[Cite as Corley v. Sullivan-Busman, 2013-Ohio-3153.]

                      [Vacated opinion. Please see 2013-Ohio-3909.]

                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99420



                                     VICKY CORLEY
                                                 PLAINTIFF-APPELLEE

                                                       vs.

                      JEROME J. SULLIVAN-BUSMAN
                                                 DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                        Civil Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2010 CVG 003410

            BEFORE:          Blackmon, J., Rocco, P.J., and E.T. Gallagher, J.

            RELEASED AND JOURNALIZED:                        July 18 2013
ATTORNEYS FOR APPELLANT

Peter M. Iskin
Hazel G. Remesch
The Legal Aid Society of Cleveland
1223 West Sixth Street
Cleveland, Ohio 44113


FOR APPELLEE

Vickey Corley, pro se
3837 Grosvenor Road
South Euclid, Ohio 44118
PATRICIA ANN BLACKMON, J.:

      {¶1} Appellant Jerome J. Sullivan-Busman (“Sullivan-Busman”) appeals the

Cleveland Municipal Court’s denial of his motion to vacate the default judgment in favor

of his former landlord, Vicky Corley (“Corley”), and assigns the following errors for our

review:

      I. The trial court erred as matter of law and committed reversible error
      when it: (1) held that, if a landlord elects under Civil Rule 18(A) to join
      in a complaint against a tenant both a Forcible Entry and Detainer
      (“FED”) action and action for money damages for unpaid rent, unpaid
      charges or fees, or other rental agreement violations (“landlord’s action
      for money damages”), the landlord’s action for money damages is an
      FED action or a cause of action arising under R.C. Chapter 1923 and
      therefore subject to Civil Rule 1(C); and (2) thereupon held that the
      service of process for the landlord’s action for money damages is not
      required to comport with the requirements of Civil Rules 4.1 and 4.6
      and therefore entered the Judgment Entry, filed December 19, 2012
      (“Dec. 2012 Judgment Entry”), denying Defendant’s Motion to Vacate
      Judgment, filed April 29, 2011 (“Motion to Vacate”).

      II. The trial court abused its discretion, erred as a matter of law, and
      committed reversible error when it : (1) held that Defendant’s
      uncontradicted sworn statements, in which he stated that he did not
      receive the service of process in this case and he stated related
      supportive facts, do not meet the requirements to vacate the default
      judgment for money damages that the trial court entered against him
      in Judgment Entry, filed April 28, 2010 (“April 2010 Judgment
      Entry”); and (2) therefore entered the Dec. 2012 Judgment Entry,
      denying the Motion to Vacate.

      {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

      {¶3} On February 22, 2010, Corley filed a forcible entry and detainer complaint

in which she asserted a cause of action for back rent. The municipal court sent the

complaint along with the summons to Sullivan-Busman simultaneously by certified and
regular mail. The post office returned the certified mail to the clerk’s office marked

“unclaimed.” The regular mail was not returned.

       {¶4} On April 26, 2010, after Sullivan-Busman had failed to file an answer or

other responsive pleading within 28 days of service, the magistrate conducted a default

hearing.   After presentation of testimony and other evidence, the magistrate granted

judgment to Corley in the amount $3,000 for unpaid rent. On April 28, 2010, the trial

court adopted and approved the magistrate’s decision.

       {¶5} On April 29, 2011, Sullivan-Busman filed a motion to vacate the default

judgment entered in favor of Corley. In the motion, Sullivan-Busman alleged that he

vacated the rental property on February 4, 2010, never received the complaint or

summons, and only became aware of the action on December 2, 2010, when he

was reviewing his credit report.

       {¶6} On December 19, 2012, the trial court denied Sullivan-Busman’s motion to

vacate.    Sullivan-Busman now appeals.




                        Joinder in Forcible Entry and Detainer

       {¶7} In the first assigned error, Sullivan-Busman argues the trial court erred

when it joined Corley’s first cause of action for possession in forcible entry and detainer

with the second cause of action for money damages relating to back rent. As such,

Sullivan-Busman argues the trial court should have granted the motion to vacate the

default judgment.
      {¶8} The decision of a trial court regarding a motion to vacate a judgment will

not be overturned on appeal absent an abuse of discretion. C & W Inv. Co. v. Midwest

Vending, Inc., 10th Dist. No. 03AP-40, 2003-Ohio-4688.           An abuse of discretion

connotes more than an error of law or judgment; it entails a decision that is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983).

      {¶9} In Ohio, R.C. Chapter 1923 governs forcible entry and detainer actions.

Middletown Park Realty, L.L.C. v. Bar BQ Junction, Inc., 12th Dist. No. CA2009-10-258,

2010-Ohio-2171.     The notice to vacate and the service of process in such actions are

governed by R.C. 1923.04 and 1923.06. Machshonba v. Cleveland Metro. Hous. Auth.,

8th Dist. No. 96811, 2011-Ohio-6760. Ordinarily, Civ.R. 4 governs service of process in

all civil actions, however, Civ.R. 1(C) specifically exempts forcible entry and detainer

actions from their purview. Dobbins v. Kalson, 10th Dist. No. 07AP-831, 2008-Ohio-395,

¶ 10, citing Miele v. Ribovich, 90 Ohio St.3d 439, 2000-Ohio-193, 739 N.E.2d 333;

Civ.R. 1(C).

      {¶10} The purpose of the forcible entry and detainer act is to provide a summary,

extraordinary, and speedy remedy for the recovery of possession of real property. State

ex rel. GMS Mgmt. Co. v. Lazzaro, 8th Dist. No. 97875, 2012-Ohio-3961.

