[Cite as Auto Connection, L.L.C. v. Prather, 2011-Ohio-6644.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 96564 and 96736




                            AUTO CONNECTION, LLC
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                                   LONNIE PRATHER
                                                           DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-582066

        BEFORE: Cooney, J., Blackmon, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: December 22, 2011
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FOR APPELLANT

Lonnie Prather
Inmate No. 452-090
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEY FOR APPELLEE

Melvin H. Banchek
Melvin H. Banchek Co., L.P.A.
55 Public Square
Suite 918
Cleveland, Ohio 44113




COLLEEN CONWAY COONEY, J.:

      {¶ 1} This case came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. In this consolidated appeal, defendant-appellant, Lonnie

Prather (“Prather”), pro se, appeals the denial of his Civ.R. 60(B) motion for relief from

judgment. We find no merit to the appeal and affirm.

      {¶ 2} Plaintiff-appellee, Auto Connection LLC (“Auto Connection”), filed suit

against Prather for breach of a lease agreement. Larry Sadowski, the sole proprietor of

Auto Connection, signed the lease for property Prather owned located at 4321 Pearl Road

in Cleveland on December 13, 2002.         On that same date, Sadowski paid Prather’s
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business partner, Angel Copen (“Copen”), $4,000 to cover the first month’s rent and

security deposit. However, Sadowski never occupied the property because the day after

the parties entered into the lease agreement, Prather murdered Copen. When police

arrested Prather on December 14, 2002, shortly after the murder, they seized $4,129 in

cash from him.

       {¶ 3} Auto Connection filed suit against Prather to recover the $4,000. Prather

asserted a counterclaim for breach of contract alleging $15,000 in damages.              In

November 2007, after Auto Connection amended the complaint to include a claim for

civil forfeiture, the parties entered into a settlement agreement on the record with Prather

participating from prison via video conference. Prather stipulated that, to the extent he is

entitled to the return of the money, the clerk could distribute it to Auto Connection’s

attorney, who would pay one-half to Sadowski, and the other one-half to Prather. The

agreement also required Auto Connection’s attorney, Melvin Banchek, to draft an entry

directing the clerk of court to disburse the funds. After the parties memorialized the

agreement, the court dismissed all claims without prejudice.

       {¶ 4} Unfortunately, the court could not approve the entry because the Cleveland

police, rather than the clerk of courts, possessed the money. In its journal entry dated

October 28, 2010, the court noted that other individuals and entities such as the city of

Cleveland, the payor of the checks, USA Auto LLC (an entity Sadowski had an interest
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in), and the estate of Angel Copen, may have a legal right to the funds, but they were not

parties to the lawsuit. The court’s order concluded that

             “The only thing the parties’ stipulation accomplished is to agree to their
      respective interests in the event one or both of them is entitled to the money.
      Beyond that, as noted above, the court is without jurisdiction to declare the rights
      and obligations of the possessor of the money and other non-parties to this lawsuit
      who may claim an interest.”

      {¶ 5} In November 2010, Prather filed a motion for relief from judgment. The

court granted the motion, reinstated all the claims, and set the case for trial.         In its

November 24, 2010 entry vacating the prior judgment, the court stated, in part:

             “The plaintiff’s complaint and the defendant’s counterclaim — are
      reinstated to the court’s active docket and set for a trial as follows: Trial by jury set
      for 1/6/11 at 01:15 P.M. Failure to appear of a party with an affirmative claim
      will result in that claim being dismissed for want of prosecution. Failure to
      appear of a party defendant against an affirmative claim may result in a judgment
      against the non-appearing party. * * * Notice Issued.”

      {¶ 6} The trial proceeded as scheduled. Sadowski was present with his attorney

on behalf of Auto Connection. Prather was not present because he was incarcerated.

The docket indicates that despite having been previously granted leave to appear by video

conference, Prather never pursued appearing by video conference for this new trial date.

      {¶ 7} At the conclusion of the trial, the court found that Sadowski was the real

party in interest. Although the checks paid to Angel Copen were drawn on an account

with the name USA Auto, LLC, the testimony established that USA Auto never existed

and that the payments were actually from Sadowski himself. The court further found that
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       “the lease was entered into under duress. Sadowski testified that he signed the
       lease under threat of bodily harm. The credibility of that threat was proved within
       a day or two of signing the lease when Prather murdered Angel Copen.
       Therefore, the lease may be avoided [sic] and the plaintiff is entitled to the return
       of his payments, for which he received no value.”

       {¶ 8} The court entered judgment in favor of Sadowski against Prather in the

amount of $4,000, with interest at the statutory rate beginning December 13, 2002, and

court costs.    The court also entered judgment in favor of Sadowski on Prather’s

counterclaim.

       {¶ 9} Prather subsequently filed three motions for relief from judgment within a

period of six weeks.      The court denied the motions, and Prather filed these two

consolidated appeals.

