[Cite as KY Invest. Properties, L.L.C., 2013-Ohio-1426.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT

KY INVESTMENT PROPERTIES, LLC, )
                               )                           CASE NO. 12 MA 115
      PLAINTIFF-APPELLEE,      )
                               )
      - VS -                   )                                  OPINION
                               )
LINDA ARDITI,                  )
                               )
      DEFENDANT-APPELLANT.     )


CHARACTER OF PROCEEDINGS:                                  Civil Appeal from County Court Area
                                                           No. 2, Case No. 11 CVG 253 BDM.


JUDGMENT:                                                  Affirmed.


APPEARANCES:

For Plaintiff-Appellee:                                    No Brief Filed.

For Defendant-Appellant:                                   Linda Arditi, Pro-se
                                                           1997 Wolosyn Circle, Apt. 5
                                                           Youngstown, OH 44514




JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Gene Donofrio



                                                           Dated: March 26, 2013
[Cite as KY Invest. Properties, L.L.C., 2013-Ohio-1426.]
DeGenaro, P.J.
        {¶1}     Pro-se Defendant-Appellant Linda Arditi appeals from a judgment of the
Mahoning County Court Area No. 2 denying her motion to vacate a judgment granting
money damages to Plaintiff-Appellee KY Investment Properties LLC, in an action for
forcible entry and detainer and damages. Arditi's three arguments are meritless. First,
Arditi failed to file a transcript of the hearing on the first or second causes of action, and
this court must presume the regularity of the proceedings and affirm the trial court's
judgment granting damages to KY Investment. Second, the trial court properly overruled
Arditi's Civ.R. 60(B) motion to vacate the damages order because she failed to allege a
meritorious defense or present evidence demonstrating one of the grounds for relief
under 60(B).       Third, Arditi failed to file a transcript from the garnishment hearing,
precluding appellate review of most of her arguments, and because the relevant statutory
procedures pertaining to the garnishment were followed the remaining arguments are
meritless. Accordingly, the judgment of the trial court is affirmed.
                                   Facts and Procedural History
        {¶2}     On March 15, 2011, KY Investment filed a complaint against Arditi for
forcible entry and detainer with a second cause of action for unpaid rent, late fees and
property damages. KY Investment served Arditi with a three-day written notice to vacate
the premises on February 24, 2011, a copy of which was attached to the complaint. Arditi
was served with the complaint via residence service when the summons was posted on
the front door of her apartment residence, and she filed an answer on March 3, 2011.
        {¶3}     The matter came for hearing on the writ of possession before the
magistrate. KY Investment appeared with counsel and Arditi failed to appear. Sworn
testimony was taken and the magistrate issued a writ of possession, which was adopted
by the trial court. No objections were filed with the trial court, nor was a notice of appeal.
Arditi did not file a transcript of this hearing for the appellate record.
        {¶4}     The case proceeding to a hearing on the damages on October 21, 2011.
Again KY Investment appeared with counsel, but Arditi failed to appear. The magistrate
heard testimony and considered exhibits, and issued a decision granting KY Investment
judgment. Arditi filed objections which the trial court overruled on November 15, 2011,
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entering judgment for KY Investment for $1,575.00 plus costs. Arditi failed to file a
transcript of this hearing with her objections and with her appeal.
       {¶5}   On December 13, 2011, KY Investment commenced garnishment
proceedings to collect its judgment. Specifically, it moved the court to order garnishment
against two of Arditi's banks, PNC Bank and Cortland Bank, for money, property or credits
other than personal earnings. These were accompanied by affidavits by KY Investment's
attorney as required by R.C. 2716.11. Orders of garnishment were issued by the trial
court. Cortland Bank filed a no-money answer. PNC Bank answered on December 19,
2011, stating that it had $899.52 of Arditi's money, property or credits other than personal
earnings on deposit at the bank. PNC deposited the $899.52 with the court to be held
until the case was resolved.
       {¶6}   On January 3, 2012, Arditi requested a hearing on the garnishment and
moved the trial court, pursuant to Civ.R. 60(B), to vacate its November 15, 2011 order
awarding damages to KY Investments. She also requested the trial court stay execution
of the damages order. As grounds, she stated she was out of town for college when the
hearing on the second cause of action was scheduled. She failed to allege a meritorious
defense in her motion. KY Investment filed a brief in opposition and the matter was set
for a non-oral hearing on February 27, 2012. On the morning of February 27, 2012, Arditi
filed a motion to continue the non-oral hearing.
       {¶7}   The magistrate proceeded to decide the motion to vacate on February 27,
2012, overruling Arditi's motion for continuance as untimely. The magistrate overruled
the motion to vacate, noting that Arditi failed to establish she was entitled to relief under
any of the grounds set forth in Civ.R. 60(B)(1)-(5) and further failed to allege a meritorious
defense. The magistrate also overruled the stay request and reset the garnishment
hearing for March 12, 2012.
       {¶8}   On March 5, 2012, Arditi filed a motion to continue the garnishment hearing,
which was overruled by the trial court, finding that the garnishment hearing had been
pending for over two months and that Arditi's attempts to seek further continuances were
deemed an unwarranted delay of the proceedings.
                                                                                       -3-


