[Cite as Hickman v. Naderer, 2016-Ohio-148.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                      ERIE COUNTY


James Hickman, et al.                                Court of Appeals No. E-15-035

        Appellants                                   Trial Court No. CVG 1401852

v.

Daniel Naderer, et al.                               DECISION AND JUDGMENT

        Appellees                                    Decided: January 15, 2016

                                               *****

        John M. Felter, for appellants.

                                               *****

        YARBROUGH, J.

                                           I. Introduction

        {¶ 1} Appellants, James and Amanda Hickman, appeal the judgment of the

Sandusky Municipal Court, granting a Civ.R. 60(B) motion for relief from judgment filed

on behalf of appellees, Daniel and Dawn Naderer. Because we find that appellees did not
demonstrate the existence of a meritorious defense as required under Civ.R. 60(B), we

reverse.

                          A. Facts and Procedural Background

       {¶ 2} On October 8, 2014, appellants filed their complaint with the trial court,

seeking forfeiture of appellees’ rights in a land installment contract under R.C. 5313.08

and restitution of the subject real property.

       {¶ 3} In the complaint, appellants allege that the parties entered into the land

installment contract on July 30, 2010. According to appellants, appellees subsequently

violated the terms of the contract and were in arrears on their payments. Consequently,

appellants demanded, in writing, that appellees vacate the premises and forfeit their rights

under the contract. Despite such demands, appellees allegedly continued to retain

possession of the subject property without paying rent as required under the terms of the

land installment contract.

       {¶ 4} On September 29, 2014, appellants served appellees with a notice of

forfeiture pursuant to R.C. 5316.06.1 According to the complaint, the notice was attached

to the front door of the subject property after the expiration of the 30-day period under

R.C. 5313.05.

       {¶ 5} Thereafter, the trial court set the matter for a hearing on appellants’ forcible

entry and detainer action, notice of which was served upon appellees on October 10,


1
 A copy of the land installment contract and the notice of forfeiture were attached to
appellants’ complaint.




2.
2014. The hearing was held before a magistrate on October 29, 2014. Appellees did not

attend the hearing. As a result, the magistrate concluded that appellees were “properly

served with a notice of forfeiture pursuant to O.R.C. 5313.06, that the requirements of

O.R.C. 5313.08 [were] met, and that [appellees were] unlawfully and forcibly detaining

[appellants’] property by reason of failure to make payments due under the terms of the

land installment contract.” The magistrate’s decision was subsequently adopted by the

court in a separate entry that was journalized on the same day as the hearing.

       {¶ 6} As a result of its findings following the October 29, 2014 hearing, the trial

court set the matter for a hearing on damages, which was scheduled for January 7, 2015.

Appellees did not appear at the damages hearing. Consequently, appellants filed a

motion for default judgment, to which they attached a list of their losses that were

allegedly incurred as a result of appellees’ breach of the land installment contract and

misuse of the subject property. On January 13, 2015, the trial court granted appellants’

motion for default judgment.

       {¶ 7} On March 6, 2015, appellees’ counsel filed an entry of appearance and a

motion for relief from judgment under Civ.R. 60(B). In their motion for relief from

judgment, appellees argued that they did not receive notice of the pendency of this action

as they moved out of the subject property on July 15, 2014, two months prior to the date

that the complaint was attached to the front door of the property. In support of their

assertion, appellees attached a copy of an electric bill showing service at a new address

for the period beginning July 30, 2014.




3.
       {¶ 8} Four days later, appellants filed a brief in opposition to appellees’ motion for

relief from judgment. In their opposition, appellants asserted that the motion must be

denied because appellees failed to allege a meritorious defense or specify the relevant

subsections in Civ.R. 60(B) under which relief would be proper. Further, appellants

argued that appellees’ service of process arguments were without merit because service

of process was made by posting a copy of the summons on the front door of the subject

property pursuant to R.C. 1923.06(D)(2)(c). Additionally, appellants urged that service

was proper in light of appellees’ failure to provide appellants with a forwarding address

at which they could be personally served.

       {¶ 9} Upon consideration of the foregoing arguments, the trial court, on May 27,

2015, issued its decision granting appellees’ motion for relief from judgment.2

Appellants filed a timely notice of appeal and the case was placed on the court’s

accelerated calendar.

                                 B. Assignment of Error

       {¶ 10} On appeal, appellants assert the following assignment of error:

              I. The trial court abused its discretion and erred by granting

       Defendants/Appellees’ motion for relief from judgment.




2
 Notably, the trial court provided no reasoning to support its decision to grant appellees’
motion.




4.
                                       II. Analysis

      {¶ 11} In their sole assignment of error, appellants argue that the trial court erred

in granting appellees’ motion for relief from judgment under Civ.R. 60(B).

      {¶ 12} We review trial court judgments granting or denying relief from judgments

under Civ.R. 60(B) on an abuse of discretion standard. Griffey v. Rajan, 33 Ohio St.3d

75, 77, 514 N.E.2d 1122 (1987). An abuse of discretion connotes that the trial court’s

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

      {¶ 13} Civ.R. 60(B) provides:

             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 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




5.
       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.

       {¶ 14} The Supreme Court of Ohio has stated that, in order to prevail on a Civ.R.

60(B) motion for relief from judgment, 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 proceeding was entered or

       taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d

       146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.

       {¶ 15} If any one of the three GTE requirements is not met, the motion should be

overruled. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).

       {¶ 16} Here, there is no dispute that appellees’ motion for relief from judgment

was filed in a timely fashion. However, appellants assert that the trial court abused its

discretion in granting appellees’ motion where appellees failed to meet their burden of

establishing that they have a meritorious defense or claim to present if relief is granted

and that they are entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)

through (5).




6.
       {¶ 17} To show the existence of a meritorious defense under Civ.R. 60(B), the

movant need not establish ultimate success on the merits. K. Ronald Bailey & Assoc.,

L.P.A. v. Martin, 6th Dist. Erie No. E-08-057, 2009-Ohio-2932, ¶ 15. However, the

movant must provide the trial court with operative facts that would constitute a

meritorious defense if found to be true. Id. The operative facts must be alleged with

enough specificity to allow the trial court to decide whether the movant has met that test.

Id.

       {¶ 18} In their motion for relief from judgment, appellees merely argued that they

should be relieved from judgment due to defective service that did not apprise them of

the pendency of the action against them. Notably, appellees failed to assert a meritorious

defense or claim of any kind. Further, appellees failed to present any evidentiary material

in support of the motion from which the requisite operative facts supporting relief from

judgment could have been ascertained.

       {¶ 19} Because appellees did not meet their burden to show the existence of a

meritorious defense under Civ.R. 60(B), we find that the trial court abused its discretion

in granting their motion for relief from judgment. Accordingly, appellants’ sole

assignment of error is well-taken.

                                     III. Conclusion

       {¶ 20} Based on the foregoing, the judgment of the Sandusky Municipal Court is

reversed. The trial court’s order granting appellees’ motion for relief from judgment is




7.
hereby vacated and this matter is remanded to the trial court for further proceedings

consistent with this decision. Costs are assessed to appellees in accordance with App.R.

24.


                                                                       Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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