[Cite as Fifth Third Mtge. Co. v. Fantine, 2011-Ohio-4968.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



FIFTH THIRD MORTGAGE COMPANY                                  JUDGES:
                                                              Hon. John W. Wise, P. J.
        Plaintiff-Appellee                                    Hon. Julie A. Edwards, J.
                                                              Hon. Patricia A. Delaney, J.
-vs-
                                                              Case No. 11 CA 20
JEFFREY FANTINE

        Defendant-Appellant                                   OPINION




CHARACTER OF PROCEEDING:                               Civil Appeal from the Court of Common
                                                       Pleas, Case No. 2010 CV 01343


JUDGMENT:                                              Affirmed



DATE OF JUDGMENT ENTRY:                                September 26, 2011



APPEARANCES:

For Plaintiff-Appellee                                 For Defendant-Appellant

ERIC T. DEIGHTON                                       CLINT WHITE
CARLISLE, MCNELLIE, RINI,                              115 North Center Street
KRAMER AND ULRICH                                      Pickerington, Ohio 43147
24755 Chagrin Boulevard, Suite 200
Beachwood, Ohio 44122
Fairfield County, Case No. 11 CA 20                                                    2

Wise, P. J.

       {¶1}   Defendant-Appellant Jeffrey Fantine appeals the denial of his motion for

relief from default judgment in a foreclosure action in the Court of Common Pleas,

Fairfield County, brought by Plaintiff-Appellee Fifth Third Mortgage Company. The

relevant facts leading to this appeal are as follows.

       {¶2}   On or about May 13, 2005, appellant signed a promissory note and

mortgage regarding a residential property at 123 Behrens Court in Lancaster, Ohio.

Appellant thereafter purportedly experienced an extended period of unemployment,

which was eventually resolved when appellant obtained a new job in Maine. Although

appellant moved out of Ohio, his mother continued to live at the Behrens Court address.

       {¶3}   On October 27, 2010, Appellee Fifth Third filed a foreclosure complaint

against appellant in the Fairfield County Court of Common Pleas, seeking a principal

balance of $71,053.32 plus interest at the rate of 6.625% per annum from July 1, 2010,

plus late charges. Appellee requested service of the complaint both at the Lancaster,

Ohio address and appellant’s Hallowell, Maine address.

       {¶4}   On November 29, 2010, appellant filed a written motion with the trial court

seeking additional time to answer or respond to the foreclosure complaint. Although the

trial court allowed appellant additional time (until January 28, 2011), appellant did not

answer or otherwise respond in court to the complaint.

       {¶5}   On February 3, 2011, appellee filed a motion for default judgment, serving

a copy of same upon appellant at his Hallowell, Maine address.

       {¶6}   On February 14, 2011, the trial court granted default judgment in favor of

appellee.
Fairfield County, Case No. 11 CA 20                                                     3


       {¶7}    On March 25, 2011, as further discussed infra, appellant filed a motion for

relief from judgment, citing Civ.R. 60(B).

       {¶8}    On April 4, 2011, the trial court denied appellant’s motion for relief from

judgment.

       {¶9}    Appellant filed a notice of appeal on April 6, 2011. He herein raises the

three Assignments of Error:

       {¶10} “I. THE TRIAL COURT ERRED IN DENYING 60(B) RELIEF TO THE

APPELLANT         WHERE       THE     APPELLANT        PROPERLY       DEMONSTRATED

MERITORIOUS CLAIMS AND DEFENSES.

       {¶11} “II. THE TRIAL COURT ERRED IN DENYING 60(B) RELIEF TO THE

APPELLANT WHERE THE APPELLANT PROPERLY DEMONSTRATED EXCUSABLE

NEGLECT.

       {¶12} “III. THE TRIAL COURT ERRED IN DENYING 60(B) RELIEF TO THE

APPELLANT WHERE THE APPELLANT PROPERLY DEMONSTRATED ‘OTHER

REASONS JUSTIFYING RELIEF.’ “

                                             I.

       {¶13} In his First Assignment of Error, appellant contends the trial court erred in

denying his motion for relief from the default foreclosure judgment under Civ.R. 60(B).

We disagree.

       {¶14} Civ.R. 60(B) states in pertinent part as follows:

       {¶15} “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
Fairfield County, Case No. 11 CA 20                                                      4


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. * * *.”