       {¶9}   On March 12, 2012, the case was called for a hearing on the garnishment.
KY Investment appeared with counsel and Arditi failed to appear. In a decision dated the
same day, and adopted by the trial court on March 27, 2012, the magistrate noted that
Arditi had filed objections to the magistrate's February 27, 2012 decision denying Arditi's
Civ.R. 60(B) motion to vacate the damages order. In light of that, the magistrate
continued the garnishment hearing pending a ruling from the trial court on the objections.
On May 5, 2012, the trial court issued a judgment overruling Arditi's objections to the
magistrate's decision denying her motion to vacate.           The trial court ordered the
garnishment hearing to be set.
       {¶10} On June 4, 2012 the case finally came for a garnishment hearing before the
magistrate. KY Investment appeared with counsel and Arditi failed to appear. On that
date the magistrate issued a decision concluding that the garnishment was proper and
ordering any funds on deposit to be released to KY Investment by the clerk. On June 15,
2012, Arditi filed objections. The trial court never ruled on Arditi's objections to the
magistrate's garnishment decision.
       {¶11} Also on June 15, 2012, Arditi perfected a notice of appeal with this court,
listing a March 27, 2012 judgment as the order being appealed. On October 17, 2012,
this court issued a limited remand for the trial court to rule on Arditi's objections to the
magistrate's decision on the garnishment. On November 16, 2012, the trial court issued a
judgment entry overruling Arditi's objections, finding that the garnishment was proper.
The court ordered the funds on deposit to be released by the clerk. Arditi also failed to
file a transcript of this hearing with her objections or this appeal.
                    Timeliness of Appeal and Record Deficiencies
       {¶12} Several of Arditi's arguments challenge the eviction and resulting money
judgment and the trial court's denial of her motion to vacate the money judgment. First,
we must determine whether Arditi's appeal is timely, as there are multiple judgment
entries her arguments challenge; April 4, 2011, ordering possession of the premises:
November 15, 2011, granting damages; and May 8, 2012 denying Arditi's motion to
vacate. Arditi's notice of appeal was filed June 15, 2012 when she filed a paper copy with
                                                                                                             -4-


the trial court.1
          {¶13} App.R. 4(A) provides that "[a] party shall file the notice of appeal required by
App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a
civil case, service of the notice of judgment and its entry if service is not made on the
party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure."
          {¶14} At first blush, it would appear Arditi's notice of appeal was untimely because
it was filed over 30 days after the May 8, 2012 entry overruling the motion to vacate.
However, there are no docket entries indicating that either the April 4, 2011, November
15, 2011 or the May 8, 2012 judgment entries were ever served to the parties by the
clerk. The judgment entries themselves also lack any direction to the clerk to serve
notice.
          {¶15} In In re Anderson, 92 Ohio St.3d 63, 67, 748 N.E.2d 67 (2001), the
Supreme Court of Ohio held that where the trial court never endorsed upon the judgment
entry the required "direction to the clerk to serve upon all the parties * * * notice of the
judgment and its date of entry upon the journal" pursuant to Civ.R. 58(B), and the trial
court docket contained no indication that appellant was ever served with notice, the time
for filing a notice of appeal never began to run because the trial court failed to comply
with Civ.R. 58(B). Anderson at 67. Following the holding in In re Anderson, the appeal
time in the present case never began to run and therefore Arditi's appeal was timely filed.
          {¶16} Turning then to the merits of the appeal, Arditi's brief does not assign any
errors as directed by the Appellate Rules. Rather, she lists a number of legal issues and
statutes that she feels are implicated by the trial court's judgment, including general
landlord-tenant law, the Fair Debt Collection Practices Act and other statutes and
constitutional provisions. Because Arditi's brief does not comport with App.R. 16(A)(4)
and (7), this court could decline to address her arguments for that reason; but we will do

1
  The trial court clerk properly rejected Arditi's earlier attempts to perfect the appeal by electronic (facsimile)
filing. In Louden v. A.O. Smith Corp., 121 Ohio St.3d 95, 2009-Ohio-319, 902 N.E.2d 458, the Supreme
Court of Ohio held that "filing an appeal requires an appellant to present a paper copy of the notice of appeal
to the clerk of the trial court, unless a [local] rule of appellate procedure expressly permits the notice of
appeal to be filed electronically." Id. at ¶1; see, also, App.R. 3(A). Otherwise, the electronically filed notice
of appeal is "invalid." Louden at ¶33.
                                                                                        -5-