       {¶ 10} In both appeals, Prather argues the trial court erred in denying his motions

for relief from judgment. In each appeal, Prather presents a different argument set forth in

a single assignment of error.

       {¶ 11} An order denying a motion for relief from judgment will not be reversed

absent an abuse of discretion. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17,

20, 520 N.E.2d 564. To prevail on a Civ.R. 60(B) motion, 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 judgment. GTE Automatic
                                            6

Elec. v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the

syllabus. Failure to satisfy any one of the three prongs of the GTE decision is fatal to a

motion for relief from judgment. Rose Chevrolet, Inc. at 20.

       {¶ 12} In the first appeal, Prather argues the court failed to provide him notice of

the trial date, which precluded his participation at trial. In the second appeal, Prather

argues the court should have vacated the final judgment because he did not receive timely

notice of the final judgment after trial and was prevented from filing a timely notice of

appeal.   Prather does not dispute that the court issued notices but asserts he was

prejudiced because he never received notice.

       {¶ 13} Civ.R. 58(B) requires that, “[w]hen the court signs a judgment, the court

shall endorse thereon a direction to the clerk to serve upon all parties * * * notice of the

judgment and its date of entry upon the journal. Within three days of entering the

judgment upon the journal, the clerk shall serve the parties in a manner prescribed by

Civ.R. 5(B) and note the service in the appearance docket.” Once the notice is served

and noted on the docket, a party’s failure to receive the notice does not affect the validity

of the judgment or the running of the time for appeal. Atkinson v. Grumman Ohio Corp.

(1988), 37 Ohio St.3d 80, 523 N.E.2d 851, paragraph 2(c) of the syllabus. On the other

hand, if notice is not served or noted on the docket, the time for appeal does not begin to

run. In re Anderson, 92 Ohio St.3d 63, 67, 2001-Ohio-131, 748 N.E.2d 67.
                                           7

       {¶ 14} Prather’s arguments are similar to those argued by the appellant in Leonard

v. Delphia Consulting, LLC, Franklin App. No. 06AP-874, 2007-Ohio-1846.                 In

Leonard, the court granted summary judgment to the plaintiff on April 3, 2006. On April

5, 2006, the clerk of courts noted on the court’s electronic docket that notice of a final,

appealable order was served on the parties. The defendant did not appeal this order.

Rather, on July 20, 2006, the defendant filed a motion for relief from judgment, alleging

that it never received the notice of the adverse summary judgment ruling. The trial court

denied defendant’s motion, and defendant appealed. Id. at ¶1-5.

       {¶ 15} The appellate court affirmed the trial court’s denial of the defendant’s

motion for relief from judgment, holding that the defendant “failed to demonstrate a

meritorious defense that could not have been raised on appeal.” Id. at ¶18. The court

also noted that:

       “once the clerk serves a notice of judgment on the parties in a manner prescribed
       by Civ.R. 5(B) (which includes mailing a notice to the last known address of the
       person to be served), and the clerk notes that service on its docket, the service is
       deemed complete. Moreover, the failure of any party to actually receive the
       notice does not affect the validity of the judgment or the running of the time for
       appeal.”

Id. at ¶11, citing Atkinson and Civ.R. 58(B). See, also, MBA Realty v. Little G, Inc.

(1996), 116 Ohio App.3d 334, 338, 688 N.E.2d 39 (“the burden is on the parties to follow

the progress of their own case”); P. Maynard v. C. Maynard (Feb. 11, 1982), Cuyahoga

App. No. 43642, (appellant “was duty bound to keep abreast of the docket entries”).
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       {¶ 16} Although many practitioners rely on receipt of Civ.R. 58(B) notices to

initiate further action, it is a better practice to regularly inspect the electronic docket since

many notices, for one reason or another, fail to timely reach their intended recipients.

       {¶ 17} According to the record, the clerk of courts issued notice of the trial date in

its entry dated November 24, 2010, more than one month before trial.                  The case

proceeded to trial as scheduled on January 6, 2011. On January 7, 2011, the clerk issued

notices that the trial proceeded ex parte. Moreover, according to Prather’s affidavit

attached to his second motion for relief from judgment, he admits that on January 14,

2011, he received “a post card stating that this case was called for trial on January 6,

2011.” Since the notice of final judgment was not entered on the docket until January

13, 2011, Prather had 29 days in which to file his notice of appeal and was not prejudiced

by any delay in notice of the final disposition of the case.

       {¶ 18} Furthermore, Prather failed to demonstrate a meritorious claim or defense to

present if relief were granted. Civ.R. 60(B)(1); Leonard at ¶18. Indeed, Prather failed

to even allege that he has a valid claim or defense. Therefore, he failed to meet the

requirements set forth in GTE necessary to prevail on a motion for relief from judgment

under Civ.R. 60(B).

       {¶ 19} Accordingly, both assignments of error in these appeals are overruled.
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       Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

PATRICIA ANN BLACKMON, P.J., and
SEAN C. GALLAGHER, J., CONCUR
