E.2d 648. Although Civ. R. 60(B) is a remedial

       rule requiring liberal construction favoring determination of cases on the

       merits, the rule cannot be used to emasculate procedural rules and time limits.

       Griffey v. Rajan (1987), 33 Ohio St.3d 75, 79, 514 N.E.2d 1122.

                ***

                A party may be entitled to relief from judgment if he demonstrates

       that “excusable neglect” contributed to the adverse judgment. Civ. R.

       60(B)(1). The term “excusable neglect” is an elusive concept which has been
                                                                                            21

       difficult to define and to apply; however, the inaction of a party is not

       “excusable neglect” if it can be labeled as a “complete disregard for the

       judicial system.” Kay v. Glassman (1996), 76 Ohio St.3d 18, 20, 665 N.E.2d

       1102.

Burgess v. Safe Auto, 2d Dist. Montgomery No. 20941, 2005-Ohio-6829, ¶ 23, 25.

       {¶ 21} As this Court has previously noted:

                * * * We review the denial of a Civ.R. 60(B) motion for an abuse of

       discretion. Id. at ¶ 12. An “abuse of discretion” means “an attitude that is

       unreasonable, arbitrary or unconscionable.”Id. “ ‘It is to be expected that

       most instances of abuse of discretion will result in decisions that are simply

       unreasonable, rather than decisions that are unconscionable or arbitrary.’ ”

       Id.,    quoting   AAAA    Enterprises,    Inc.   v.   River   Place   Community

       Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). * * *.

Ray v. Ramada Inn N., 2d Dist. Montgomery No. 25140, 2012-Ohio-6226, ¶ 8.

       {¶ 22}     This Court also noted in Burgess, ¶ 32:

                 * * * [I]t is well settled that a Civ. R. 60(B) motion is not to be used

       as a substitute for direct appeal. State ex rel. Bragg v. Seidner (2001), 92

       Ohio St.3d 87, 87, 748 N.E.2d 532, citing Key v. Mitchell (1998), 81 Ohio

       St.3d 89, 90-91, 689 N.E.2d 548. In fact, this Court has previously held that

       such an argument regarding the propriety of a trial court's summary judgment

       motion has no place in a Civ. R. 60(B) motion. Cockeram v. Seifer (August

       25, 1986), Montgomery App. No. 9814, ¶ 9. The use of Civ. R. 60(B) is
                                                                                           22

       generally reserved to issues that cannot be raised on appeal. Teamsters Local

       Union No. 507 v. Nasco Industries, Inc. (Nov. 22, 2000), Medina App. No.

       3064-M, ¶ 9.

       {¶ 23} Finally, regarding Civ.R. 60(B), “[t]he mere filing of a motion for relief

from judgment * * * does not automatically entitle the movant to a hearing on the motion. *

* *. The movant has the burden of alleging operative facts that demonstrate that he is

entitled to an evidentiary hearing. * * * .” Jones v. Gayhart, 2d Dist. Montgomery No.

21838, 2007-Ohio-3584, ¶ 19.

       {¶ 24} As the trial court noted initially, and as set forth above, the Scales failed to

respond to Tankersley’s and Bloom’s motion for summary judgment, and they were

accordingly precluded from proceeding to address the issues that could have been raised, in

response to the summary judgment motion, pursuant to Civ.R. 60(B).              Further, any

challenge to the propriety of the trial court’s decision on the motion for summary judgment

should have been raised on direct appeal, and as the trial court noted, the Scales’ motion was

subject to prompt denial for the foregoing reasons without further analysis.1

       {¶ 25} While no further inquiry was necessary, the trial court conducted a thorough

analysis of the application of the conjunctive requirements of Civ.R. 60(B) to the Scales’

motion. We conclude, in keeping with the trial court’s analysis, that the Scales waived the

affirmative defense of adverse possession, having failed to assert it in their Answer; “Civ.R.