so in the interest of justice.
       {¶17} Arditi failed to appear at any of the hearings below, despite the fact that she
was properly served with notice. Moreover, Arditi failed to file transcripts of any of the
hearings before the magistrate and/or trial court. Absent a trial transcript, we must
presume the regularity of the proceedings. See Knapp v. Edwards Laboratories, 61 Ohio
St.2d 197, 199, 400 N.E.2d 384 (1980). Accordingly, the trial court's judgment granting
damages is affirmed.
                                        Motion to Vacate
       {¶18} Because Arditi's motion to vacate the order granting damages was resolved
without a hearing, a lack of transcript is not fatal to this alleged error. To prevail upon a
Civ.R. 60(B) motion for relief from judgment, the movant must demonstrate: 1) a
meritorious defense or claim to present if relief is granted; 2) the movant 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, 351 N.E.2d
113 (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, 637 N.E.2d 914 (1994).
       {¶19} A trial court's decision concerning a Civ.R. 60(B) motion for relief from
judgment will not be reversed unless the trial court abuses its discretion. Strack at 174.
The term "abuse of discretion" constitutes more than an error of judgment; it implies the
trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
       {¶20} Arditi completely failed to allege a meritorious defense in her 60(B) motion;
that alone defeats her motion. Further, her contention that she failed to appear at the
hearing because she was out of town for college does not constitute excusable neglect.
Excusable neglect is not present if the party could have prevented the circumstances
from occurring. Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 706 N.E.2d 825 (1997).
                                                                                          -6-


"[C]ourts must not let Civ.R. 60(B) serve as an emasculation of the pleading rules and
time limits." Fifth Third Bank v. Perry, 7th Dist. No. 03 MA 100, 2004-Ohio-1543, ¶12.
Arditi's reason for failing to appear does not meet this standard.
         {¶21} The trial court's decision overruling Arditi's objections and denying the
motion to vacate was reasonable as Arditi failed to meet two of the GTE elements.
Accordingly, the trial court's judgment denying Civ.R. 60(B) relief is affirmed.
                                        Garnishment
         {¶22} Arditi also challenges the trial court's order garnishing her bank accounts.
Her main challenge to the garnishment seems to be her insistence that the trial judge's
signature on the garnishment order was forged. However, this allegation is based upon
Arditi's own suppositions, and not on any actual evidence in the record. Moreover, Arditi
requested a hearing, but failed to appear at the hearing and further failed to provide a
transcript of that hearing for inclusion in the appellate record. Pursuant to Knapp, we
must presume the regularity of those proceedings and reject Arditi's arguments on that
basis.
         {¶23} Moreover, a review of the record that is available for review reveals that the
garnishment was handled in accordance with the applicable law.
         {¶24} R.C. 2716.11 provides:

                A proceeding for garnishment of property, other than personal
         earnings, may be commenced after a judgment has been obtained by a
         judgment creditor by the filing of an affidavit in writing made by the
         judgment creditor or the judgment creditor's attorney setting forth all of the
         following:
                (A) The name of the judgment debtor whose property the judgment
         creditor seeks to garnish;
                (B) A description of the property;
                (C) The name and address of the garnishee who may have in the
         garnishee's hands or control money, property, or credits, other than
                                                                                       -7-


       personal earnings, of the judgment debtor.

       {¶25} R.C. 2716.11 was followed in this case. KY Investment commenced
garnishment proceedings to collect its judgment by moving the court for an order of
garnishment against two of Arditi's banks, PNC Bank and Cortland Bank, for money,
property or credits other than personal earnings. These were accompanied by affidavits
by KY Investment's attorney as required by R.C. 2716.11.
       {¶26} R.C. 2716.13 provides further procedures governing garnishments of
property other than personal earnings. Section (A) provides that "upon a filing of a
proceeding in garnishment of property, other than personal earnings, under section
2716.11 of the Revised Code, the court shall cause the matter to be set for hearing within
twelve days after that filing." R.C. 2716.13(A). Section (B) provides that once the matter
is set for hearing, the clerk of court shall, inter alia, immediately issue to the garnishee
(bank) three copies of the garnishment order and a written notice that the garnishee
answer, which should substantially follow the form provided in the Revised Code. R.C.
2716.13(B). The garnishment "order shall bind the property in excess of four hundred
dollars, other than personal earnings, of the judgment debtor in the possession of the
garnishee at the time of service." Id. Section (C) provides a procedure for the judgment
debtor to be notified of the garnishment and to request a hearing. R.C. 2716.13(C).
       {¶27} R.C. 2716.13 was followed in this case. Orders of garnishment were issued
by the trial court. Cortland Bank filed a no-money answer. PNC Bank answered on
December 19, 2011, stating that it had $899.52 of Arditi's money, property or credits other
than personal earnings on deposit at the bank. PNC deposited the $899.52 with the court
to be held until the case was resolved. Arditi requested a hearing, but failed to appear.
Thus, Arditi's arguments concerning the garnishment are also meritless.
       {¶28} In conclusion, Arditi's arguments are meritless. Because Arditi failed to file
transcripts of the pertinent hearings this court must presume the regularity of the
proceedings and affirm the trial court's judgment granting damages to KY Investment.
Further, the trial court properly overruled Arditi's Civ.R. 60(B) motion to vacate the
                                                                                    -8-


damages order; Arditi did not provide evidence of excusable neglect for failing to appear
at the hearings and further failed to allege a meritorious defense. Arditi's arguments
concerning the garnishment are also meritless as all of the relevant statutory procedures
were followed, in addition to having failed to file a transcript of that hearing as well.
Accordingly, the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.