       {¶16} Civ.R. 60(B) represents an attempt to strike a proper balance between the

conflicting principles that litigation must be brought to an end and justice should be

done. Colley v. Bazell (1980), 64 Ohio St.2d 243, 248, 416 N.E.2d 605 (citation

omitted). A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound

discretion of the trial court and a ruling will not be disturbed absent an abuse of

discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. In order to

find an abuse of discretion, we must determine that the trial court's decision was

unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. The Ohio

Supreme Court has held: “ * * *[T]he trial court abuses its discretion in denying a [Civ.R.

60(B)] hearing where grounds for relief from judgment are sufficiently alleged and are

supported with evidence which would warrant relief from judgment.” Kay v. Marc

Glassman, Inc., 76 Ohio St.3d 18, 19, 1996-Ohio-430, citing Adomeit v. Baltimore

(1974), 39 Ohio App.2d 97, 105.
Fairfield County, Case No. 11 CA 20                                                      5


       {¶17} In order to prevail on a motion brought pursuant to Civ.R. 60(B), “ * * * the

movant must demonstrate 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 proceedings was entered or taken.” Argo Plastic

Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 391, 474 N.E.2d 328, citing GTE

Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113,

paragraph two of the syllabus. If any prong of this requirement is not satisfied, relief

shall be denied. Argo at 391, 474 N.E.2d 328.

       {¶18} Appellant first maintains that he has a meritorious defense to the default

judgment of February 14, 2011 where the trial court failed to duly conduct a hearing on

Appellee Fifth Third’s default motion pursuant to Civ.R. 55(A). This Court has indeed

recognized that “ * * * if a party or his or her representative has appeared as a matter of

record in any manner, the notice and hearing required by Civ.R. 55(A) must be given to

that party before default judgment may be granted.” Lawrence v. Primetime

Agrimarketing Network, Inc., Muskingum App.No. 2007-0051, 2008-Ohio-2552, f.n. 1,

citing Meglan, Meglan & Co., Ltd. v. Bostic, Franklin App.No. 05AP-831, 2006-Ohio-

2270, ¶ 13. Furthermore, where a defendant in a civil action has filed a notice of

appearance and a motion for leave to file an answer prior to the entry of default

judgment, the defendant has made an “appearance” for purposes of Civ.R. 55(A). See

Rennicker v. Jackson, Tuscarawas App.No. 2003AP090076. 2004-Ohio-3051, ¶ 13.
Fairfield County, Case No. 11 CA 20                                                       6


       {¶19} Nevertheless, it is well-established that a party may not use a Civ.R. 60(B)

motion as a substitute for a timely appeal. See Doe v. Trumbull Cty. Children Services

Bd. (1986), 28 Ohio St.3d 128, 502 N.E.2d 605, paragraph two of the syllabus. In the

case sub judice, we find appellant was improperly seeking to utilize Civ.R. 60(B) to

challenge an alleged error in the trial court’s granting of a default judgment without a

Civ.R. 55(A) hearing, even though such alleged error was clearly appealable upon the

issuance of the default judgment on February 14, 2011. We thus find appellant has

failed to demonstrate that he has a meritorious defense or claim to present if relief is

granted. Argo, supra.

       {¶20} Appellant secondly maintains that because Appellee Fifth Third was

purportedly discussing with him possible options to deal with his failure to make the

mortgage payments, he will be able to set forth a defense of promissory estoppel

against the foreclosure. The first element necessary to establish a claim for promissory

estoppel is “a promise clear and unambiguous in its terms.” See Schepflin v. Sprint-

United Telephone of Ohio (April 29, 1997), Richland App.No. 96-CA-62-2, citing Stull v.

Combustion Engineering, Inc. (1991), 72 Ohio App.3d 553, 557, 595 N.E.2d 504. The

evidence upon which appellant relies in this regard is his affidavit filed in support of his

60(B) motion. However, while appellant therein averred that he discussed with appellee

various alternatives to foreclosure and an eventual sheriff’s sale of the property,

appellant does not indicate that appellee made any specific oral promises to delay or

forbear in the foreclosure process. Thus, upon review, we find no abuse of discretion in

the trial court’s rejection of appellant’s claim of a meritorious defense of promissory

estoppel for purposes of a motion for relief from judgment.
Fairfield County, Case No. 11 CA 20                                                      7


       {¶21} Appellant’s First Assignment of Error is overruled.

                                            II.

