[Cite as Davidson v. West, 2019-Ohio-224.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Shanel M. Davidson,                                :

                Plaintiff-Appellee,                :
                                                                    No. 18AP-268
v.                                                 :           (M.C. No. M2017CVI-37523)

Paulius R. West, Sr.,                              :           (REGULAR CALENDAR)

                Defendant-Appellant.               :




                                             D E C I S I O N

                                    Rendered on January 24, 2019


                On brief: P.R. West, Sr., pro se. Argued: P.R. West, Sr.

                       APPEAL from the Franklin County Municipal Court
DORRIAN, J.
        {¶ 1} Defendant-appellant, Paulius R. West, Sr., appeals from the March 13, 2018
judgment of the Franklin County Municipal Court overruling appellant's objections to the
magistrate's decision and entering judgment for plaintiff-appellee, Shanel M. Davidson.
For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} On November 1, 2017, appellee filed in the trial court a complaint asserting
that appellant, as her former landlord, wrongfully withheld her security deposit. Appellee
sought the return of her deposit and statutory damages pursuant to R.C. 5321.16, resulting
in a demand for judgment in the amount of $3,276, in addition to court costs and interest.
On November 6, 2017, summons and a copy of the complaint were sent by certified mail to
appellant at P.O. Box 248811, Columbus, Ohio 43224 ("P.O. Box address").                   On
December 7, 2017, a document was filed reflecting no proof of service had been filed.
No. 18AP-268                                                                                2


       {¶ 3} On December 11, 2017, instructions to the clerk were filed ordering certified
mail service on appellant at a new address at 3164 Cannock Lane, Columbus, Ohio 43219
("Cannock Lane address"). On December 13, 2017, a certified letter, which was sent to
appellant at the P.O. Box address, postmarked with a date of November 7, 2017, and
marked as unclaimed, was filed in the record.
       {¶ 4} On December 20, 2017, the trial court's magistrate filed an order
rescheduling trial for January 11, 2018 at the request of appellant. On December 22, 2017,
appellant filed an answer. On December 26, 2017, the trial court filed a notice and
summons rescheduling trial for January 23, 2018, and noted the new trial date and time on
the docket. The record reflects a notice and summons were sent on December 26, 2017 to
appellant at the Cannock Lane address.
       {¶ 5} On January 26, 2018, a magistrate's decision was filed reflecting that
appellant failed to appear for the scheduled trial. The decision entered judgment for
appellee in the amount of $3,276, plus court costs and interest from the date of judgment.
On the same date, the trial court filed a judgment entry adopting the magistrate's decision.
The record reflects that a notice of court order was sent on January 26, 2018 to appellant
at the Cannock Lane address.
       {¶ 6} On February 5, 2018, appellant filed an untitled motion with the trial court.
In the motion, appellant asserted that "I am filing this appeal for a reversal of the judgment
and for this case to be continued in court." On February 20, 2018, a certified letter, which
was sent to appellant at the Cannock Lane address, postmarked with a date of December 27,
2017, and marked as unclaimed, was filed in the record. On March 13, 2018, the trial court
filed an entry construing appellant's February 15, 2018 motion as an objection to the
magistrate's decision, overruling appellant's objection, accepting the magistrate's decision,
and entering judgment for appellee. The record reflects a notice of court order was sent on
March 14, 2018 to appellant at the P.O. Box address.
II. Assignments of Error
       {¶ 7} Appellant appeals and assigns the following two assignments of error for our
review:
              [I.] The trial court erred and abused its discretion in finding
              for the appellee due to the appellant's failure to appear for
              court when rescheduled on January 23, 2018. As noted in the
No. 18AP-268                                                                                     3


               Franklin County Municipal Court Clerk Case Information
               record, the appellant never received appropriate notice and
               was not properly served to show up in court. The judgment
               should be reversed and/or dismissed.

               [II.] The trial court erred in that it did not give due
               consideration to the appellant with respect to the due and just
               trying of this case. Should the appellant been able to
               thoroughly present the facts to the trial court in full, it would
               have been shown that the appellant appeared in court each
               and every time that he received proper process/notice in this
               matter.

