[Cite as MidFirst Bank v. Baker, 2014-Ohio-2206.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

MIDFIRST BANK                                              :

        Plaintiff-Appellee                                 :        C.A. CASE NO.      25925

v.                                                         :        T.C. NO.     13CV3714

JAMES L. BAKER, et al.                                     :            (Civil appeal from
                                                                         Common Pleas Court)
        Defendant-Appellant                                :

                                                           :

                                            ..........

                                           OPINION

                        Rendered on the             23rd       day of         May       , 2014.

                                            ..........

ANGELA D. KIRK, Atty. Reg. No. 0075177, P. O. Box 165028, Columbus, Ohio 43216
    Attorney for Plaintiff-Appellee

JOHN J. SCACCIA, Atty. Reg. No. 0022217, 1814 East Third Street, Dayton, Ohio 45403
     Attorney for Defendant-Appellant

DOUGLAS TROUT, Atty. Reg. No. 0072027, 301 W. Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Montgomery County Treasurer

                                            ..........

DONOVAN, J.
[Cite as MidFirst Bank v. Baker, 2014-Ohio-2206.]
        {¶ 1}    This matter is before the Court on the Notice of Appeal of James L. Baker,

filed September 23, 2013. Baker appeals from the August 22, 2013 “Decision, Order and

Entry Overruling Defendant’s Motion to Vacate and Motion to Stay,” which the trial court

issued after it granted a default judgment and decree in foreclosure in favor of MidFirst Bank

(“MidFirst”). Also before us is the “Motion of Appellee MidFirst Bank to Strike Portions of

Appellant James Baker’s Brief.”

        {¶ 2}    On June 20, 2013, MidFirst filed a complaint in foreclosure against Baker

and other parties, attached to which is a note, an allonge, an open-end mortgage, and

assignments of the mortgage. A Preliminary Judicial Report was filed on June 21, 2013. On

July 30, 2013, MidFirst filed “Plaintiff’s Motion for Default Judgment” and a “Notice of

Filing Final Judicial Report.” On July 31, 2013, the trial court granted default judgment

and issued a “Judgment Entry and Decree in Foreclosure,” from which Baker did not appeal.

 On August 12, 2013, Baker filed a “Motion to Vacate Judgment of Foreclosure, Motion to

Stay Execution of Sheriff’s Sale and Motion for Immediate Hearing.”

        {¶ 3}    In overruling Baker’s motion, after initially noting that Baker was

successfully served with MidFirst’s Complaint on June 25, 2013, the trial court concluded as

follows:

                The Court first notes that the Defendant suggests that the order of

        default judgment was “apparently in error.” The Court further notes that

        counsel for the Defendant inserts himself into the Motion to Vacate and

        expresses that he was “surprised” to learn of the “early default.” The Court

        will make things clear for the Defendant’s counsel. The order of default

        judgment was not an error, or even “apparently” an error, nor was it an
                                                                                     3

    “early” order. Counsel for the Defendant is “apparently” confused because it

    is actually the Defendant and his counsel who were clearly late. After the

    Plaintiff filed a motion for default judgment and after review of the docket,

    the Court found that the Defendant clearly failed to Answer or otherwise

    respond to the Plaintiff’s Complaint.       Counsel for the Defendant is

    “apparently” aware of the Ohio Civil Rules of Procedure and the procedure

    that this Court follows if a defendant fails to file an Answer or otherwise

    respond.   The suggestion by counsel for the Defendant that he was “in the

    process of investigating the matter and [his client’s] defenses” when he found

    that default judgment had been entered is not shown on the docket. Counsel

    for the Defendant should be able to count1 and, therefore, should be able to

   determine when an Answer is required to be filed.            Counsel for the

   Defendant should keep the same in mind so that he is not “surprised” when

   default judgment is ordered.

          With respect to the Motion to Vacate, the Defendant asserts that he

   was “misled, lied to, stolen from, and subject to misrepresentation by the

   Plaintiff.” * * * The Defendant further asserts that “he was assured by loan

   officers that a deed in lieu agreement could be reached” and that the Plaintiff
      1
         We note that in ruling upon Baker’s motion, the trial court went beyond
the merits of the issue before it with several intemperate comments directed at
counsel for Baker, namely the repeated use of “apparently,” the court’s
suggestion that defense counsel is unable to count, and the court’s suggestion
that defense counsel is unfamiliar with the Civil Rules. While we recognize that
even the most patient judge on occasion under certain circumstances may, in
frustration, use such language, we caution against such a retreat from
adjudicative responsibilities and civility.
                                                                                  4

would “work with him to resolve the pending foreclosure.” * * * After the

Defendant received the Complaint, he asserts that he contacted an

administrative customer service specialist to negotiate the deed in lieu. * * *

Counsel for the Defendant asserts that, for these reasons, the Defendant “has

satisfied the second requirement under Civ.R. 60(B).[”]       Counsel for the

Defendant inserts his own surprise of the “early default” and further asserts

that he was “in the process of investigating the matter and [the Defendant’s]

defenses” when he reviewed the docket. * * * Counsel for the Defendant

further asserts that it “appears” that the Defendant “may have” meritorious

defenses, but does not indicate what those defenses may be.

        The Court finds that, in accordance with GTE Automatic, that the

Defendant has not presented any meritorious defenses should this Court grant

relief. Further, the Court finds that the Defendant’s “surprise” that default

judgment was entered does not constitute the type of “surprise” that is listed

under Civ.R. 60(B)(1).    The Court further finds that the Defendant’s mere

assertion that he was misled and lied to does not suffice. The Court notes that

the Defendant’s motion was filed within a reasonable time, however, the first

two elements of the GTE Automatic three-prong test have not been met.

Therefore, the Court OVERRULES the Defendant’s motion to vacate.

Consequently, the Court further OVERRULES the Defendant’s motion to

stay.

{¶ 4}   Baker asserts one assignment of error with subparts as follows:
                                                        5

    THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN

GRANTING DEFAULT JUDGMENT WHEN DEFENDANT WAS NOT

PROPERLY SERVED AND IN GRANTING DEFAULT JUDGMENT THE

DAY AFTER THE MOTION WAS FILED AND FURTHER IN

OVERRULING DEFENDANT-APPELLANT’S MOTION TO SET ASIDE

JUDGMENT.

    A. THE TRIAL COURT VIOLATED APPELLANT’S

    RIGHTS UNDER CIV.R. 4.1(B) AND THE DUE PROCESS

    CLAUSE OF THE 14th AMENDMENT OF THE UNITED

    STATES CONSTITUTION AND       COMPOUNDED THIS

    ERROR AFTER IT WAS BROUGHT TO THE COURT’S

    ATTENTION AND OVERRULE APPELLANT’S MOTION

    FOR RELIEF FROM JUDGMENT (sic).

    B.   THE TRIAL COURT VIOLATED APPELLANT’S

    RIGHTS UNDER OHIO CIV. R. 12 and/or CIV.R. 55 AND

    THE DUE PROCESS CLAUSE OF THE 14th AMENDMENT

    OF THE UNITED STATES CONSTITUTION WHEN IT

    GRANTED A DEFAULT JUDGMENT THE DAY AFTER IT

    WAS FILED THEREBY DENYING APPELLANT AN

    OPPORTUNITY TO BE HEARD AND COMPOUNDED

    THIS ERROR AFTER IT WAS BROUGHT TO THE

    COURT’S ATTENTION AND OVERRULE APPELLANT’S
                                                                                          6

               MOTION FOR RELIEF FROM JUDGMENT (sic).

       {¶ 5}     “‘Civil Rule 60 provides the exclusive grounds which must be present and

the procedure which must be followed in order for a court to vacate its own judgment.’

McCue v. Buckeye Union Ins. Co. (1979), 61 Ohio App.2d 101, 15 O.O.3d 103, 399 N.E.2d

127. See, also, Civ.R. 55(B).” Miamisburg Motel v. Huntington Natl. Bank, 88 Ohio App.3d

117, 122-23, 623 N.E.2d 163 (2d Dist.1993).

       {¶ 6}     Civ.R. 60 provides as follows:

               (A) Clerical mistakes

               Clerical mistakes in judgments, orders or other parts of the record and

       errors therein arising from oversight or omission may be corrected by the court

       at any time on its own initiative or on the motion of any party and after such

       notice, if any, as the court orders. * * *

               (B) Mistakes; inadvertence; excusable neglect; newly discovered

       evidence; fraud; etc.

               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
                                                                                             7

       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. A motion under this subdivision (B) does not

       affect the finality of a judgment or suspend its operation.

               The procedure for obtaining any relief from a judgment shall be by

       motion as prescribed in these rules.

       {¶ 7}    As this Court noted in Miamisburg Motel:

               The Ohio Supreme Court has held that to prevail on a motion brought

       under Rule 60(B) the movant must demonstrate (1) that the party has a

       meritorious defense or claim to present if relief is granted; (2) that the party is

       entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through

       (5); and (3) that 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. Argo Plastic Prod.

       Co. v. Cleveland (1984), 15 Ohio St.3d 389, 391, 15 OBR 505, 506-507, 474

       N.E.2d 328, 330; GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47

       Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113. Id., 123.

These “requirements are independent and in the conjunctive, not the disjunctive.” GTE

Automatic Elec., Inc., at 151.

       {¶ 8}    We review a trial court’s disposition of a Civ.R. 60(B) motion for an abuse of
                                                                                         8

discretion. Eubank v. Anderson, 119 Ohio St.3d 349, 2008-Ohio-4477, 894 N.E.2d 48.

“Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary, or

unconscionable. Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985).

A decision is unreasonable if there is no sound reasoning process that would support that

decision. AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50

Ohio St.3d 157, 553 N.E.2d 597 (1990). Feldmiller v. Feldmiller, 2d Dist. Montgomery No.

24989, 2012-Ohio-4621, ¶ 7.

       {¶ 9}   We note that in his motion, Baker asserted, “It appears that a mistake was

made entering the default judgment.” As this Court has noted:

               It is well-established that a motion under Civ.R. 60(B) may not be used

       as a substitute for a direct appeal. Risner v. Cline, Champaign App.

       No.2003-CA-24, 2004-Ohio-3786, citing Doe v. Trumbull Cty. Children

       Servs. Bd. (1986), 28 Ohio St.3d 128, 502 N.E.2d 605 (Civ.R.60(B) motion

       may not be based on a change in the decisional law after final judgment has

       been rendered). As explained by the Tenth District Court of Appeals:

               “[A] motion for relief from judgment cannot be predicated upon the

       argument that the trial court made a mistake in rendering its decision. Chester

       Twp. v. Fraternal Order of Police (1995), 102 Ohio App.3d 404, 408, 657

       N.E.2d 348. The type of mistake contemplated by Civ.R. 60(B)(1) is a mistake

       by a party or his legal representative, not a mistake by the trial court in its

       legal analysis. Antonopoulos v. Eisner (1972), 30 Ohio App.2d 187, 284

       N.E.2d 194; Carrabine v. Brown (Aug. 13, 1993), Geauga App. No.
                                                                                             9

          92-G-1736. In order to contest the trial court's judgment dismissing his

          motion, appellant was required to directly appeal that judgment. Civ.R. 60(B)

          relief cannot be employed as a substitute for an appeal. Doe v. Trumbull Cty.

          Children Services Bd. (1986), 28 Ohio St.3d 128, 131, 502 N.E.2d 605.” Tonti

          v. Tonti, Franklin App. Nos. 03AP-494, 03AP-728, 2004-Ohio-2529, ¶ 130.

          Ford Motor Credit Co. v. Cunningham, 2d Dist. Montgomery No. 20341,

          2004-Ohio-6226, ¶ 14-15.

          {¶ 10}    We further note that Baker mischaracterizes the record. Baker’s brief

provides that in his motion below, “I indicated I was just been (sic) retained for the case and,

believing the issue with regards to default judgment was a clerical error due to the timelines

involved and other irregularities moved primarily under Civil Rule 60(A) but in the

alternative presented a 60(B) motion.” Nowhere in Baker’s motion did he assert that he was

recently retained, and aside from misquoting Civ.R. 60(A), his motion is addressed to the

requirements of Civ.R. 60(B). As MidFirst asserts, Baker’s argument that he was not served

with MidFirst’s complaint is waived as he is raising it for the first time on appeal, and it is

further inconsistent with the assertion in his motion that “Mr. Baker was served on June 25,

2013 * * * .” Baker’s assertion that the court’s granting of default judgment was a clerical

error lacks merit; as the trial court determined, Baker failed to respond to MidFirst’s

complaint. In his brief Baker acknowledges that “[o]n August 12, 2013 * * * counsel

entered their appearance requesting the default judgment be vacated * * * .” (Emphasis

added).     Most importantly, we conclude that Baker’s Civ.R. 60 motion is an improper

attempt to circumvent the appellate process and attack the default judgment and foreclosure
                                                                                            10

decree. We note that Baker’s brief is devoid of any argument addressed to the requirements

of Civ.R.60(B) or how he met them. In fact, the above-quoted sentence from Baker’s brief

contains the sole reference to Civ.R. 60 in the brief. Finally, as the trial court noted, in his

motion, Baker failed to even allege a meritorious defense; he merely asserted, “It appears that

Mr. Baker may have Meritorious Defenses. However, I could not examine this matter in

light of the sheriff’s sale emergency.”

       {¶ 11} For the foregoing reasons, Baker’s assigned error is overruled.               We

accordingly need not address MidFirst’s motion to strike. Judgment affirmed.

                                          ..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Angela D. Kirk
Douglas Trout
John J. Scaccia
Hon. Dennis J. Adkins
