[Cite as Third Federal S. & L. v. Sutton, 2018-Ohio-2003.]


STATE OF OHIO                     )                           IN THE COURT OF APPEALS
                                  )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

THIRD FEDERAL SAVINGS & LOAN                                  C.A. No.      28763

        Appellee

        v.                                                    APPEAL FROM JUDGMENT
                                                              ENTERED IN THE
JACQUELINE SUTTON                                             COURT OF COMMON PLEAS
                                                              COUNTY OF SUMMIT, OHIO
        Appellant                                             CASE No.   CV-2015-07-3661

        and

DOLORES HOVAN, et al.

        Appellees


                                 DECISION AND JOURNAL ENTRY

Dated: May 23, 2018



        SCHAFER, Presiding Judge.

        {¶1}     Defendant-Appellant, Jacqueline L. Sutton, appeals from the judgment entered

against her in the Summit County Court of Common Pleas on the cross-claim of Cross-

claimant/Defendant-Appellee, Dolores Hovan.                  For the reasons set forth below, this Court

affirms.

                                                       I.

        {¶2}     This matter initiated with a complaint in foreclosure filed by the bank, Third

Federal Savings and Loan, on July 22, 2015. The bank named Jacqueline L. Sutton as a primary

defendant in the foreclosure action. The bank also named Dolores P. Hovan as a defendant
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claiming an interest in the property. Ms. Sutton was served with the complaint, but failed to

enter an appearance in the action.

       {¶3}    On September 8, 2015, Ms. Hovan filed an answer to the complaint and asserted a

cross-claim against Ms. Sutton. The cross-claim demanded judgment against Ms. Sutton in the

amount of $96,000.000 based on Ms. Hovan’s interest in the subject property of the foreclosure

memorialized in a recorded agreement between Ms. Hovan, Ms. Sutton, and Ms. Sutton’s

deceased husband, Robert. She served Ms. Sutton with the cross-claim by publication as of

November 13, 2015.

       {¶4}    Ms. Hovan initially moved for default judgment on November 17, 2015.

However, the trial court overruled that motion as premature because, although Ms. Sutton had

been served with the cross-claim, her time to respond to the pleading had not yet run. On

December 29, 2015, Ms. Hovan again moved for default judgment. The trial court entered

judgment and issued a decree of foreclosure on January 13, 2016, and also granted default

judgment in favor of Ms. Hovan on her cross-claim against Ms. Sutton.

       {¶5}    Thereafter, on January 28, 2016, Ms. Sutton attempted to appear by counsel and

sought leave to file an answer to the cross-claim. The trial court denied the motion on February

3, 2016, indicating that judgment had already been granted.

       {¶6}    On February 2, 2016, Ms. Sutton filed a “motion to vacate partially void

judgment” asserting that Ms. Hovan’s application for default was not served on Ms. Sutton.

After this Court dismissed an attempted appeal for lack of a final appealable order, the trial court

issued an order denying Ms. Sutton’s motion to vacate on March 25, 2016. The subject property

then sold at sheriff’s sale and that sale was confirmed on April 15, 2016.
                                                3


       {¶7}    Ms. Sutton filed a motion for relief from judgment pursuant to Civ.R. 60(B) on

November 28, 2016.      In this motion, Ms. Sutton argued that she should be relieved from

judgment on the grounds of fraud under Civ.R. 60(B)(3) and, alternatively, for other reasons

justifying relief under Civ.R. 60(B)(5). The trial court denied this motion in an order dated

December 21, 2016. Ms. Sutton again attempted to appeal the matter to this Court. On June 6,

2017, this Court again dismissed the appeal for lack of a final appealable order regarding the

judgment entered against Ms. Sutton

       {¶8}    The trial court entered a “final and appealable” judgment entry on August 4,

2017. In the judgment entry, the trial court ordered that Ms. Hovan is entitled to judgment

against Ms. Sutton, personally, in the amount of $96,000.00, plus interest at the applicable

statutory rate from the date of January 13, 2016, until the judgment is paid. The trial court

denied Ms. Hovan’s request for attorney fees. The trial court also reaffirmed its prior decisions

of March 24, 2016, denying Ms. Sutton’s motion to vacate, and of December 21, 2016, denying

Ms. Sutton’s motion for relief from judgment.

       {¶9}    Ms. Sutton has timely appealed the final judgment entered, raising three

assignments of error for our review.

                                                II.

                                       Assignment of Error I

       The honorable trial court erred in granting the motion for default judgment
       of [Ms. Hovan].

       {¶10} Ms. Sutton contends that the trial court erred in granting the motion for default

judgment because Ms. Hovan failed to serve a copy of the application for default judgment on

Ms. Sutton, and Ms. Sutton was not afforded an opportunity to respond. Ms. Sutton also
                                                  4


contends that the trial court should have denied the motion for default judgment “on the merits”

because of “ample evidence” that Ms. Hovan’s “actions contradict her claim[.]”

        {¶11} This Court reviews the decision of the trial court to grant or deny a motion for

default judgment for an abuse of discretion. Thomas v. Steps, 9th Dist. Summit No. 27187,

2014-Ohio-5018, ¶ 5. An abuse of discretion is more than an error of law or judgment; rather, it

is a finding that the court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). Under this standard of review, this Court may not

merely substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio

St.3d 619, 621 (1993).

        {¶12} Civ.R. 55(A) provides, in pertinent part, that “[w]hen a party against whom a

judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by

these rules, the party entitled to a judgment by default shall apply in writing or orally to the court

therefore[.]” “The provisions of this rule apply whether the party entitled to the judgment by

default is a plaintiff, a third-party plaintiff or a party who has pleaded a cross-claim or

counterclaim.” Civ.R. 55(C). Ms. Sutton has not contested the following facts: (1) she was

served with the complaint and cross-claim, (2) she had not appeared in the action prior to the

entry of default judgment, and (3) she was in default for failure to answer when Ms. Hovan

moved for default judgment.

        {¶13} Nevertheless, Ms. Sutton argues that Ms. Hovan was required pursuant to Summit

County Loc.R. 7.04(C) to serve Ms. Sutton with notice of her application for default judgment.

Loc.R. 7.04 is captioned “form of pleadings” and states the following in subsection (C) regarding

certificate of service:

        Every written pleading, motion, brief, memorandum or argument, filed with the
        Court or judge, shall be served upon all opposing counsel or upon all parties not
                                                 5


       represented by counsel, and proof of such service shall be shown on or attached to
       such written pleading, motion, brief, memorandum, or argument. No such paper
       filed with the Court or judge without such Certificate of Service, shall be
       considered by any judge, except trial briefs where it has been agreed by counsel
       that they shall not be exchanged.
Summit County Loc.R. 7.04(C). While the local rule does require service of motions on all

parties, it does not specifically address or apply to a situation where a party, such as Ms. Sutton,

has been served but has failed to appear in the action and the complaining party makes

application pursuant to Civ.R. 55 for default judgment.

       {¶14} Civ.R. 55, however, permits a party to apply for default judgement, in writing or

orally, and explicitly provides that service of written notice of the application prior to a hearing

is required only when the defaulting party “has appeared in the action”. (Emphasis added.)

Civ.R. 55(A) (“If the party against whom judgment by default is sought has appeared in the

action, he * * * shall be served with written notice of the application for judgment at least seven

days prior to the hearing on such application.”) Moreover, “[t]he Ohio Supreme Court has stated

that ‘[i]f the defending party has failed to appear in the action, a default judgment may be entered

without notice.’” Wells Fargo Bank, N.A. v. Deel, 9th Dist. Summit No. 25876, 2012-Ohio-3782,

¶ 10 quoting Ohio Valley Radiology Assoc, Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118,

120 (1986).    The default in this matter arose because Ms. Sutton “‘failed to contest the

allegations raised in the [cross-claim] and it is thus proper to render a default judgment against

[her] as liability has been admitted or “confessed” by the omission of statements refuting [Ms.

Hovan’s] claims.” Id. quoting Reese v. Proppe, 3 Ohio App.3d 103, 105 (8th Dist.1981).

       {¶15} This Court concludes that the trial court did not abuse its discretion by granting

the motion for default judgment because Civ.R. 55(A) did not require service of the motion on

Ms. Sutton as a party having not appeared in the action, and Loc.R. 7.04 does not create such a

requirement where a party is in default and failed to make an appearance. Furthermore, because
                                                 6


the significance of Ms. Sutton’s default is that she “admitted” or “confessed” to the allegations

by default, the trial court did not abuse its discretion in granting the motion for default judgment

without undertaking a sua sponte evidentiary review of the merits of Ms. Hovan’s cross-claim.

See Deel at ¶ 10. Accordingly, Ms. Sutton’s first assignment of error is overruled.

                                     Assignment of Error II

       The honorable trial court erred in denying the motion to vacate partially
       void judgment entry of [Ms. Sutton].


       {¶16} Ms. Sutton next argues that the trial court erred when it denied her motion to

vacate the default judgment. Ms. Sutton’s motion to vacate raised the precise issue discussed

above regarding the fact that Ms. Hovan did not serve the motion for default judgment on Ms.

Sutton. In the motion to vacate, Ms. Sutton did not cite to any Civ.R. 60(B) grounds, nor did she

aver that the judgment was void.       See Lorain Natl. Bank v. Corna, 9th Dist. Lorain No.

