[Cite as McBenttes v. AMM Properties, L.L.C., 2016-Ohio-7951.]


STATE OF OHIO                    )                       IN THE COURT OF APPEALS
                                 )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

AMM PROPERTIES, LLC                                      C.A. No.   28204

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
OSCAR MCBENTTES, et al.                                  COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Appellants                                       CASE No.   CV-2015-04-2323

                                DECISION AND JOURNAL ENTRY

Dated: November 30, 2016



        WHITMORE, Presiding Judge.

        {¶1}    Oscar McBenttes and Top it Off, LLC have appealed a judgment of the Summit

County Court of Common Pleas that denied their motion for relief from judgment. This Court

affirms.

                                                    I.

        {¶2}    AMM Properties, LLC (“AMM”) filed a complaint against Mr. McBenttes and

Top it Off, alleging that they breached their lease of a commercial suite. When Mr. McBenttes

and Top it Off did not file an answer, AMM moved for default judgment. The trial court granted

its motion on June 24, 2015. A couple of months later, the court amended its judgment nunc pro

tunc to correct the spelling of Mr. McBenttes’s last name.

        {¶3}    On March 1, 2016, Mr. McBenttes and Top it Off moved for relief from

judgment. They argued that they had a meritorious defense because AMM breached the lease

first by failing to perform its obligations. Mr. McBenttes also alleged that he was not a party to
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the lease. Mr. McBenttes and Top it Off argued that relief was appropriate under Civ.R.

60(B)(5) because, even though their legal counsel had negotiated with AMM before the lawsuit

was filed, they did not receive notice of the motion for default judgment under Civ.R. 55. They

further argued that they had filed their motion within a reasonable time. The trial court denied

the motion, however, concluding that Mr. McBenttes and Top it Off had failed to demonstrate

any reason justifying relief or that their motion was timely filed. Mr. McBenttes and Top it Off

have appealed, assigning as error that the trial court incorrectly denied their motion for relief

from judgment.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY DENYING APPELLANTS’ MOTION FOR
       RELIEF FROM SUMMARY JUDGMENT.

       {¶4}   Mr. McBenttes and Top it Off have argued that they were entitled to relief from

the trial court’s judgment under Civ.R. 60(B)(5). That rule provides that “[o]n 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 * * * any * * * reason justifying relief from the judgment.”

Civ.R. 60(B)(5).

       To prevail on a motion brought under Civ.R. 60(B), 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 * * *.

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of

the syllabus. “These requirements are independent and in the conjunctive; thus the test is not

fulfilled if any one of the requirements is not met.” Strack v. Pelton, 70 Ohio St.3d 172, 174

(1994). “A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound
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discretion of the trial court, and that court’s ruling will not be disturbed on appeal absent a

showing of abuse of discretion.” Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987). An abuse of

discretion implies that the trial court was unreasonable, arbitrary, or unconscionable in its ruling.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶5}    We will begin by considering the timing of the motion for relief from judgment,

because it is dispositive. As previously noted, Civ.R. 60(B) provides that a motion under Civ.R.

60(B)(5) must be “made within a reasonable time * * * after the judgment * * * was entered[.]”

What constitutes reasonable time depends on the facts of the case. Wells Fargo Bank, N.A. v.

Clucas, 9th Dist. Summit No. 27264, 2015-Ohio-88, ¶ 13. The movant, however, “must offer

some operative facts or evidential material demonstrating the timeliness of his or her motion.”

Id., quoting McFall v. McFall, 9th Dist. Summit No. 26418, 2013-Ohio-2320, ¶ 14.

       {¶6}    The trial court entered default judgment against Mr. McBenttes and Top it Off on

June 24, 2015. They did not file their Civ.R. 60(B) motion until March 1, 2016, which was over

eight months later. In their motion, Mr. McBenttes and Top it Off did not explain the reason that

it took eight months for them to move for relief from judgment. They only argued that their

motion should be considered timely because no collection action had been taken against them

and because granting the motion would not unduly prejudice AMM. There is no indication in

the record that they were unaware of the proceedings or did not receive notice of the trial court’s

judgment. See Clucas at ¶ 14. In their brief, Mr. McBenttes and Top it Off argue that the trial

court should not have “defaulted to a conclusion of an untimely filing without any facts in the

records demonstrating the filing was untimely.” It was their obligation, however, to demonstrate

that the motion was filed within a reasonable time. See id. at ¶ 13, Eubank v. Mardoian, 9th

Dist. Lorain No. 11CA009968, 2012-Ohio-1260, ¶ 9. Upon review of the record, we conclude
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that it was not an abuse of discretion for the trial court to determine that Mr. McBenttes’s and

Top it Off’s motion for relief from judgment was not filed within a reasonable time. Mr.

McBenttes’s and Top it Off’s assignment of error is overruled.

                                                III.

       {¶7}    Mr. McBenttes’s and Top it Off’s assignment of error is overruled. The judgment

of the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                       BETH WHITMORE
                                                       FOR THE COURT
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HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

DARREN W. DEHAVEN, Attorney at Law, for Appellants.

R. SCOTT HALEY, Attorney at Law, for Appellee.
