COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60754 OHIO SAVINGS BANK : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DENNIS L. JEFFERS, ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT : OF DECISION : JUNE 4, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 185,672 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendants-appellants: TIMOTHY BILLICK, ESQ. HAROLD POLLOCK, ESQ. 1801 East Ninth Street 1707 Terminal Tower 16th Floor Cleveland, Ohio 44113 Cleveland, Ohio 44114 - 2 - J.F. CORRIGAN, P.J., Appellants, Dennis and Patricia Jeffers, appeal from the order of the trial court denying their motion to vacate default judgment, and denying their motion for re-appraisal. For the reasons set forth below, we affirm. I. Appellee, Ohio Savings Bank, commenced this foreclosure suit against appellants on March 2, 1990, naming as additional defendants, Van P. Carter, United Consumers Savings Agency, Hunter Liquid Handling, National City Bank, and Keister, Radice & Co. Appellee is mortgagee of appellants' residence at 511 Bradley Road in Bay Village, Ohio. Appellants never filed an answer in this action. On June 26, 1990, appellee moved for default judgment against appellants. Appellants did not respond to this motion. In an order dated August 6, 1990, the trial court granted judgment in favor of appellee. On September 24, 1990, appellants filed a motion for relief from the August 6, 1990 judgment. On the same date, appellants filed a motion asking the court for a re-appraisal of the premises. Appellants' motion for relief from judgment was based primarily on Civ. R. 60(B)(1) which provides that relief should be granted in the face of "mistake, inadvertence, surprise or excusable neglect." More specifically, appellants contended that - 3 - two "mistakes" on the part of appellee warranted the requested relief. First, appellants contended that appellee's failure to name Janice E. Carter, the ex-wife of defendant Van Carter who apparently had a mortgage interest in the subject property, warranted relief from the judgment because she was an indispensable party. Secondly, appellants contended that appellee erred in naming United Consumer as a defendant, because United consumer had no lien on the subject property. In addition to these claimed mistakes, appellant argued that its own "excusable neglect" in waiting for appellee to correct their "mistakes" warranted relief from the judgment. Appellants' motion for relief from judgment and motion for re-appraisal were denied by the trial court October 26, 1990. This appeal timely follows. II. For their first assignment of error appellants contend that the trial court erred in denying their motion for relief from judgment. Civ. R. 60(B) provides that: "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 - 4 - 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. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. "This procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules." To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate: (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 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. v. ARC Industries (1976), 47 Ohio St. 2d 146. Moreover, these requirements are independent of each other, and in the conjunctive, each one must be met by a movant, or the motion will fail. Id. at 151. An appellate court will not disturb an order denying relief from judgment unless the trial court has abused its discretion by that ruling. Associated Estates v. Fellows (1983), 11 Ohio App. - 5 - 3d 112; Huntington Nat'l Bank v. Investment Group (1983), 12 Ohio App. 3d 113. In addressing the first prong of the GTE test, appellants' claim that appellee's failure to join Janice Carter as a party to this action and error in joining United Consumer, is a meritorious defense to their failure to answer the complaint. Matters of improper joinder are dealt with in Civ. R. 18-21, and can be raised in a parties' answer to the complaint. Appellants did not answer the complaint, but do not dispute that they were properly served with the complaint. They have, therefore, not voiced their issues in a manner recognized by the civil rules. Appellants have failed to demonstrate that they have a meritorious defense to a foreclosure action by the first and best lienholder where they do not properly raise issues of misjoinder in their answer to the complaint. In addressing the second prong of the GTE test, appellants claim that the aforementioned "mistakes" by appellee justify their "excusable neglect" in not answering the complaint. In this case, much as in the case of Blasco v. Miscik (1982), 69 Ohio St. 2d 684, the defendant "simply disregarded or ignored their obligation under the civil rules to timely present their defenses." Id. at 686. A complete failure to answer or otherwise defend a suit, where notice is not an issue, cannot under any interpretation of the civil rules constitute "excusable neglect." - 6 - Appellant has demonstrated that its motion was timely under the third prong of the GTE test. However, since the three prongs of the GTE test must each be met independently of the others, GTE at 151, we find that appellants' first assignment of error is not well taken. III. For their second assignment of error, appellants argue that the trial court erred in denying their motion for re-appraisal of the premises. R.C. 2505.02 provides in pertinent part: "An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed with or without retrial." The appraisal report prepared by the county sheriff, which was the subject of appellants' motion, was issued on August 23, 1990. Appellants' have since filed for protection under Federal Bankruptcy Law, and the pending foreclosure has been stayed. We therefore find that the trial court's order denying appellants' request for re-appraisal is interlocutory in nature, and is not a final order under R.C. 2505.02. Nearly two years having passed since the sheriff's appraisal, it may be necessary to re-appraise the property, when and if the bankruptcy stay is lifted. - 7 - Appellants' second assignment of error is overruled. Judgment affirmed. Judgment affirmed. It is ordered that appellee recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, J., and BLACKMON, J., CONCUR. JOHN F. CORRIGAN PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .