[Cite as Harris v. Johnson, 2011-Ohio-3102.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



JAMES HARRIS                                      JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 10 CA 22
THOMAS H. JOHNSON, JR.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Case No. 06 CV 00375


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        June 23, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JAMES HARRIS                                   LUIS M. ALCALDE
PRO SE                                         KEGLER BROWN HILL & RITTER
67 South Parkview Avenue                       Suite 1800, 65 East State Street
Columbus, Ohio 43209                           Columbus, Ohio 43215
Perry County, Case No. 10 CA 22                                                        2

Wise, J.

       {¶1}   Defendant-appellant Thomas H. Johnson, Jr. appeals from the December

3, 2010, Judgment Entry entered in the Perry County Court of Common Pleas, denying

his Motion for Relief from Judgment pursuant to Civil Rule 60(B).

       {¶2}   Appellee is the State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   On October 3, 2006 Plaintiff-Appellee, James Harris, (hereinafter "Harris")

filed a Complaint in the Perry County Court of Common Pleas to "Quiet Title" to various

properties. The Complaint, which named over fifty (50) defendants, provided addresses

for service of process for only six (6) of the defendants.

       {¶4}   Defendant-Appellant Thomas Johnson was one of those defendants for

which no address was provided.

       {¶5}   On October 6, 2006, Appellee Harris moved the trial court for permission

to serve by publication those named defendants for which he had provided no

addresses.

       {¶6}   In an affidavit attached to the Motion for Service by Publication, Appellee

Harris generally attested that the residence of certain of the named defendants "cannot

with reasonable diligence be ascertained" and that "he has made a diligent search in

public records, by talking with possible relatives, and checking electronic databases to

determine the name and addresses of the persons named as defendants ... and that he

has provided all of the addresses he was able to find."

       {¶7}   Defendant-Appellant Johnson did not file an answer in this matter and

default judgment was granted. Quiet title was granted in Appellee’s name.
Perry County, Case No. 10 CA 22                                                           3


       {¶8}   On July 8, 2010, Appellant filed a Motion for Relief from Judgment

pursuant to Civil Rule 60(B).

       {¶9}   On July 19, 2010, Appellee filed a Motion in Opposition to Appellant’s

Motion for Relief from Judgment and Affidavit in Support and on August 2, 2010,

Appellant filed a Reply to Appellee’s Motion in Opposition.

       {¶10} On August 6, 2010, the trial court conducted an oral hearing on

Appellant’s motion.

       {¶11} By Judgment Entry filed December 3, 2010, the trial court denied

Appellant’s Motion for Relief from Judgment, finding that there was sufficiency of

process in this matter. The trial court further found that Appellant’s motion for relief was

not timely filed after his discovery of the judgment against him.

       {¶12} It is from this decision that Appellant now appeals, raising the following

assignments of error for review:

                                ASSIGNMENT OF ERROR

       {¶13} “I. THE TRIAL COURT ERRED IN NOT VACATING THE JUDGMENT OF

JANUARY 11, 2007 AND GRANTING DEFENDANT-APPELLANT JOHNSON RELIEF

THEREFROM ON THE BASIS OF LACK OF JURISDICTION.

       {¶14} “II. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT-

APPELLANT JOHNSON RELIEF FROM THE JUDGMENT OF JANUARY 11, 2007

PURSUANT TO CIV.R. 60(B)(5).”

                                           I., II.

       {¶15} Appellant’s Assignments of Error involve the trial court's denial of

Appellant’s motion for relief from judgment under Civ.R. 60(B). Specifically, Appellant is
Perry County, Case No. 10 CA 22                                                              4


arguing that the trial court lacked jurisdiction to grant service by publication and

subsequently lacked jurisdiction to grant default judgment based on defective due

process of service.      Appellant argues that because personal service was insufficient,

the default judgment is voidable under Civ.R. 60(B)(5). We disagree.

         {¶16} A motion for relief from judgment under Civ.R. 60(B) lies within the trial

court's sound discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 514 N.E.2d 1122. In

order to find abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140

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

         {¶18} “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; (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. * * *.”

         {¶19} 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
Perry County, Case No. 10 CA 22                                                            5


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. (1976), 47 Ohio St.2d

146, 351 N.E.2d 113, paragraph two of the syllabus. A failure to establish any one of

these three requirements will cause the motion to be overruled. Rose Chevrolet, Inc. v.

Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564; Argo Plastic Prod. Co. v.

Cleveland (1984), 15 Ohio St.3d 389, 391, 474 N.E.2d 328.

       {¶20} Further, Civ.R. 60(B) “is not available as a substitute for a timely appeal

* * * nor can the rule be used to circumvent or extend the time requirements for an

appeal.” Blasco v. Mislik (1982), 69 Ohio St.2d 684, 686.

       {¶21} Civil Rule 60(B) represents an attempt to strike a proper balance between

the conflicting principles that litigation must be brought to an end and justice should be

done. Colley v. Bazell (1980), 64 Ohio St.2d 243, 248, 416 N.E.2d 605 (citation

omitted).

