[Cite as Claycraft Motors, L.L.C. v. Bulldog Auto Sales, Inc., 2014-Ohio-2086.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                              JUDGES:
CLAYCRAFT MOTORS, LLC.                                :       Hon. W. Scott Gwin, P.J.
                                                      :       Hon. John W. Wise, J.
                         Plaintiff-Appellant          :       Hon. Patricia A. Delaney, J.
                                                      :
-vs-                                                  :
                                                      :       Case No. 13-CA-70
BULLDOG AUTO SALES, INC.,ET AL                        :
                                                      :
                   Defendants-Appellees               :       OPINION




CHARACTER OF PROCEEDING:                                  Civil appeal from the Fairfield County Court
                                                          of Common Pleas, Case No. 2011 CV
                                                          01002



JUDGMENT:                                                 Affirmed




DATE OF JUDGMENT ENTRY:                                   May 12, 2014



APPEARANCES:

For Plaintiff-Appellant                                   For Defendants-Appellees

DAVID A. SKROBOT                                          STEVEN KOKENSPARGER
JOHN RIDGE                                                KOKENSPARGER & RYAN, LLC
BRETT SHERAW                                              140 Mill Street, Suite B
FISHER, SKROBOT & SHERAW, LLC                             Gahanna, OH 43004
471 East Broad St., Ste. 1810
Columbus, OH 43215
[Cite as Claycraft Motors, L.L.C. v. Bulldog Auto Sales, Inc., 2014-Ohio-2086.]


Gwin, P.J.

        {¶1}     Appellant appeals the May 8, 2012 judgment entry by the Fairfield County

Court of Common Pleas and the September 13, 2013 judgment entry clarifying the May

8th judgment entry and granting appellees’ motion to vacate judgment.

                                           Facts & Procedural History

        {¶2}     On October 5, 2011, appellant Claycraft Motors, LLC, filed a complaint

against appellees Bulldog Auto Sales, Inc. and its owner, Theodore Johnson

(“Johnson”), for monies due and owing over the sale of motor vehicles to appellees.

Appellant alleged appellees agreed to purchase five motor vehicles from appellant and

appellees failed to pay for the vehicles after appellant delivered them. On October 7,

2011, certified mail receipts were returned to the Fairfield County Clerk of Courts and

the notation on the docket indicates the signature was illegible on each receipt.

Appellant filed a motion for default judgment on November 17, 2011 and included the

affidavit of James Hornberger, a member of appellant’s LLC.                       Hornberger stated

appellant entered into several contracts where appellees agreed to purchase motor

vehicles from appellants. Further, appellant delivered the vehicles to appellees and

appellees failed to pay for five vehicles for a total of $39,800. By judgment entry filed

the same date, the trial court granted the motion and found in favor of appellant in the

amount of $39,800, plus interest and costs.

        {¶3}     In January of 2012, the trial court issued an order setting a judgment

debtor examination for February 27, 2012. On February 23, 2012, Johnson filed a pro

se motion to continue the debtor’s exam to obtain counsel. The trial court granted the

motion to continue on February 24, 2012.
Fairfield County, Case No. 13-CA-70                                                   3


      {¶4}   On April 20, 2012, appellees filed a motion to vacate judgment pursuant to

Civil Rule 60(B). In their motion, appellees argued no certified or personal service was

completed on appellees and that they had a meritorious defense, i.e. payment, to the

complaint. Attached to appellees’ motion was the affidavit of Johnson. Johnson stated

he did not receive actual notice of the filing of the complaint that led to the default

judgment and was never notified of a hearing on the complaint or damages. Johnson

said he was unaware of the filing of the complaint or the default judgment until January

of 2012. Johnson alleged he and Bulldog Auto Sales, Inc. had a meritorious defense to

the complaint because he paid appellant for the vehicles.            Appellant filed a

memorandum in opposition to appellees’ motion to vacate on May 7, 2012.

      {¶5}   The trial court held an evidentiary hearing on May 7, 2012.       Johnson

testified at the hearing and stated he did not sign for the complaint and was not sure

who did. Further, that the service to him personally was sent to the business address

and not his home address. Johnson stated, at the time the complaint would have been

served on him, he was involved in a contested divorce and was served with multiple

legal papers with regard to the divorce case. Johnson testified the 2003 BMW M3 was

never delivered to him by appellant, the 2003 Chevrolet diesel truck was a title swap so

no checks were exchanged between the parties, he paid for both a 2008 Ford Escape

and a 2000 Chevy Tahoe, and appellant refused to pick up a 2008 ATV after appellees

determined they were not going to purchase the vehicle.

