[Cite as U.S. Bank Natl. Assn. v. Bartlett, 2018-Ohio-4082.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


U.S. BANK NATIONAL ASSOCIATION,                           :    OPINION

                 Plaintiff-Appellee,                      :
                                                               CASE NO. 2018-L-023
        - vs -                                            :

JAMES R. BARTLETT, JR., et al.,                           :

                 Defendant-Appellant.                     :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 2015 CF
001889.

Judgment: Affirmed.


Glenn E. Algie and Carrie Lynn Davis, Reisenfeld & Associates, LLC, 3962 Red Bank
Road, Cincinnati, OH 45227 (For Plaintiff-Appellee).

Jon D. Axelrod and Rochelle M. Hellier, Axelrod Law Office, 36615 Vine Street, Suite
102, Willoughby, OH 44094 (For Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, James R. Bartlett, Jr., appeals from the January 3,

2018 Judgment Entry of the Lake County Court of Common Pleas, denying his Motion

for Relief from Judgment. The issue before this court is whether res judicata precludes

consideration of the merits of an appeal from a ruling denying a Civ.R. 60(B) motion

when the appellant failed to file a direct appeal from the underlying default judgment

entry. For the following reasons, we affirm the judgment of the court below.

        {¶2}     On October 30, 2015, plaintiff, Embrace Home Loans, filed a Complaint in
Foreclosure in the Lake County Court of Common Pleas against James and Leah

Bartlett, seeking a money judgment, decree of foreclosure, and sale of the subject

premises, located in Perry, Ohio. The Complaint alleged that the Bartletts were in

default on a Note and owed $273,716.18.

       {¶3}   On March 18, 2016, James Bartlett filed a Notice of Bankruptcy Filing and

the proceedings were stayed.

       {¶4}   On July 13, 2017, a Motion to Substitute plaintiff-appellee, U.S. Bank

National Association, was filed, as it had been assigned the Note and Mortgage.

       {¶5}   Following the conclusion of bankruptcy proceedings, the trial court issued

a July 21, 2017 Order Reactivating Case.

       {¶6}   U.S. Bank filed a Motion for Default Judgment on November 16, 2017, due

to the defendants’ failure to file an answer.

       {¶7}   On November 29, 2017, the trial court issued a Judgment Entry and

Decree of Foreclosure, granting default judgment in favor of U.S. Bank and ordering

foreclosure of the property. On the same date, James Bartlett filed an Answer.

       {¶8}   Bartlett filed a December 12, 2017 Motion for Relief from Judgment, Rule

60(B) and Motion to File an Answer Instanter. The trial court issued a January 3, 2018

Judgment Entry denying the Motion on the ground that no meritorious defense entitling

Bartlett to relief was presented.

       {¶9}   On appeal, Bartlett raises the following assignments of error:

       {¶10} “[1.]   The trial court erred in denying Defendant’s Motion to Vacate

Judgment because the trial court failed to provide Defendant with a hearing notice

according to Rule 55(A) on the Motion for Default Judgment in a case where Defendant

had appeared and where Defendant filed his Answer on the same day as the trial court

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filed its judgment entry and decree of foreclosure.

       {¶11} “[2.]     The trial court erred in denying Defendant’s Motion to Vacate

Judgment under Civ.R. 60(B)(1) or Civ.R. 60(B)(6) (sic) because Defendant believed

that he was responding timely to Plaintiff’s Motion for Default Judgment and

Defendant’s Answer and the Judgment Entry were filed on the same day.

       {¶12} “[3.]     The trial court erred in denying Defendant’s Motion to Vacate

Judgment because the Civil Rules are to be construed as such to allow for cases to be

heard on the merits and Defendant filed his Answer the same day as the trial court filed

its Judgment Entry.”

       {¶13} “An appellate court reviews a judgment entered on a Civ.R. 60(B) motion

for an abuse of discretion.”          (Citation omitted.)     Chase Home Fin., LLC v.

Mentschukoff, 11th Dist. Geauga No. 2014-G-3205, 2014-Ohio-5469, ¶ 18.                 To the

extent that an issue of law is raised in relation to such motion, it is reviewed de novo.

