[Cite as State Farm Fire & Cas. Co. v. Baumgartner, 2012-Ohio-4391.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

STATE FARM FIRE & CASUALTY CO.                            JUDGES:
                                                          Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                                Hon. William B. Hoffman, J.
                                                          Hon. Julie A. Edwards, J.
-vs-
                                                          Case No. 12-CA-6
DOUGLAS B. BAUMGARTNER

        Defendant-Appellant                               OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Licking County Municipal
                                                     Court, Case No. 11CVE01995


JUDGMENT:                                            Affirmed


DATE OF JUDGMENT ENTRY:                              September 24, 2012


APPEARANCES:


For Plaintiff-Appellee                               For Defendant-Appellant


STEVEN J. ZEEHANDELAR                                DOUGLAS B. BAUMGARTNER, PRO SE
BRITTANY M. HENSLEY                                  Bellmont Correctional Institution
c/o Zeehandelar, Sabatino                            68518 Bannock Rd.
& Associates, L.L.C.                                 P.O. Box 540
471 E. Broad St., Sutie 1500                         St. Clairsville, Ohio 43950
Columbus, Ohio 43215
Licking County, Case No. 12-CA-6                                                       2

Hoffman, J.


        {¶1}   Defendant-appellant Douglas B. Baumgartner appeals the November 1,

2011 Judgment Entry entered by the Licking County Municipal Court, which denied his

Motion to Set Aside Judgment. Plaintiff-appellee is State Farm Fire & Casualty Co.

                           STATEMENT OF THE CASE AND FACTS

        {¶2}   On August 4, 2011, State Farm filed a Complaint in the Licking County

Municipal Court. The Complaint sought damages for monies paid by State Farm to

Elizabeth T. Koegle, its insured, as the result of Appellant committing a theft offense

against Koegle. Appellant filed a timely Answer.

        {¶3}   The trial court scheduled the matter for bench trial on September 22,

2011.     Appellant, who was, and currently is, incarcerated at Belmont Correction

Institution, did not appear at trial. The trial court granted judgment in favor of State

Farm via Judgment Entry filed September 22, 2011.

        {¶4}   On October 5, 2011, Appellant filed a Motion to Set Aside Judgment

Pursuant to Ohio Rules of Civil Procedure 55(B) and 60(B). The trial court scheduled

the matter for oral hearing on October 27, 2011.         Appellant did not appear at the

hearing. Via Judgment Entry filed November 1, 2011, the trial court denied Appellant’s

motion.

        {¶5}   It is from this judgment entry Appellant appeals, assigning as error:

        {¶6}   “I. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT

APPELLANT’S MOTION FOR RELIEF FROM A DEFAULT JUDGMENT PURSUANT

TO OHIO RULE OF CIVIL PROCEDURE 60(B).”

        {¶7}   Civ.R. 60(B) provides:
Licking County, Case No. 12-CA-6                                                      3


             “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 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.”

      {¶8}   To prevail on a motion to vacate a judgment pursuant to Civ. R. 60(B), the

movant must demonstrate: (1) the party has a meritorious defense 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. GTE Automatic Electric Co., Inc. v. ARC Industries, Inc. (1976), 47 Ohio
Licking County, Case No. 12-CA-6                                                         4

St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus. The GTE Automatic factors

are “independent and conjunctive, not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986),

Fairfield App. No. 12–CA–86. “[F]ailing to meet one is fatal, for all three must be

satisfied in order to gain relief.” Id. at 5.

       {¶9}    Our standard of review of a court's decision as to whether to grant a Civ.R.

60(B) motion is abuse of discretion. GTE at 148, 351 N.E.2d 113.

       {¶10} In his motion for relief from judgment, Appellant argued the September 22,

2011 Judgment Entry, which granted judgment in favor of State Farm, should be

vacated as he never received notice of the bench trial and, as of the date of the filing of

his 60(B) motion, had not received a copy of the judgment entry. Appellant did not

allege a meritorious defense to State Farm’s Complaint.

       {¶11} As stated supra, in order to be entitled to relief under Civ.R. 60(B),

Appellant, as movant, was required to demonstrate he had a meritorious defense to

present if relief is granted. The underlying Complaint in the case sub judice alleged

State Farm had paid Koegle, one of its insured, on a policy of insurance for losses the

insured suffered after Appellant committed a theft offense against her. Appellant was,

therefore, required to show he had a meritorious defense to such claim. However, in his

60(B) motion, Appellant failed to state or allege a meritorious defense to such claim.

       {¶12} Appellant’s failure to allege a meritorious defense is fatal to his motion for

relief from judgment.

       {¶13} Appellant’s sole assignment of error is overruled.
Licking County, Case No. 12-CA-6                                                5


      {¶14} The judgment of the Licking County Municipal Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
Licking County, Case No. 12-CA-6                                                   6


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE FARM FIRE & CASUALTY CO.             :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
DOUGLAS B. BAUMGARTNER                     :
                                           :
       Defendant-Appellant                 :         Case No. 12-CA-6


       For the reason stated in our accompanying Opinion, the judgment of the Licking

County Municipal Court is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ John W. Wise _____________________
                                           HON. JOHN W. WISE
