[Cite as Roweton v. Willis, 2018-Ohio-1770.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY


JUDY ROWETON,
EXECUTRIX OF THE ESTATE OF
JERRY L. ROWETON,

        PLAINTIFF-APPELLEE,                               CASE NO. 8-17-49

        v.

JEAN ANN WILLIS, ET AL.,

        DEFENDANTS-APPELLEES,
        -and-                                             OPINION

DANIEL ROWETON, ET AL.,

        DEFENDANTS-APPELLANTS.


                  Appeal from Logan County Common Pleas Court
                                 Probate Division
                            Trial Court No. 13-CE-128

                                      Judgment Affirmed

                              Date of Decision: May 7, 2018


APPEARANCES:

        Thomas J. Buecker and Laura E. Waymire for Appellants

        David R. Watkins for Appellee, Judy Roweton
Case No. 8-17-49


ZIMMERMAN, J.

           {¶1} Defendant-appellants, Daniel Roweton (“Daniel”) and Mary Lewis

(“Mary”), appeal the Logan County Probate Court’s judgment entry denying their

motion to vacate default judgments. For the reasons that follow, we affirm the

judgment of the trial court.

                          Facts and Procedural History, First Appeal

           {¶2} On May 9, 2013, Jerry Roweton (“Jerry”) died testate. (Doc. 1). Jerry

was the father of five children, Karen Durr, Jerry L. Roweton, James Roweton, Jean

Ann (Willis) Roweton, and Robert Roweton. However, only Karen, Jean and

Robert survived him. On July 11, 2013, Plaintiff Judy Roweton, as executor of

Jerry’s estate (“Executor”), filed a “complaint for construction of the will” against

Daniel, Mary, and other relatives as defendants.1 (Id.). Daniel and Mary were

served with a summons and a copy of the complaint on July 13 and 23, 2013,

respectively. (Docs. 5, 7).

           {¶3} However, on August 20, 2013, Brenda Roweton, as power of attorney

for Daniel, filed a handwritten answer to the complaint on Daniel’s behalf in the

trial court. (Doc. 11).

           {¶4} In motions filed October 21 and 23, 2013, the Executor requested

default judgments against Daniel, Mary, and others, arguing that Mary (and others)



1
    Daniel and Mary were the children of James Roweton.

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“failed to file a responsive pleading” and that “a proper responsive pleading has not

been filed in this action” by Daniel. (Docs. 17, 20).

       {¶5} In orders filed October 23 and November 6, 2013, the trial court issued

default judgments against Daniel and Mary. (Docs. 19, 21). In its October 23, 2013

entry, the trial court found that service was perfected upon Daniel.            (Id.)

Nevertheless, on December 9, 2013, the trial court sua sponte vacated its default

judgment against Daniel, finding his answer filed by Brenda (as Daniel’s Power of

Attorney) was proper. (Doc. 22). Thereafter, on April 29, 2014, Daniel filed a

motion for extension to file an answer to the complaint because he was incarcerated

at the Noble Correctional Institution, and had been so incarcerated since August,

2013. (Doc. 27).

       {¶6} On May 19, 2014, Mary, through counsel, filed a motion for leave to

file an answer. (Doc. 35). The trial court, over the Executor’s objection, granted

Mary’s motion on July 30, 2014 and her answer was filed that same day in the trial

court. (Docs. 36, 38, 39).

       {¶7} Thereafter, on August 19, 2014, both Daniel and Mary filed a motion

for summary judgment. (Docs. 41, 43). On September 19, 2014, following an

August 22, 2014 pretrial hearing, the trial court ordered the parties to file any

motions for summary judgment by September 30, 2014. (Doc. 49). On September

24, 2014, Daniel and Mary filed a supplemental motion for summary judgment.


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Case No. 8-17-49


(Doc. 51). On September 30, 2014, the Executor, Judy (individually) and Jean filed

a motion for summary judgment. (Doc. 52). Daniel and Mary filed a “reply to

motions for summary judgment” on November 3, 2014 and on November 4, 2014,

the Executor, Judy (individually) and Jean filed a memorandum in opposition to

Daniel and Mary’s motion and supplemental motion for summary judgment. (Docs.

57, 58).

       {¶8} On January 30, 2015 the trial court filed its judgment entry granting

Daniel and Mary’s motion for summary judgment and denied the Executor, Judy

(individually) and Jean’s motion for summary judgment. (Doc. 60). An appeal of

this order was filed (by Judy and Jean) on February 26, 2015.

       {¶9} On July 6, 2015, we dismissed Judy’s (individual) appeal and, as to

Daniel, found that he was properly served with the complaint on July 13, 2013; that

he failed to file a motion for leave to file an answer timely; that the trial court abused

its discretion by accepting Daniel’s August 20, 2013 pleading; and that the trial

court erred when it sua sponte vacated the default judgment against Daniel. (Doc.

80). And, as to Mary, we found that the trial court never set aside the default

judgment against Mary and erred by entering a conflicting final judgment in Mary’s

favor. (Docs. 21, 60).




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       {¶10} Ultimately, we reversed and remanded the case to the trial court for

further proceedings, reinstating the cases to the point where the default judgments

against Daniel and Mary were in effect.