(Emphasis sic.) (Sic passim.) Because appellant's assignments of error are interrelated,
we consider them together.
III. Discussion
       {¶ 8} In his assignments of error, appellant argues the trial court deprived him of
due process by failing to serve him notice of the rescheduled trial date. In support of this
argument, appellant asserts this lack of notice constituted sufficient grounds to grant him
relief from judgment pursuant to Civ.R. 60(B). Here, the trial court construed appellant's
February 15, 2018 motion as an objection to the magistrate's decision. However, even if we
were to consider appellant's motion as a motion for relief from judgment under Civ.R.
60(B), we cannot find the trial court erred in denying appellant the requested relief.
       {¶ 9} We apply an abuse of discretion standard when reviewing a trial court's
decision to grant or deny a motion for relief from judgment under Civ.R. 60(B). Wiltz v.
Accountancy Bd. of Ohio, 10th Dist. No. 16AP-169, 2016-Ohio-8345, ¶ 35. An abuse of
discretion occurs when a court's judgment is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       {¶ 10} In order to secure relief under Civ.R. 60(B), a party must establish all of the
following three requirements: "(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 (1976), paragraph two of the syllabus. Civ.R. 60(B) requires a party
set forth one of the following reasons to support the request for relief from judgment:
No. 18AP-268                                                                                 4


              (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.
Appellant asserts he is entitled to relief under Civ.R. 60(B)(1) and (5).
       {¶ 11} We have held that the mistake contemplated under Civ.R. 60(B)(1) is a
mistake of a party or a party's representative, not a mistake by a trial court in rendering its
decision. Star Merchandise, LLC v. Haehn, 10th Dist. No. 16AP-39, 2016-Ohio-8018, ¶ 30;
Freeh v. Hill, 10th Dist. No. 13AP-377, 2014-Ohio-3929, ¶ 16; Foy v. Trumbull Corr. Inst.,
10th Dist. No. 11AP-464, 2011-Ohio-6298, ¶ 11. Here, because the alleged mistake was
committed by the trial court, not by a party or a party's representative, Civ.R. 60(B)(1) is
not applicable.
       {¶ 12} Next, we consider whether appellant is entitled to relief under Civ.R.
60(B)(5). " 'Civ.R. 60(B)(5) is intended as a catch-all provision reflecting the inherent
power of a court to relieve a person from the unjust operation of a judgment, but it is not to
be used as a substitute for any of the other more specific provisions of Civ.R. 60(B).' "
Wireless Resource LLC v. Garner, 10th Dist. No. 11AP-1038, 2012-Ohio-2080, ¶ 16,
quoting Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (1983), paragraph one of the
syllabus. "Courts only invoke Civ.R. 60(B)(5) in those extraordinary and unusual cases
where the moving party demonstrates substantial grounds warranting relief from
judgment." Wiltz at ¶ 40, citing Gill v. Grafton Corr. Inst., 10th Dist. No. 10AP-1094, 2011-
Ohio-4251, ¶ 37, citing Caruso-Ciresi at paragraph two of the syllabus.
       {¶ 13} Appellant asserts he is entitled to relief under Civ.R. 60(B)(5) because he was
denied his procedural due process rights when the court proceeded with trial in his absence
although trial notice was returned to the court as "unclaimed." Due process requires
" 'notice reasonably calculated, under all the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present their objections.' "
Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 124-25,
No. 18AP-268                                                                                     5


(1986), quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
Although the Ohio Civil Rules of Procedure do not provide for a notice of trial, "[b]oth the
Fourteenth Amendment to the United States Constitution and Section 16, Article I of the
Ohio Constitution guarantee due process of law, and thus guarantee 'a reasonable
opportunity to be heard after a reasonable notice of such hearing.' " Id. at 125, quoting
State ex rel. Allstate Ins. Co. v. Bowen, 130 Ohio St. 347 (1936), paragraph five of the
syllabus. To this end, "Ohio courts have traditionally held that while some form of notice
of a trial date is required to satisfy due process, an entry of the date of trial on the court's
docket constitutes reasonable, constructive notice of that fact." Id. at 124, citing Ries
Flooring Co. v. Dileno Constr. Co., 53 Ohio App.2d 255, 259 (8th Dist.1977); and Metcalf
v. Ohio State Univ. Hosps., 2 Ohio App.3d 166, 167-68 (10th Dist.1981).
       {¶ 14} "As a general rule, 'once a person becomes a party to an action, he has a duty
to check on the proceedings of the court to assure that he will be at the hearings or trial.' "
Coleman v. R&T Invest. Property, 10th Dist. No. 13AP-863, 2014-Ohio-2080, ¶ 12, quoting
Ketchum v. Hoffman, 10th Dist. No. 93APE09-1270 (May 26, 1994), citing Ries Flooring
Co. We have held that the entry of a trial date on the court's docket provides reasonable,
constructive notice of the trial date. Coleman at ¶ 15 (finding that although trial notice sent
to the appellant was returned unclaimed, the appellant had sufficient constructive notice
based on the entry of the trial date on the docket, in addition to actual notice from
magistrate's order and transcript of prior proceedings); Yoder v. Thorpe, 10th Dist. No.
07AP-225, 2007-Ohio-5866, ¶ 16 (finding that "[e]ven if [the appellant] did not receive the
order of reference notifying him of the [date of] trial, he had sufficient constructive notice
of the trial date by virtue of the court's entry of the trial date on its docket"); Leader Ins. Co.
v. Moncrief, 10th Dist. No. 05AP-1289, 2006-Ohio-4232, ¶ 43; Ketchum, quoting Ries
Flooring at 259 (noting that "it has been stated that 'parties are not normally entitled to
notice of a hearing other than the setting of the case on the docket' "); Metcalf at 169 (stating
that the "[p]laintiff must demonstrate that the trial date was not entered upon the trial
docket, and that he therefore had no means of keeping himself advised of the trial date, if
he is to show a due process violation; otherwise, we must presume that the proceedings
below were regular").
No. 18AP-268                                                                                            6


