[Cite as LSF6 Mercury Reo Invests. v. Garrabrant, 2012-Ohio-4883.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

LSF6 MERCURY REO INVESTMENTS                              JUDGES:
                                                          Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                                Hon. William B. Hoffman, J.
                                                          Hon. Sheila G. Farmer, J.
-vs-
                                                          Case No. 11CAE040037
RICK L. GARRABRANT

        Defendant-Appellant                               OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Delaware County Court of
                                                     Common Pleas, Case No. 09CVE121780


JUDGMENT:                                            Dismissed


DATE OF JUDGMENT ENTRY:                              October 12, 2012


APPEARANCES:


For Plaintiff-Appellee                               For Defendant-Appellant


AMY CARR                                             JOHN SHERROD
4805 Montgomery Road, Ste. 320                       2130 Arlington Avenue
Cincinnati, Ohio 45212                               Columbus, Ohio 43221
Delaware County, Case No. 11CAE040037                                                     2

Hoffman, J.


         {¶1}   Defendant-appellant Rick Garrabrant appeals the April 15, 2011 Judgment

Entry entered by the Delaware County Court of Common Pleas, which denied his Civ.

R. 60(B) motion for relief from judgment.         Plaintiff-appellee is LSF6 Mercury Reo

Investments.

                                   STATEMENT OF THE CASE1

         {¶2}   On December 9, 2009, Appellee filed a Complaint for Foreclosure against

Appellant. Appellant was personally served on or about December 23, 2009. Appellant

filed a Motion for Extension of Time to Answer or Otherwise Plead in Order to Mediate

with the Plaintiff/Lender, which the trial court granted. The court-appointed mediator

filed a report on July 21, 2010, advising the trial court the mediation had been

unsuccessful. The trial court issued a scheduling entry, instructing Appellant to file his

Answer no later than August 9, 2010. Rather than file his Answer on the assigned date,

Appellant filed a motion to dismiss, which the trial court denied on October 26, 2010.

Appellant never filed an Answer in this matter.

         {¶3}   On November 17, 2010, Appellee filed a motion for default judgment. The

trial court scheduled an oral hearing on the motion before the magistrate on December

16, 2010. Appellant failed to appear at the hearing. The magistrate filed her decision

granting default judgment in favor of Appellee on December 17, 2010. The trial court

approved and adopted the magistrate’s decision on the same day.              The trial court

issued a Final Judgment Entry on December 21, 2010. Appellant did not file an appeal

from this judgment entry.

1
    A Statement of the Facts is not necessary for our disposition of this Appeal.
Delaware County, Case No. 11CAE040037                                                  3


       {¶4}   A Sheriff’s Sale was conducted on February 16, 2011, and the property

was sold for $116,580. The trial court confirmed the sale and ordered distribution via

Judgment Entry filed March 10, 2011.

       {¶5}   On April 4, 2011, Appellant filed a Motion for Relief from Judgment

Pursuant to Civ. R. 60(B), alleging, as his meritorious defense, Appellee’s lack of

standing. The trial court denied the motion via Judgment Entry filed April 15, 2011.

Appellant filed a timely Notice of Appeal to this Court.

       {¶6}   The appeal was stayed upon Appellant’s filing a petition in bankruptcy.

Via Order filed April 19, 2012, this Court reinstated the case to the active docket.

       {¶7}   It is from the April 15, 2011 Judgment Entry Appellant appeals, assigning

as error:

       {¶8}   “I. THE TRIAL COURT ERRED IN GRANTING APPELLE’S MOTION

FOR DEFAULT JUDGMENT BECAUSE APPELLANT HAD ‘APPEARED’ IN THE

ACTION IN ACCORDANCE WITH CIV.R. 55.

       {¶9}   “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

FOR RELIEF FROM JUDGMENT PURSUANT TO CIV.R. 60(B).”

                                                 II

       {¶10} For ease of discussion, we shall begin by addressing Appellant’s second

assignment of error first.

       {¶11} The decision to grant or deny a motion for relief from judgment pursuant to

Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed

absent an abuse of the discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172. An abuse

of discretion is more than an error of judgment; it means that the trial court was
Delaware County, Case No. 11CAE040037                                                  4

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983),

5 Ohio St.3d 217. An abuse of discretion demonstrates “perversity of will, passion,

prejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd. (1993), 66 Ohio

St.3d 619. When applying the abuse of discretion standard, this Court may not

substitute its judgment for that of the trial court. Id.

       {¶12} Civ.R. 60(B) states, in relevant part:

               “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. The

       motion shall be made within a reasonable time, and for reasons (1), (2)

       and (3) not more than one year after the judgment, order or proceeding

       was entered or taken.”

       {¶13} A party seeking relief from a default judgment pursuant to Civ.R. 60(B)

must show (1) the existence of a meritorious defense, (2) entitlement to relief under one

of the grounds set forth in the rule, and (3) that the motion is timely filed. See GTE
Delaware County, Case No. 11CAE040037                                                     5

Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d

113; Blasco v. Mislik (1982), 69 Ohio St.2d 684, 433 N.E.2d 612.

       {¶14} The December 21, 2010 Final Judgment Entry constituted a final decision

on the merits. Appellant's remedy was to appeal that decision. Appellant did not do so.

Rather, Appellant subsequently filed a Civ. R. 60(B) motion for relief from judgment.

       {¶15} Civ.R. 60(B) was intended to provide relief from a final judgment in

specific, enumerated situations and cannot be used as a substitute for a direct, timely

appeal. See Doe v. Trumbull County Children Services Board (1986), 28 Ohio St.3d

128, 502 N.E.2d 605, at paragraph two of the syllabus. “If a party raises the same

question in a Civ.R. 60(B) motion as [it] could have raised on a direct appeal, [that party]

could get an indirect extension of time for appeal by appealing the denial of the Civ.R.

60(B) motion.” Newell v. White, Pickaway App. No. 05CA27, 2006–Ohio–637, at ¶ 15,

citing Parke–Chapley Construction Co. v. Cherrington (C.A.7, 1989), 865 F.2d 907, 915.

Thus, “[w]hen a Civ.R. 60(B) motion is used as a substitute for a timely appeal, and

when the denial of that motion is subsequently appealed, the proper response is the

dismissal of the appeal.” Garrett v. Gortz, Cuyahoga App. No. 90625, 2008–Ohio–4369,

at ¶ 14, citing State ex rel. Richard v. Cuyahoga Cty. Commrs., 89 Ohio St.3d 205, 729

N.E.2d 755, 2000–Ohio–135. See, also, Elliott v. Smead Mfg. Co., Hocking App. Nos.

08CA13 & 08AP13, 2009–Ohio–3754, at ¶ 12–13.

       {¶16} Accordingly, we reject Appellant’s second assignment of error and dismiss

his appeal.
Delaware County, Case No. 11CAE040037                                              6


                                               I

      {¶17} In light of our disposition of Appellant’s second assignment of error, we

need not address Appellant’s first assignment of error.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER
Delaware County, Case No. 11CAE040037                                         7


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


LSF6 MERCURY REO INVESTMENTS            :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
RICK L. GARRABRANT                      :
                                        :
       Defendant-Appellant              :        Case No. 11CAE040037


       For the reason stated in our accompanying Opinion, this appeal is ordered

dismissed. Costs to Appellant.




                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ W. Scott Gwin _____________________
                                        HON. W. SCOTT GWIN


                                        s/ Sheila G. Farmer __________________
                                        HON. SHEILA G. FARMER