       {¶11} In the instant case, Sullivan-Busman argues the trial court should not have

joined Corley’s action for possession with her action for back rent. Sullivan-Busman

contends that Corley’s action for back rent is more properly pursued under the Rules of
Civil Procedure.    However, R.C. 1923.081, regarding joinder of causes of action, states

in pertinent part as follows:

       A trial in an action for forcible entry and detainer for residential
       premises, other than an action against a deceased resident of a
       manufactured home park, or for a storage space at a self-service
       storage facility, as defined in division (A) of section 5322.01 of the
       Revised Code, pursuant to this chapter may also include a trial on
       claims of the plaintiff for past due rent and other damages under a
       rental agreement, unless for good cause shown the court continues the
       trial on those claims.

       {¶12} Thus, R.C. 1923.081 clearly permits joinder of causes of action for

possession, past due rent, and damages, in one trial. See Forney v. Climbing Higher

Ents., Inc., 158 Ohio App.3d 338, 2004-Ohio-4444, 815 N.E.2d 722 (9th Dist.). Further,

as Sullivan-Busman seems to suggest, to require a landlord to obtain service with regard

to restitution of premises pursuant to R.C. 1923.06, but obtain service with regard to any

causes of action for monetary damages pursuant to the Rules of Civil Procedure, though

contained in the same complaint and arising out of the same facts, would sacrifice judicial

economy and undermine the purpose of forcible entry and detainer actions, which is to

provide an inexpensive, summary proceeding.

       {¶13} Based on the foregoing, we find no abuse of discretion in the trial court’s

decision to join both causes of action in the underlying proceeding. Accordingly, we

overrule the first assigned error.

                                     Motion to Vacate

       {¶14} In the second assigned error, Sullivan-Busman argues the trial court erred

when it failed to vacate the default judgment.
       {¶15} Civ.R. 55(B) states that if a trial court enters a default judgment, the court

may set it aside in accordance with Civ.R. 60(B). MCS Acquisition Corp. v. Gilpin, 11th

Dist. No. 2011-G-3037, 2012-Ohio-3018.

       {¶16} A motion for relief from judgment under Civ.R. 60(B) is addressed to the

sound discretion of the trial court, and that court’s ruling will not be disturbed on appeal

absent a showing of abuse of discretion. TPI Asset Mgt., L.L.C. v. Benjamin, 10th Dist.

No. 11AP-334, 2011 Ohio 6389, citing Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514

N.E.2d 1122 (1987). The term “abuse of discretion” connotes more than an error of law

or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable. Blakemore, supra. When applying an abuse-of-discretion standard, an

appellate court may not substitute its judgment for that of the trial court. Deutsche Bank

Natl. Trust Co. v. Oyortey, 10th Dist. No. 11AP-878, 2012 Ohio App. LEXIS 1418

(Apr.10, 2012), citing Berk v. Matthews, 53 Ohio St.3d 161, 559 N.E.2d 1301 (1990).

       {¶17} Civ.R. 60(B) states in pertinent part, 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.

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

must demonstrate the following:
      (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.

BAC Home Loans Servicing L.P. v. Komorowski, 8th Dist. No. 96631, 2012-Ohio-1341,

citing GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d

113 (1976), paragraph two of the syllabus.


      {¶19} In the instant case, in motion to vacate, Sullivan-Busman has not advanced

any specific grounds for relief, but merely states that he vacated the rental property on

February 4, 2010, and never received the complaint. As previously stated, the summons

sent by certified mail was returned marked “unclaimed” and that sent by ordinary mail

was not returned to the clerk’s office. As such, although not stated, we can infer that

Sullivan-Busman neglected to put in a change of address so that his mail could be

forwarded. Thus, we will analyze the motion as if he sought relief under the “excusable

neglect” provision in Civ.R. 60(B)(1).

      {¶20} The term “excusable neglect" is an elusive concept that has been difficult to

define and to apply. Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 1996-Ohio-430,

665 N.E.2d 1102. Unusual or special circumstances can justify neglect, but if the party

could have controlled or guarded against the happening or event he later seeks to excuse,

the neglect is not excusable. Natl. City Bank v. Kessler, 10th Dist. No. 03AP-312,

2003-Ohio-6938, ¶ 14.
       {¶21} “[A] determination of excusable neglect will turn on the facts and

circumstances presented in each case.” Hopkins v. Quality Chevrolet, Inc., 79 Ohio

App.3d 578, 582, 607 N.E.2d 914 (4th Dist.1992), quoting Colley v. Bazell, 64 Ohio St.2d

243, 248, 416 N.E.2d 605 (1980), and Doddridge v. Fitzpatrick, 53 Ohio St.2d 9, 12, 371

N.E.2d 214 (1978). The concept of excusable neglect must be construed in keeping with

the notion that Civ.R. 60(B)(1) is a remedial rule to be construed liberally. Perry v. Gen.

Motors Corp., 113 Ohio App.3d 318, 321, 680 N.E.2d 1069 (10th Dist.1996), citing

Colley at 248.

      {¶22} Here, our review of the record indicates that Sullivan-Busman resided at the

rental property for approximately eight years before he was evicted. After residing in a

property for almost a decade, certainly the average person would have put in a change of

address with the postal service so their mail could be forwarded, whether that mail was a

summons or a greeting card.

      {¶23} Sullivan-Busman, having failed to make any effort in this regard, has not

demonstrated excusable neglect.

       {¶24} Under these circumstances, we find no abuse of discretion in the trial

court’s denial of Sullivan-Busman’s motion to vacate the default judgment. Accordingly,

we overrule the second assigned error.

       {¶25} 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 Cleveland Municipal 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.


PATRICIA ANN BLACKMON, JUDGE

KENNETH A. ROCCO, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