                   Facts and Procedural History, Current Appeal

       {¶11} After the filing of our decision, Daniel and Mary, through counsel,

filed motions in the trial court on July 9, 2015 to vacate default judgments (under

Rule 60(B)) and for leave to file an answer to the plaintiff’s complaint. (Doc. 82).

Ultimately, the trial court conducted a hearing on August 26, 2015, wherein it

received testimony from Daniel (in person) and Mary (by way of Affidavit) as to

their motions to vacate filed under Civ.R. 60(B).

       {¶12} On October 24, 2017 the trial court entered its judgment entry

reinstating the October 23, 2013 default judgment against Daniel and finding that

the November 6, 2013 default judgment against Mary should remain in effect.

Further, the trial court overruled the requests of Daniel and Mary to vacate their

default judgments. (Doc. 111). It is from this entry that Daniel and Mary appeal,

raising the following common assignment of error for our review.

                          ASSIGNMENT OF ERROR

       THE   TRIAL   COURT    ERRED   IN   DENYING
       DEFENDANTS/APPELLANTS’ MOTION TO VACATE THE
       DEFAULT JUDGMENTS AGAINST THEM WHICH IS
       CONTRARY TO LAW.



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Case No. 8-17-49


       {¶13} In their sole assignment of error, Daniel and Mary claim that the trial

court erred in denying their motion to vacate their default judgments asserting that

such default judgments are contrary to law. For the reasons set forth below, we

disagree.

                                 Standard of Review

       {¶14} When reviewing a trial court’s determination of a Civ.R. 60(B) motion

for relief, we must apply an abuse of discretion standard. In Re Whitman, 81 Ohio

St.3d 239 (1998). The phrase “abuse of discretion” implies that the court’s attitude

is “unreasonable, arbitrary or unconscionable”. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983). When applying the abuse of discretion standard, a reviewing

court may not simply substitute its judgment for that of the trial court. Id.

                                      Analysis

       {¶15} Civ. R. 60(B) specifically sets forth grounds for relief from judgment

and provides as follows:

       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

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       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.

       {¶16} To prevail on a Civ.R. 60(B) motion, the moving party must

demonstrate that he or she (1) has a meritorious defense or claim to present if relief

is granted; (2) is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)

through (5); and (3) has made the motion within a reasonable time unless the motion

is based upon Civ.R. 60(B)(1), (2), or (3), in which case it must be made not more

than one year after the judgment. GTE Automatic Elec., Inc. v. ARC Industries, Inc.,

47 Ohio St.2d 146, (1976) paragraph two of the syllabus. If any one prong of GTE’s

three prong test is not satisfied, the entire motion must be overruled.           Rose

Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20 (1988).

       {¶17} In determining whether the trial court abused its discretion in denying

Daniel and Mary’s motion to vacate the default judgment, we will analyze the three

prong test set forth in GTE. For ease of discussion, we will address the three prongs

out of order.

                        Reasonable Time to file 60(B) motion

       {¶18} The third prong of the GTE test is that the motion to vacate the default

judgment must be made within a reasonable time. Where the grounds for relief are

pursuant to Civ.R. 60(B)(1), (2), or (3), the motion must be filed not more than one

year after the judgment or order was entered. Although Civ.R. 60(B) provides that

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a motion made pursuant to Civ.R. 60(B)(5) shall be made within a reasonable time,

it does not specify what constitutes as reasonable time. See Zwahlen v. Brown, 1st

Dist. Hamilton No. C-070263, 2008-Ohio-151.

       {¶19} In the case sub judice, default judgments were ordered by the trial

court against Daniel and Mary on October 23, 2013 and November 6, 2013,

respectively. Daniel and Mary, through counsel, filed a motion to vacate their

default judgments in the trial court on July 9, 2015, over 20 months after each

default judgment was entered. Thus, on its face, both Daniel and Mary’s 60(B)

motions were filed more than one year after the judgments they seek to vacate were

issued. As such, Daniel and Mary’s motions made pursuant to Civ.R. 60(B)(1), are

time barred.

       {¶20} Moreover, Daniel and Mary argue that the “reasonable time” period

set forth under Civ.R. 60(B)(5) applies here under the circumstances of this case

justifying the vacating of the default judgments. We disagree because Daniel and

Mary have failed to identify a justifiable cause for their failure to file their respective

motion for relief within a reasonable time. With the absence of justifiable cause,

we find no merit to their argument. See also Mt. Olive Baptist Church v. Pipkins

Paints, 64 Ohio App.2d 285, 289 (motion under Civ.R. 60(B)(5) filed seven months

after notice of the action and four months after default entry is not filed “within a

reasonable time”).


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       {¶21} Having found the record void of evidence that Daniel and Mary timely

filed their motion for relief from judgment under Civ.R. 60(B), we need not review

the remaining prongs of the GTE test as it relates to this case. ABN AMRO Mtge.

Group, Inc. v. Jackson, 159 Ohio App.3d 556 (2005).

       {¶22} Accordingly, we find that the trial court did not abuse its discretion in

denying Daniel and Mary’s motion to vacate their default judgments.             Thus,

Appellants’ sole assignment of error is overruled.

       {¶23} Having found no error prejudicial to the Appellants herein in the

particular assignment of error, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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