[Cite as Gevaldig Ents., L.L.C. v. Steen, 2013-Ohio-377.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98801



                     GEVALDIG ENTERPRISES, L.L.C.
                                                    PLAINTIFF-APPELLEE

                                                      vs.


            WADE STEEN, COUNTY FISCAL OFFICER
                                                    DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-779803

        BEFORE: Kilbane, J., Boyle, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                           February 7, 2013
ATTORNEY FOR APPELLANT

J. Alex Morton
5247 Wilson Mills Road
Suite 334
Richmond Heights, Ohio 44143

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Reno J. Oradini, Jr.
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Plaintiff-appellant, Gevaldig Enterprises, L.L.C. (“Gevaldig”), appeals from

the order of the trial court that denied its motion for relief from a judgment dismissing its

appeal of a Cuyahoga County Board of Revision (“BOR”) determination that valued its

parcel at $80,000. For the reasons set forth below, we conclude that the trial court did

not abuse its discretion in denying the motion for relief from judgment and affirm.

       {¶2} In the tax year 2010, the county set the taxable value of property located at

3675 Randolph Road in Cleveland Heights at $33,850. On March 31, 2011, Vladimir

Victor (“Victor”) of Gevaldig filed a complaint with the BOR, asserting that the true

taxable value of the parcel is $2,100, because it was purchased for $6,000. The address

to which notices are to be sent was listed on the complaint as 3675 Randolph Road in

Cleveland Heights.

       {¶3} The matter was set for an oral hearing before the BOR on August 10, 2011.

 The BOR sent notice of the hearing to Gevaldig by certified mail at the address provided

by Victor at 3675 Randolph Road in Cleveland Heights, but the record indicates that on

July 19, 2011, it was returned to the BOR as unclaimed.

       {¶4} The hearing proceeded on August 10, 2011, and the BOR noted:

       Complainant did not appear. No evidence proffered to establish existence
       of arm’s length sale, e.g., relation of parties, circumstances of sale,
       motivations to sell. Deed dated 7/30/10, but recorded 4/6/11. Timely
       delivery on or before [date of Gevaldig’s BOR appeal] 3/31/11 is unknown
       so unanswered jurisdiction issues as to proper party. Titled owner for
       Public Square [Tower One v. Cuyahoga Cty. Bd. of Revision, 34 Ohio
       App.3d 49, 516 N.E.2d 1280 (8th Dist.1986)], recording is prima facie of
       delivery. Behymer [v. Six, 5th Dist. No. CA02-006], 2002-Ohio-6403, par.
       13. No comps. No appraisal. No income/expense info. Burdens failed.

       {¶5} On August 24, 2011, the BOR issued a determination that indicated the fair

market value of the parcel is $80,000. The BOR also advised Gevaldig that it could

appeal the determination to the court of common pleas pursuant to R.C. 5717.01 within

30 days. The BOR determination was sent to Gevaldig by certified mail on August 24,

2011, and was accepted by an individual named Stephanie Helmondale (“Helmondale”).

       {¶6} On April 5, 2012, Gevaldig filed an appeal to the court of common pleas.

On May 29, 2012, the county fiscal officer filed a motion to dismiss, noting that the

matter was not filed within the 30-day limit set forth in R.C. 5717.05 and that this time

period is jurisdictional.

       {¶7} In opposition, Gevaldig complained that it did not receive notice of the

hearing, attaching Victor’s affidavit asserting that although Helmondale accepted service

of the August 24, 2011 notice, she “was not authorized by me to accept certified mail on

behalf of Gevaldig Enterprises, LLC.”

        {¶8} On June 14, 2012, the trial court granted the county’s motion to dismiss,
noting that the appeal was filed outside the 30-day jurisdictional time limit. On July 2,
2012, Gevaldig filed a motion for relief from judgment in which Victor averred that,
although Helmondale accepted service of the August 24, 2011 BOR decision that was
sent to 3675 Randolph Road, he did not receive it.

       {¶9} The trial court denied the motion for relief from judgment on July 18, 2012.

 Gevaldig now appeals and assigns the following error for our review:
        The trial court erred in denying [Gevaldig’s] Motion for Relief from

        Judgment.

        {¶10} An appellate court will not reverse the trial court’s ruling on a motion for

relief from judgment unless the trial court abused its discretion. Rose Chevrolet, Inc. v.

Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). An abuse of discretion standard

requires a showing that the trial court’s attitude was unreasonable, arbitrary, or

unconscionable. In re Jane Doe 1, 57 Ohio St.3d 135, 137, 566 N.E.2d 1181 (1991).