See JP Morgan Chase Bank v. Ritchey, 11th Dist. Lake No. 2014-L-089, 2015-Ohio-

1606, ¶ 16.

       {¶14} Relief may be granted under Civ.R. 60(B) to vacate a court’s judgment

when one of the following grounds are present: “(1) mistake, inadvertence, surprise or

excusable neglect; (2) newly discovered evidence * * *; (3) fraud, * * * misrepresentation

or other misconduct of an adverse party; (4) the judgment has been satisfied, * * * or (5)

any other reason justifying relief from the judgment.” “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




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reasonable time * * *.” GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d

146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.

       {¶15} All three of Bartlett’s errors relate to the denial of his Civ.R. 60(B) Motion.

He argues that default judgment was improper due to his failure to receive notice and

that he could prevail on his motion on the grounds of excusable neglect/surprise.

       {¶16} The doctrine of res judicata applies to bar Bartlett’s claims. Ohio courts

have routinely held that a Civ.R. 60(B) motion to vacate cannot be used as a substitute

for filing a direct appeal and the doctrine of res judicata will apply to such a motion.

Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 16; HSBC Bank

USA, Natl. Assn. v. Bailey, 11th Dist. Trumbull No. 2012-T-0086, 2014-Ohio-246, ¶ 14,

16; Ritchey, 2015-Ohio-1606, at ¶ 20. In the similar case of College Hills Assn. v. TT

Group, LLC, 11th Dist. Lake No. 2014-L-016, 2015-Ohio-1406, the appellant appealed

from the denial of a 60(B) motion, urging error occurred in granting default judgment.

This court, in declining to consider the merits of the appeal, held: “As [appellant] elected

not to appeal the underlying foreclosure judgment and all arguments raised now could

have been raised in a timely appeal, res judicata bars Civ.R. 60(B) relief.” Id. at ¶ 20.

Here, Bartlett failed to file a direct appeal from the court’s November 29, 2017 final

judgment granting the default judgment in favor of U.S. Bank and ordering foreclosure

and improperly used an appeal from a 60(B) denial as a substitute.

       {¶17} The foregoing principles apply “even when the Civ.R. 60(B) motion is filed

within the period for a timely appeal.” (Citation omitted.) Blatt v. Meridia Health Sys.,

8th Dist. Cuyahoga No. 89074, 2008-Ohio-1818, ¶ 11, citing Kelley v. Lane, 103 Ohio

St.3d 432, 2004-Ohio-5582, 816 N.E.2d 599, ¶ 3; see also U.S. Bank v. Blank, 11th

Dist. Ashtabula No. 2014-A-0036, 2015-Ohio-1687, ¶ 3-4, 14.            Thus, although the

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Motion to Vacate was filed only a few weeks after the final judgment of the trial court, it

still does not serve as a substitute for a proper direct appeal from that judgment. Given

this failure to file a direct appeal, Bartlett’s present arguments are barred by the doctrine

of res judicata.

         {¶18} We also note that this court has declined to address the merits of an

appellant’s arguments on appeal where he “provided no reasons in his [Civ.R. 60(B)]

motion as to why he was entitled to relief,” since “an appellate court may not consider

arguments raised for the first time on appeal.” Filby v. Filby, 11th Dist. Geauga No.

2016-G-0101, 2017-Ohio-4377, ¶ 2, 8. Bartlett’s Motion for Relief from Judgment only

described that he had filed an Answer the same day default judgment was granted and

stated that Bartlett “requests this Court to grant him relief from said default judgment or

* * * vacate the default judgment entry * * * so that he may save his home.” It did not

provide a ground for relief under Civ.R. 60(B)(1)-(5) or assert a meritorious defense.

Bartlett’s contentions regarding the lack of notice and “surprise,” now raised on appeal,

were never advanced to the trial court and cannot be raised for the first time before this

court.

         {¶19} The assignments of error are without merit.

         {¶20} For the foregoing reasons, the Judgment Entry of the Lake County Court

of Common Pleas, denying Bartlett’s Motion for Relief from Judgment, is affirmed.

Costs to be taxed against appellant.


CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.


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