      {¶6}   The trial court granted appellees’ motion on May 8, 2012 and vacated the

default judgment. The trial court found the Rule 60(B) motion to be timely and found

appellees have meritorious defenses to the claims presented. Further, the interests of
Fairfield County, Case No. 13-CA-70                                                     4


justice warrant the use of the Civil Rule 60(B)(5) catch-all provision. The trial court

found it did not need to address Civil Rule 60(B)(1) since appellees were entitled to

relief pursuant to Civil Rule 60(B)(5). Appellant appealed the May 8, 2012 judgment

entry to this Court. In Claycraft Motors, LLC, v. Bulldog Auto Sales, Inc., Delaware No.

12-CA-29, 2013-Ohio-1048, we reversed the trial court’s decision and remanded the

matter to the trial court to clarify which defendant[s] was granted relief. On September

13, 2013, the trial court issued a judgment entry clarifying that it was the trial court’s

intention to vacate the default judgment as to both Johnson and Bulldog Auto Sales,

Inc.

         {¶7}   Appellant appeals the May 8, 2012 and September 13, 2013 judgment

entries of the Fairfield County Court of Common Pleas and assigns the following as

error:

         {¶8}   “I. THE TRIAL COURT ERRED IN GRANTING THEODORE JOHNSON

AND BULLDOG AUTO SALES, INC.’S MOTION TO VACATE JUDGMENT BECAUSE

CIV.R. 60(B)(5) WAS USED BY THE TRIAL COURT TO GRANT RELIEF EVEN

THOUGH APPELLEES FAILED TO PROTECT THEIR INTERSTS OR PARTICIPATE

IN THE LEGAL PROCESS, NO EXTRAORDINARY CIRCUMSTANCES WERE

ALLEGED AND THE MOTION TO VACATE WAS NOT TIMELY FILED.”

                                                I.

         {¶9}   The order from which appellant has appealed vacated the earlier judgment

granted by the trial court. This Court, therefore, has jurisdiction pursuant to Section

2505.02(B)(3) of the Ohio Revised Code. The decision whether to grant a motion for

relief from judgment under Civ.R. 60(B) lies within the trial court’s sound discretion.
Fairfield County, Case No. 13-CA-70                                                        5

Griffey v. Rajan, 33 Ohio St.3d 75, 514 N.E.2d 1122 (1987). In order to find abuse of

discretion, we must determine the trial court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶10} Civil Rule 60(B) provides, “on motion and upon such terms as are just, the

court may relieve a party * * * from a final judgment, order or proceedings for the

following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * or (5)

any other reason justifying relief from judgment. The motion shall be made within a

reasonable time, and for reasons (1), (2), and (3) not more than one year after the

judgment * * * was entered to taken.” Civil Rule 60(B). A party seeking relief from

judgment pursuant to Civ.R. 60(B) must show: “(1) a meritorious defense or claim to

present if relief is granted; (2) entitlement to relief under one of the grounds set forth in

Civ.R. 60(B)(1)-(5); and (3) the motion must be timely filed.” GTE Automatic Electric,

Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 at paragraph two of syllabus, 351 N.E.2d

113 (1976). Further, “where timely relief is sought from a default judgment and the

movant has a meritorious defense, doubt, if any, should be resolved in favor of the

motion to set aside the judgment so that cases may be decided on their merits.” Id.

       {¶11} In this case, there is no dispute that appellees set forth a meritorious

defense. Johnson testified he paid for the vehicles at issue, either by check or with a

title swap, and introduced Exhibit A, a check for payment of one of the vehicles at issue.

                                       Timeliness of Motion

       {¶12} Appellant argues appellees’ motion was not timely because the motion

was filed more than six months after the complaint and summons were served and

more than five months after default judgment was granted. We disagree.
Fairfield County, Case No. 13-CA-70                                                         6


       {¶13} A Civ.R. 60(B)(5) motion must be made within a reasonable time, but the

rule does not specify what qualifies as a reasonable time. Zwahlen v. Brown, 1st Dist.

Hamilton No. C-070263, 2008-Ohio-151.          The determination as to what constitutes

reasonable time is for the trial court to determine in the exercise of sound discretion.

Robinson v. Miller Hamilton Venture, LLC, 12th Dist. Butler No. CA2010-09-226, 2011-

Ohio-3017.