       {¶22} Here, Appellant asserts that he is entitled to relief from judgment under

Civ.R. 60(B)(5). “[W]e note Civ.R. 60(B)(5) is a catch-all provision that reflects the

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

Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 448 N.E.2d 1365, paragraph

one of the syllabus. The grounds for relief must be substantial. Id. It is to be used only in

extraordinary and unusual cases when the interests of justice warrant it. Adomeit v.

Baltimore (1974), 39 Ohio App.2d 97, 316 N.E.2d 469.” Harrison v. Doerner, Cuyahoga

App. No. 94270, 2010-Ohio-4682, ¶ 18.

       {¶23} Pursuant to Civ.R. 60(B), Appellant must demonstrate a reason to set

aside an entry of the trial court.
Perry County, Case No. 10 CA 22                                                             6


       {¶24} Appellant claims that service of process by publication was defective in

this case because the affidavit filed by Appellee failed to set forth “all of the efforts made

on behalf of the party to ascertain the residence of the defendant.” Appellant further

argues that his address was readily ascertainable in telephone directories, public

records and the county tax records.

       {¶25} When a party challenges the existence or sufficiency of service of

process, the court is “ ‘guided by the premise that service is proper where the civil rules

on service are followed, unless sufficient evidence exists to rebut this principle.’ ”

Bowling v. Grange Mut. Cas. Co., 10th Dist. No. 05AP-51, 2005-Ohio-5924, quoting

Neiswinter v. Nationwide Mut. Fire Ins. Co., 9th Dist. No. 21691, 2004-Ohio3943. “In

determining whether a defendant has sufficiently rebutted the presumption of valid

service, a trial court may assess the credibility and competency of the submitted

evidence demonstrating non-service.” Bowling at ¶ 33.

       {¶26} The trial court below found that Appellee’s Motion and Affidavit for

Publication was sufficient to allow publication in the lower court case. Further, Appellee

provided the trial court a more detailed Affidavit setting forth the efforts he made to

discover the address of Appellant in 2006. Additionally, the trial court found that the tax

bills submitted by Appellant in support of his argument that his address was readily

ascertainable were prepared in February, 2008, well after the default judgment was

granted in this matter.

       {¶27} As Appellant has not filed a transcript of the hearing on his Civ.R. 60(B)

motion, we must presume the validity of the trial court’s findings. "When portions of the

transcript necessary for resolution of assigned errors are omitted from the record, the
Perry County, Case No. 10 CA 22                                                            7


reviewing court has nothing to pass upon and thus, as to the assigned errors, the court

has no choice but to presume the validity of the lower court's proceedings, and affirm."

Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384, 385.

       {¶28} Moreover, we find that Appellant's motion was not timely. In the case sub

judice, Appellant moved for relief under subsection (B)(5) which is “any other reason

justifying relief from the judgment.” Although a Civ.R. 60(B)(5) motion is not subject to

the rule that it be brought within one year after entry of final judgment, and while there is

no fixed time period within which a motion for relief under Civ.R. 60(B)(5) must be

made, the motion still must be made within a “reasonable time.” In re Marriage of

Watson (1983), 13 Ohio App.3d 344, 346, 469 N.E.2d 876. The determination of what

constitutes a reasonable time is within the sound discretion of the trial court. Id. Even

though courts have granted relief from judgment after lengthy delays, it is usually only

under unique circumstances. See, e.g., Taylor v. Haven (1993), 91 Ohio App.3d 846,

849, 633 N.E.2d 1197.

       {¶29} The judgment entry and the record herein, without a transcript, reflect that

Appellant became aware of the default judgment and the transfer of the real property

sometime between 2007-2008. During that time Appellant attempted to pay the taxes

on the property and correct his mailing address on those records. However, Appellant

did not file his motion for relief from judgment until July 8, 2010, approximately 3 ½

years after the default judgment was granted.

       {¶30} Appellant offers no explanation for the significant period of delay between

the time he discovered the default judgment and the time he filed his motion for relief

from judgment.
Perry County, Case No. 10 CA 22                                                       8

       {¶31} In Mt. Olive Baptist Church v. Pipkins Paints & Home Imp. Ctr., Inc.

(1979), 64 Ohio App.2d 285, 289, 413 N.E.2d 850, this Court held that “[a] motion to

vacate a default judgment which is filed nearly seven months after actual notice of the

action and more than four months after default judgment was entered is not, on its face,

a reasonable time within which to file the motion pursuant to Civ. R. 60(B)(5).” This

Court found the delay unreasonable given the lack of any explanation in the record. Id.

Similarly, we are faced with a significant period of delay from actual or constructive

notice, with no real explanation before us in the record.

       {¶32} Based on the foregoing, we find that the trial court did not abuse its

discretion in denying Appellant’s motion for relief from judgment.

       {¶33} Appellant’s assignments of error are overruled.

       {¶34} For the foregoing reasons, the Judgment of the Court of Common Pleas,

Perry County, Ohio, is affirmed.


By: Wise, P. J.

Gwin, J., and

Delaney, J., concur.



                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                 JUDGES
JWW/d 0613
Perry County, Case No. 10 CA 22                                             9


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




JAMES HARRIS                              :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
THOMAS H. JOHNSON, JR.                    :
                                          :
       Defendant-Appellant                :         Case No. 10 CA 22




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Perry County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