13CA010472, 2015-Ohio-432, ¶ 7 (discussing the distinction between a common law motion to

vacate a void judgment and a Civ.R. 60(B) motion.) Nevertheless, we need not address the issue

of whether Ms. Sutton’s motion presented the trial court with proper grounds to consider

vacating the default judgment. Based on our resolution of the first assignment of error—

determining that Ms. Hovan was not required to serve the motion for default judgment on Ms.

Sutton—this Court concludes the trial court did not err in denying Ms. Sutton’s motion to vacate

on that basis.

       {¶17} Ms. Sutton’s second assignment of error is overruled.

                                    Assignment of Error III

       The honorable trial court erred in denying the motion for relief from
       judgment pursuant to [Civ.R. 60(B)] of [Ms. Sutton].
                                                7


       {¶18} In her third assignment of error, Ms. Sutton argues that the trial court erred when

it denied her motion for relief from judgment pursuant to Civ.R. 60(B). “The trial court’s

decision to grant or deny a Civ.R. 60(B) motion for relief from judgment is within the sound

discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.”

Chuck Oeder Inc. v. Bower, 9th Dist. Summit No. 23785, 2007-Ohio-7032, ¶ 4.

       {¶19} “If a judgment by default has been entered, the court may set it aside in

accordance with [Civ.R.] 60(B).” Civ.R. 55(B). To prevail on a motion for relief from judgment

under Civ.R. 60(B), the movant must demonstrate that it has met each of three requirements as

set forth by the Supreme Court of Ohio in GTE Automatic Electric, Inc. v. ARC Industries, Inc.,

47 Ohio St.2d 146 (1976), paragraph two of the syllabus. Those requirements are:

       (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.

Id.

       {¶20} In her motion, Ms. Sutton relied on the third and fifth grounds for relief in Civ.R.

60(B). Civ.R. 60(B)(5) provides for “any other reason justifying relief from the judgment[.]”

Civ. R. 60(B)(5) is intended as a “catch-all provision” permitting a court to exercise its inherent

power “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 other more specific provisions” of the rule. Caruso-Ciresi, Inc. v.

Lohman, 5 Ohio St.3d 64 (1983), paragraph one of the syllabus. The grounds for invoking this

“provision should be substantial.” Id. at paragraph two of the syllabus.

       {¶21} Civ.R. 60(B)(3) provides for relief on the grounds of “fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party[.]”
                                                8


“This Court acknowledged that ‘the fraud or misconduct referred to in Civ.R. 60(B)(3) is fraud

or misconduct material to obtaining the judgment, not fraud or misconduct upon which a claim

or defense is based.’” CitiMortgage, Inc. v. Dudek, 9th Dist. Summit No. 25806, 2012-Ohio-899,

¶ 13, quoting Indymac Bank, F.S.B. v. Starcher, 9th Dist. Summit No. 24194, 2008-Ohio-4079, ¶

10.

       {¶22} In her motion, Ms. Sutton argued the existence of fraud based on Ms. Hovan’s

alleged actions to make it appear as though she was forced from the home and, therefore, entitled

to judgment based on the terms of the agreement that was the subject of her cross-claim against

Ms. Sutton. Thus, Ms. Sutton presented an argument alleging fraud relative to the merits of the

claim and Ms. Sutton’s purported meritorious defense thereto. Ms. Sutton did not, however,

establish or even allege the existence of “fraud or misconduct material to obtaining the

judgment.” Id. Therefore, we conclude that the trial court did not err in denying Ms. Sutton’s

motion on Civ.R. 60(B)(3) grounds.

       {¶23} Further, Ms. Sutton failed to present any argument in her motion as to Civ.R.

60(B)(5) grounds for relief. “Rather, [s]he relied upon h[er] alleged meritorious defense [and the

resulting consequences of the judgment] to assert that the grant of default judgment should be

vacated in the interests of justice.” Chuck Oeder Inc, 2007-Ohio-7032, ¶ 11. However, it is not

sufficient for a party to “contend it should be relieved of the default judgment pursuant to Civ.R.

60(B)(5) simply because it had a meritorious defense.” Id. quoting Caruso-Ciresi, Inc., 5 Ohio

St.3d at 66. Therefore, we conclude that the trial court did not err in denying Ms. Sutton’s

motion on Civ.R. 60(B)(5) grounds.
                                                 9


       {¶24} “Because [Ms. Sutton] failed to satisfy the first prong from GTE Automatic Elec,

Inc., the trial court did not abuse its discretion in denying her Civ.R. 60(B) motion.” Dudek at ¶

13. Accordingly, Ms. Sutton’s third assignment of error is overruled.

                                                III.

       {¶25} All three of Ms. Sutton’s assignment of error are overruled. The judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
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HENSAL, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

BRADLEY HULL, IV, Attorney at Law, for Appellant.

DOLORES HOVAN, pro se, Appellee.
