[Cite as Citimortgage, Inc. v. Buttermore, 2012-Ohio-5351.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

CITIMORTGAGE, INC.                                            JUDGES:
                                                              Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                                    Hon. William B. Hoffman, J.
                                                              Hon. John W. Wise, J.
-vs-
                                                              Case No. 2012CA00004 and
DAVID M. BUTTERMORE                                           Case No. 2012CA00071

        Defendant-Appellant                                   OPINION




CHARACTER OF PROCEEDING:                               Appeal from the Stark County Court of
                                                       Common Pleas Court, Case No.
                                                       2009CV3948


JUDGMENT:                                              Case No. 2012CA00004 - Dismissed
                                                       Case No. 2012CA00071 - Affirmed



DATE OF JUDGMENT ENTRY:                                November 13, 2012


APPEARANCES:


For Plaintiff-Appellee                                 For Defendant-Appellant


MATTHEW J. RICHARDSON                                  BRUCE M. BROYLES
MANLEY DEAS KOCHALSKI LLC                              The Law Office of Bruce M. Broyles
P.O. Box 165028                                        5815 Market Street, Suite 2
Columbus, OH 43216-5028                                Boardman, OH 44512
Stark County, Case No. 2012CA00004 & 2012CA00071                                            2

Hoffman, J.


         {¶1}   Defendant-appellant David M. Buttermore (“Buttermore”) in Case No.

2012CA0004 appeal the November 7, 2011 Judgment Entry entered by the Stark

County Court of Common Pleas, denying his motion to vacate the default judgment

entered against him on March 12, 2010. In Case No. 2012CA00071, Appellant appeals

the March 15, 2012 Judgment Entry filed by the same court, denying his motion for

relief from that same default judgment.             Plaintiff-appellee in both appeals is

Citimortgage, Inc. (“Citi”).

                                    STATEMENT OF THE CASE1

         {¶2}   On October 13, 2009, Citi filed a complaint for foreclosure against

Buttermore. The trial court assigned the case for trial to commence November 24,

2009.

         {¶3}   On November 19, 2009, Citi moved to continue the trial. That same day,

the trial court filed a Judgment Entry stating, “The Court has been advised that the

within matter has been settled. This matter shall be marked as settled on the Court

docket. The parties shall file a complete judgment entry allocating court costs and all

other matters within thirty (30) days of the date of this Entry.”

         {¶4}   The trial court’s docket reflected “Judgment Entry - matter settled and

dismissed entry to follow.” No further entries reflecting the “settlement” were filed.

         {¶5}   On March 11, 2010, Citi filed a motion for default judgment. On March 12,

2010, the trial court granted the motion.          That same day, Citi filed a notice of

assignment of mortgage, followed by the final judicial report on March 16, 2010.

1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Stark County, Case No. 2012CA00004 & 2012CA00071                                        3


      {¶6}   On November 7, 2011, Buttermore filed a motion to vacate the March 12,

2010 default judgment. Citi filed a memorandum in opposition. On December 9, 2011,

the trial court filed a Judgment Entry denying Buttermore’s motion to vacate.

Buttermore appealed that decision, which has been assigned Case No. 2012CA00004.

      {¶7}   After Buttermore’s November 7, 2011 Motion to Vacate but before the trial

court’s entry denying the same. Buttermore filed a motion for relief from the March 12,

2010 default judgment on November 14, 2011.          Pursuant to the motion, this Court

granted a limited remand of the case to the trial court to rule on Buttermore’s motion for

relief from judgment. The trial court denied that motion via Judgment Entry filed March

15, 2012.    Buttermore appealed that entry, which has been assigned Case No.

2012CA00071.

      {¶8}   In Case No. 2012CA00004, Buttermore assigns as error:

      {¶9}   “I. THE TRIAL COURT ERRED IN DENYING THE MOTION TO VACATE

THE NOVEMBER 19, 2009 DEFAULT ENTRY.”

      {¶10} Buttermore argues the trial court lacked jurisdiction to grant Citi’s motion

for default judgment because its November 19, 2009 Judgment Entry dismissed the

case. Buttermore claims the trial court wrongly determined the case remained open.

However, the trial court’s December 9, 2011 Judgment entry makes no specific mention

regarding the status of the case and denies the motion because Buttermore’s failure to

timely file a responsive pleading to the complaint was not the result of “excusable

neglect.” Implicit in the trial court’s decision is the determination the November 19,

2009 Judgment Entry did not terminate the case.
Stark County, Case No. 2012CA00004 & 2012CA00071                                           4


       {¶11} As he did in the motion to vacate, Buttermore argues in his brief to this

Court the November 19, 2009 Judgment Entry terminated or dismissed the case,

therefore the trial court had no jurisdiction to subsequently grant Citi’s motion for default

judgment.

       {¶12} We need not address the merits of this argument at this juncture as we

find it is barred by the legal doctrine of res judciata.        Buttermore’s argument as

presented herein could have been raised on direct appeal of the trial court’s Judgment

Entry and Decree in Foreclosure filed March 12, 2010. It is established that a motion to

vacate cannot be used as a substitute for a direct appeal. Key v. Mitchell, 81 Ohio

St.3d 89, 1998-Ohio-643; Bobardier Capital, Inc. v. W.W. Cycles, Inc. 155 Ohio App. 3d

484, 2003-Ohio-6716.

       {¶13} As a result, we dismiss Buttermore’s appeal in Case No. 2012CA00004.

       {¶14} In Case No. 2012CA00071, Buttermore assigns as error:

       {¶15} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

THE MOTION FOR RELIEF FROM JUDGMENT BASED SOLELY UPON THE FACT

THAT THE DISMISSAL ENTRY WAS NOT SELF-EXECUTING AND THAT THE TRIAL

COURT MAINTAINED JURISDICTION TO ENTER THE DEFAULT JUDGMENT.”

       {¶16} Similar to the argument he presented in his earlier motion to vacate,

Buttermore reasserts the trial court’s March 12, 2010 Judgment Entry was void for lack

of jurisdiction because the case had been dismissed. In his November 14, 2011 Motion

for Relief, Buttermore argued default judgment was granted “…more than three months

after the Court filed an entry that the case had been settled and dismissed.             On
Stark County, Case No. 2012CA00004 & 2012CA00071                                         5


November 19, 2009, the Court filed an entry stating ‘Matter Settled and Dismissed

Entry to Follow.’” (emphasis added.).

       {¶17} Our review of the November 19, 2009 Judgment Entry reveals the trial

court did not indicate the case was dismissed. We agree with the trial court, the entry

was clearly not self-executing as it specifically directed the parties to file a complete

judgment entry. We agree with the trial court it maintained jurisdiction to enter default

judgment against Buttermore.2

       {¶18} Having previously determined Buttermore’s argument the trial court lacked

jurisdiction to grant default judgment is barred by res judicata, Buttermore, nevertheless,

asserts the same circumstances “…should at least constitute grounds justifying relief

under Civil Rule 60(B)(5)”.      November 14, 2011 Motion for Relief from Default

Judgment.

       {¶19} While couched under Civ.R. 60(B)(5), (the general manifest injustice

prong), we find Buttermore’s motion actually raises a claim under Civ.R. 60(B)(1), the

excusable neglect prong.      Civ.R. 60(B)(5) is not a substitute for the enumerated

grounds for relief from judgment, including Civ.R. (60)(B)(1) and its provisions for

vacating judgments on the basis of excusable neglect. Maggiore v. Barensfeld, 2012-

Ohio-2909.3    Motions for relief under Civ.R. 60(B)(5) should be granted “only in

extraordinary and unusual cases when the interest of justice warrant it.” Adomeit v.

Baltimore (1974), 39 Ohio App.2d 97.

2
  To the extent Buttermore argues the clerk’s docket entry effectuated a dismissal, we
reject such argument because it is established a court speaks through its journal
entries, not through its docket sheet. Bennett v. Cardarelli. (Sept. 14, 1994) Summit
App. No. 16685; 1994 WL 518353.
3
  Considered as a Civ.R. 60(B)(1) motion, Buttermore’s motion was untimely per the
rule.
Stark County, Case No. 2012CA00004 & 2012CA00071                                  6


      {¶20} We find the trial court did not abuse its discretion when it overruled

Buttermore’s motion for relief from judgment.

      {¶21} Buttermore’s sole assignment of error is overruled.

      {¶22} The judgment of the trial court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ John W. Wise _____________________
                                            HON. JOHN W. WISE
             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


CITIMORTGAGE, INC.                          :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :          JUDGMENT ENTRY
                                            :
DAVID M. BUTTERMORE                         :
                                            :
       Defendant-Appellant                  :          Case No. 2012CA00004


       For the reason set forth in this Court’s accompanying Opinion, this appeal is

ordered dismissed. Costs to Appellant.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ John W. Wise _____________________
                                            HON. JOHN W. WISE
             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


CITIMORTGAGE, INC.                          :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
DAVID M. BUTTERMORE                         :
                                            :
       Defendant-Appellant                  :         Case No. 2012CA00071


       For the reason set forth in this Court’s accompanying Opinion, the judgment of

the Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ John W. Wise _____________________
                                            HON. JOHN W. WISE