          1
           This is so even if we were to agree, which we do not, with the Scales’
   assertion that stating “that an action is ‘time barred’ or barred by the doctrine of
   Laches and Estoppel’ are other ways of saying” that Tankersley and Bloom
   “were unable to recover because of adverse possession,” since the Scales failed
   to respond to the motion for summary judgment or appeal therefrom.
                                                                                         23

8(C) requires affirmative defenses to be raised in a responsive pleading, and the failure to

raise an affirmative defense (other than those listed in Civ.R. 12(B)2) in a pleading or an

amendment to a pleading waives that defense. Jim's Steak House, Inc. v. Cleveland, 81 Ohio

St.3d 18, 20, 688 N.E.2d 506 (1998).” RLM Properties, Ltd. v. Brammer, 2d Dist.

Champaign No. 2014CA 6, 2014-Ohio-3509, ¶ 21.

       {¶ 26} Further, the Scales had notice of both the pending summary judgment

motion and the upcoming trial date, and given their oversight in failing to respond to the

motion for summary judgment within the 14 days required by Mont. Co. C.P.R.

2.05(II)(B)(1)(b), and/or in failing to request an extension of time to do so, we cannot

conclude that the Scales were “surprised,” within the meaning of Civ.R. 60(B)(1), that the

court granted summary judgment in favor of Tankersley and Bloom. As this Court has

previously noted:

              Litigants who choose to proceed pro se are presumed to know the law

       and correct procedure, and are held to the same standard as other litigants.

       See, e.g., Kilroy v. B.H. Lakeshore Co. (1996), 111 Ohio App.3d 357, 363,

       676 N.E.2d 171.     As the Eighth District Court of Appeals aptly noted in

       Kilroy, a pro se litigant “cannot expect or demand special treatment from the



          2
           “Every defense, in law or fact, to a claim for relief in any pleading,
  whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted
  in the responsive pleading thereto if one is required, except that the following
  defenses may at the option of the pleader be made by motion: (1) lack of
  jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3)
  improper venue, (4) insufficiency of process, (5) insufficiency of service of
  process, (6) failure to state a claim upon which relief can be granted, (7) failure
  to join a party under Rule 19 or Rule 19.1.” Civ.R. 12(B).
                                                                                            24

       judge, who is to sit as an impartial arbiter.” Id. Yocum v. Means, 2d Dist.

       Darke No. 1576, 2002-Ohio-3803, ¶ 20.

As the trial court noted, “surprise,” as used in Civ.R.60(B)(1), does not circumscribe

“objectively” foreseeable but “subjectively” unexpected outcomes due to one’s failure to act.

       {¶ 27} Any assertion of excusable neglect due to an inability to obtain counsel,

resulting in judgment against them, is belied by the Scales’ refusal to comply with discovery,

resulting in three of them, to their disadvantage, being barred from presenting evidence in

their defense. Such an assertion of excusable neglect is further belied by the July 24, 2013

filing of Ernest and Mary Scales, designating Derrick Scales as their “Executive

Executioner,” in correspondence dated February 1, 2013, as well as by Derrick Scales pro se

appearance at the damages hearing.

       {¶ 28} Finally, as did the trial court, we find that the Scales failed to demonstrate

that their motion for relief from judgment, although filed within a year of the grant of

summary judgment, was filed within a reasonable time; the Magistrate alerted the Scales to

the possible defense of adverse possession in its August 27, 2013 decision, issued after the

damages hearing, the Scales did not file their motion for relief until April 30, 2014, and they

have failed to explain the eight month delay. As the trial court noted, Derrick Scales’

affidavit attached to the Scales’ May 24, 2014 Reply suggests that the efforts of Tankersley

and Bloom to execute on their judgment against them prompted the Scales’ motion for relief.

       {¶ 29}    As noted above, if any of the G.T.E. Automatic Electric requirements are

not met, the trial court must overrule the motion.       Since multiple grounds have been
                                                                                      25

demonstrated upon which to overrule the Scales’ motion for relief from judgment, an abuse

of discretion is not demonstrated.

       {¶ 30} The Scales’ sole assigned error is overruled, and the judgment of the trial

court is affirmed.

                                       ..........

FROELICH, P.J. and FAIN, J., concur.




Copies mailed to:

Curtis F. Slaton
Worrell A. Reid
Hon. Mary L. Wiseman