When applying the abuse of discretion standard, an appellate court may not substitute its

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619,

621, 1993-Ohio-122, 614 N.E.2d 748 (1993).

        {¶11} Civ.R. 60(B) governs motions for relief from judgment and provides in part:

        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.

        {¶12} The county insists that Civ.R. 60(B) relief is not applicable to this matter.

Civ.R. 1(A) states that the Civil Rules “prescribe the procedure to be followed in all

courts of this state[,]” subject to the exceptions set forth in Civ.R.

1(C).
       {¶13} Civ.R. 1(C) states that the Civil Rules do not apply “where they would by

their nature be clearly inapplicable[.]” In Trebmal Constr. v. Cuyahoga Cty. Bd. of

Revision, 94 Ohio App.3d 246, 640 N.E.2d 601 (8th Dist.1994), this court noted that

Civ.R. 41(A)(1)(a) dismissals are clearly inapplicable to appeals under R.C. 5717.05

because “they [alter the basic statutory design set forth in the statutes regarding tax

valuations[.]” However, the Trebmal court did not find Civ.R. 60(B) motions to be

inapplicable and addressed the appellant’s claim for Civ.R. 60(B) relief under the

three-part test set forth in GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d

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

Assoc. v. Cuyahoga Cty. Bd. of Revision, 8th Dist. No. 56767, 1990 LEXIS 1317 (Mar.

29, 1990) (court addressed motion for Civ.R. 60(B) relief under the three-part test set

forth in GTE Automatic). Therefore, we reject the county’s contention that Civ.R. 60(B)

relief is inapplicable herein.

       {¶14} 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 the judgment, order or proceeding was entered or
       taken.

GTE Automatic Elec., Inc.

       {¶15} The moving party fails the GTE test by not meeting any one of the three

requirements. Rose Chevrolet, Inc., 36 Ohio St.3d at 20, 520 N.E.2d 564 (1988). To

warrant a hearing on a Civ.R. 60(B) motion, the movant must allege operative facts that
would warrant relief under Civ.R. 60(B). Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18,

19, 1996-Ohio-430, 665 N.E.2d 1102. A movant is not required to submit evidentiary

material in support of the motion, but a movant must do more than make bare allegations

of entitlement to relief. Id. at 20.

       {¶16} As an initial matter, we note that Gevaldig’s motion was filed one month

after the court dismissed the complaint, and the county does not dispute the timeliness of

the motion.

       {¶17} As to the issue of whether Gevaldig presented a meritorious defense, the

BOR determination noted the following issues in connection with Gevaldig’s appeal:

       No evidence proffered to establish existence of arm’s length sale, e.g.,
       relation of parties, circumstances of sale, motivations to sell. Deed dated
       7/30/10, but recorded 4/6/11. Timely delivery on or before [date of
       Gevaldig’s BOR appeal] 3/31/11 is unknown so unanswered jurisdiction
       issues as to proper party.

       {¶18} In its motion for relief from judgment, however, Gevaldig failed to address

these issues as it presented nothing to demonstrate the existence of an arm’s length sale or

the fact that its complaint with the BOR preceded the recording of its deed to the parcel.

Therefore, Gevaldig has not alleged a meritorious defense in the event that relief is

granted.

       {¶19} As to grounds for relief from judgment, Gevaldig asserted            “mistake,

inadvertence, surprise or excusable neglect,” pursuant to Civ.R. 60(B)(1) on the basis that

it did not receive notice of the BOR determination that was served upon Helmondale.

Pursuant to R.C. 5717.05, “[t]he appeal shall be taken by the filing of a notice of appeal
with the court and with the board within 30 days after notice of the decision of the board

is mailed as provided in section 5715.20 of the Revised Code.” R.C. 5715.20(A) states

that whenever a county board of revision renders a decision on a complaint, the board

shall certify its action by certified mail to the person in whose name the property is listed

or sought to be listed and to the complainant.

       {¶20} In this matter, service was completed at the address provided by Victor. At

no point did Gevaldig inform the BOR that service should be made at a different address

or advise the BOR that the occupant of the parcel could not receive service. Therefore,

we agree with the trial court’s determination that Gevaldig failed to establish grounds for

relief from judgment under Civ.R. 60(B)(1).

       {¶21} In accordance with the foregoing, we conclude that Gevaldig failed to

establish the requirements for relief from judgment as set forth in GTE Automatic, and

that the trial court, therefore, acted within its proper discretion in denying the motion.

       {¶22} The assignment of error is without merit.

       {¶23} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.




MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