       {¶14} In this case, Johnson testified he learned of the default judgment against

him in January of 2012 and, soon after he got the notice of the debtor’s exam, filed a

motion to continue the February 2012 debtor’s exam in order to obtain counsel and

determine how to address the complaint filed in October of 2011 and the default

judgment in November of 2011. Counsel for appellees subsequently filed the motion to

vacate on April 20, 2012, less than two months after appellees’ motion to continue the

debtor’s exam.     Johnson testified that, during this time, he was going through a

complicated divorce proceeding. Upon review of the record and in light of the evidence

presented for the trial court’s consideration, we find appellant failed to establish the trial

court’s conclusion that appellees’ motion to vacate was made within a reasonable time

constituted an abuse of discretion.

                                              60(B)(5)

       {¶15} Appellant contends the trial court improperly utilized Civ.R. 60(B)(5) as a

substitute for a specific provision in Civ.R. 60(B)(1)-(4), appellees failed to defend their

interests, and the failure to timely file an answer in this case does not rise to the level of

extraordinary circumstances as required by Civ.R. 60(B)(5). We disagree.
Fairfield County, Case No. 13-CA-70                                                    7


      {¶16} Civil Rule 60(B)(5) operates as a catch-all provision and “reflects the

inherent power of a court to relieve a person from the unjust operation of a judgment.”

Dutton v. Potroos, 5th Dist. No. 2010CA00318, 2011-Ohio-3646. However, it is not to

be used as a substitute for any of the other more specific provisions of Civ.R. 60(B) and

the grounds for invoking Civ.R. 60(B)(5) should be substantial. Caruso-Ciresi, Inc. v.

Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983). It is to be used in extraordinary and

unusual cases when the interests of justice warrant it. Adomeit v. Baltimore, 39 Ohio

App.2d 97, 316 N.E.2d 469 (8th Dist. 1974). Some courts have granted relief under

Civ.R. 60(B)(5) for failure of service. Lade v. Wheeler, 12th Dist. Clermont No. CA99-

10-096, 2000 WL 525717 (May 1, 2000); Steinhoff v. Nyerghes, 8th Dist. Cuyahoga No.

76096, 2000 WL 336521 (March 30, 2000); Rafalski v. Oates, 17 Ohio App.3d 65, 477

N.E.2d 1212 (8th Dist. 1984); Rogers v. United Presidential Life Ins. Co., 36 Ohio

App.3d 126, 521 N.E.2d 845 (10th Dist. 1987).

      {¶17} In this case, appellees attached to their motion to vacate the sworn

affidavit of Johnson stating he did not receive service of the complaint against him. At

the evidentiary hearing on appellees’ motion, Johnson testified he was not properly

served with the complaint and he did not receive any actual notice of the action against

him at the time the default judgment was granted.        Johnson stated he was going

through a difficult and contested divorce at the time appellant’s complaint was filed and

the default judgment was granted. Johnson was being served with multiple documents

on a regular basis for his divorce, but stated he did not receive notice of appellant’s

complaint. Johnson could not tell who signed for the complaint and the Clerk of Courts
Fairfield County, Case No. 13-CA-70                                                        8


noted on the docket that the signatures on the certified mail return receipts for appellees

were illegible.

       {¶18} Appellant opposed the motion to vacate and stated it obtained valid

service on appellees because they complied with the civil rules. However, appellant did

not contradict Johnson’s testimony that appellees never received actual service of the

complaint and were unaware of the pendency of the case until January of 2012.           The

trial court was faced with competing interests in ruling on the motion. “On one hand is

the principle of finality of judgment and the non-moving party’s right to have his

judgment enforced. On the other hand is the principle that cases should be decided on

their merits and the right of all parties to be heard.”       Robinson v. Miller Hamilton

Venture, LLC, 12th Dist. Butler No. CA2010-09-226, 2011-Ohio-3017. The trial court

was in the best position to balance these competing interests. Further, the trial court’s

reference to Civ.R. 60(B)(5) pertained to a ground not contained in Civ.R. 60(B)(1). See

American Select Ins. Co. v. Riggs, 10th Dist. Franklin No. 01AP-380, 2007-Ohio-1808.

Based on the facts and circumstances in this case, we find the trial court did not abuse

its discretion in finding an extraordinary or unusual situation to warrant the application of

Civ.R. 60(B)(5).
Fairfield County, Case No. 13-CA-70                                                    9


      {¶19} Accordingly, because the trial court did not abuse its discretion by granting

relief from judgment, appellant’s assignment of error is overruled. The May 8, 2012

judgment entry by the Fairfield County Court of Common Pleas and the September 13,

2013 judgment entry clarifying the May 8th judgment entry are affirmed.



By Gwin, P.J.,

Wise, J., and

Delaney, J., concur