        {¶ 15} In the present case, although the notice of trial date sent to appellant appears
to have been returned to the court as "unclaimed," the record nevertheless reflects appellant
had constructive notice of the trial date based on the court's December 26, 2017 entry of the
trial date on its docket. Appellant makes a number of assertions, both in his February 15,
2018 motion in the trial court and in his appellate brief, regarding the trial court's failure
to notify him of the trial date. However, those statements are unsworn and, therefore, are
outside the scope of evidence for purposes of this appeal. Compare Citibank, N.A. v.
Lapierre, 10th Dist. No. 13AP-30, 2013-Ohio-3016, ¶ 11, quoting Paasewe v. Wendy
Thomas 5 Ltd., 10th Dist. No. 09AP-510, 2009-Ohio-6852, ¶ 22, quoting Poorman v. Ohio
Adult Parole Auth., 4th Dist. No. 01CA16, 2002-Ohio-1059 (stating that appellant's
statement that she was not served was unsworn and therefore, " ' "d[id] not constitute
evidence," ' " as she merely alleged it in her motion to vacate and did not attach an affidavit
or any other form of evidence attesting to the same); and McBroom v. Bob-Boyd Lincoln
Mercury, Inc., 10th Dist. No. 12AP-829, 2013-Ohio-1679, ¶ 12 (finding that trial court did
not abuse its discretion in denying Civ.R. 60(B) motion where the "appellant offer[ed] no
evidence, by affidavit or otherwise, in support of her bare allegations"); with Galbreath v.
Martin, 10th Dist. No. 11AP-348, 2011-Ohio-5852, ¶ 8-10 (finding that the appellant was
entitled to an evidentiary hearing where the appellant filed a motion, supported by an
uncontroverted affidavit, asserting default judgment was entered without proper service of
process); and Nationwide Ins. Co. v. Mahn, 36 Ohio App.3d 251, 252 (10th Dist.1987).
Moreover, appellant does not assert, by affidavit or otherwise, that it was unreasonable to
expect that he would receive mail at the Cannock Lane address.1 Law Offices of James P.
Connors v. Cohn, 10th Dist. No. 08AP-1031, 2009-Ohio-3228, ¶ 14, quoting United Home
Fed. v. Rhonehouse, 76 Ohio App.3d 115, 124 (6th Dist.1991) (stating in the context of the
service of complaint and summons that " '[s]ervice need not be made to the party's actual
address so long as it is made to an address where there is a reasonable expectation that
service will be delivered to the party' ").
        {¶ 16} Appellant also cites to Civ.R. 4.1 in arguing that his due process rights were
violated. However, Civ.R. 4.1 through 4.6 apply to service of process upon the filing of a

1 We note that appellant, in his brief, asserts that the P.O. Box address was a business address, which he

provided, whereas the Cannock Lane address was his home address, which he did not provide. (Appellant's
Brief at 7.)
No. 18AP-268                                                                                 7


complaint, not pleadings or other papers subsequent to the initial complaint. See generally
Austin v. White Castle Sys., Inc., 10th Dist. No. 12AP-1029, 2013-Ohio-5107, ¶ 5, citing
King v. Hazra, 91 Ohio App.3d 534, 536-37 (9th Dist.1993) (stating that "[a]bsent a waiver
of service, a party must be served with the summons and complaint pursuant to the
methods set forth in Civ.R. 4.1 through 4.6").
       {¶ 17} Therefore, under the facts and circumstances of this case, we find that, based
on the entry of the trial date on the docket, appellant received constructive notice sufficient
to satisfy guarantees of due process. Ohio Valley Radiology at 124-25. Even if we were to
construe appellant's February 15, 2018 motion as a motion for relief from judgment
pursuant to Civ.R. 60(B), appellant has failed to demonstrate an abuse of discretion in
denying the requested relief. Accordingly, we overrule appellant's two assignments of error.
IV. Conclusion
       {¶ 18} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Municipal Court.
                                                                         Judgment affirmed.
                            BROWN and HORTON, JJ., concur.