       {¶22} In his Second Assignment of Error, appellant contends the trial court erred

in denying his motion for relief from the default foreclosure judgment on the basis of

“excusable neglect” under Civ.R. 60(B)(1). We disagree.

       {¶23} What constitutes “excusable neglect” depends on the facts and

circumstances of each case. See State v. Yount, 175 Ohio App.3d 733, 889 N.E. 2d

162, 2008-Ohio-1155, ¶ 11. “While unusual or special circumstances can justify neglect,

if a party could have controlled or guarded against the happening or event he later

seeks to excuse, the neglect is not excusable.” National City Bank v. Kessler, Franklin

App. No. 03AP-312, 2003-Ohio-6938, ¶ 14. Furthermore, the experience and

understanding of a layperson defendant with respect to litigation matters is a relevant

consideration but not a decisive one. Katko v. Modic (1993), 85 Ohio App.3d 834, 838,

621N.E.2d 809.

       {¶24} Appellant contends that his inaction in answering the foreclosure

complaint or in responding to appellee’s motion for default judgment was excusable

neglect because of his travelling to care for his mother, because he was never provided

with a Civ.R. 55(A) hearing, and because he reasonably relied on appellee negotiating a

post-foreclosure settlement. However, in light of our previous analysis herein, and upon

review of the record, we are unable to classify the trial court’s denial of 60(B)(1) relief

based on excusable neglect as unreasonable, arbitrary, or unconscionable. Cf., also,

University of Akron v. Mangan, Summit App.No. 24167, 2008-Ohio-4844 (finding no

abuse of discretion in trial court’s conclusion that property owners’ mistaken belief, as
Fairfield County, Case No. 11 CA 20                                                      8


pro se litigants, that they were not required to answer the complaint did not amount to

excusable neglect.)

       {¶25} Appellant’s Second Assignment of Error is therefore overruled.

                                             III.

       {¶26} In his Third Assignment of Error, appellant argues the trial court erred in

denying his motion for relief from the default foreclosure judgment under Civ.R.

60(B)(5). We disagree.

       {¶27} Civ.R. 60(B)(5) operates as a “catch-all” provision and reflects the inherent

power of a court to relieve a person from the unjust operation of a judgment. Dutton v.

Potroos, Stark App.No. 2010 CA 00318, 2011-Ohio-3646, ¶ 49 (internal citations and

quotations omitted). This section of the rule is reserved for “extraordinary and unusual

case[s].” Id., citing Myers v. Myers, Summit App.No. 22393, 2005–Ohio–3800, ¶ 14.

       {¶28} In his motion for relief from judgment, appellant urged that his relocation to

Maine, his responsibility in caring for his disabled, elderly mother, and the use of the

subject property as his mother’s residence justified relief under Civ.R. 60(B)(5).

However, the trial court, in its review and ultimate denial of the motion to vacate,

specifically weighed these circumstances, and we are unable to find that the court’s

decision in this regard rose to the level of an abuse of discretion.
Fairfield County, Case No. 11 CA 20                                                 9


      {¶29} Appellant’s Third Assignment of Error is therefore overruled.

      {¶30} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Fairfield County, Ohio, is affirmed.


By: Wise, P. J.

Edwards, J., concurs.

Delaney, J., dissents.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 0811
Fairfield County, Case No. 11 CA 20                                                         10

Delaney, J., dissenting

       {¶31} I respectfully dissent from the majority opinion.

       {¶32} I would reverse the trial court’s denial of Appellant’s Civ.R. 60(B) motion

based upon the holding of Plant Equipment v. Nationwide Control Service, Inc., 155

Ohio App.3d 46, 2003-Ohio-5395, 798 N.E.2d 1202, which instructs that Civ. R. 55(A)

requires a hearing and that an appearing defendant be given notice of the date of the

hearing that will impose liability upon that defendant; and that the failure of the trial court

to comply with Civ.R. 55(A) renders the default judgment void and thus a nullity, which

may be collaterally attacked at any time, and the party attacking the judgment need not

meet the requirements of Civ.R. 60(B).

       {¶33} I would therefore sustain Appellant’s First Assignment of Error, reverse the

trial court’s judgment and remand the case for further proceedings.




                                           HON. PATRICIA A. DELANEY
Fairfield County, Case No. 11 CA 20                                             11


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




FIFTH THIRD MORTGAGE COMPANY               :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
JEFFREY FANTINE                            :
                                           :
       Defendant-Appellant                 :         Case No. 11 CA 20




       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
