COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61081 NORMAN DRONGOWSKI : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ANGELO SALVATORE : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 1, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 166,856 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: MARK F. KRUSE, ESQ. PATRICK J. GALLAGHER, ESQ. McIntyre, Kahn & Kruse Co., L.P.A. 1301 E. Ninth Street, #1200 Cleveland, Ohio 44114 For defendant-appellant: ANGELO SALVATORE, pro se 4111 Center Road, #302 Brunswick, Ohio 44212 - 1 - ANN McMANAMON, J.: Norman Drongowski sued Angelo Salvatore for personal inju- ries and property damage arising from an automobile accident. Salvatore failed to answer the complaint and, upon Drongowski's motion, the court entered a default judgment. Eleven months later, Salvatore filed a Civ. R. 60(B) motion to vacate the judgment. The court denied the motion, precipitating this timely appeal. In two assignments of error, Salvatore challenges the court's ruling. We affirm. In his first assignment of error, Salvatore asserts the court improperly denied his Civ. R. 60(B) motion. To prevail on a motion to vacate a default judgment, the movant must demonstrate: (1) a meritorious claim or defense; (2) the timeliness of the motion; and (3) entitlement to relief under one of the grounds enumerated in Civ. R. 60(B)(1) through (5). GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St.2d 146; Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17. Failure to establish any one of the GTE requirements is fatal to a claim for relief from judgment. Mount Olive Baptist Church v. Pipkins Paint (1979), 64 Ohio App.2d 285. A ruling on a motion to vacate pursuant to Civ. R. 60(B) is left to the sound discretion of the trial court. Griffey v. Rajan (1987), 33 Ohio - 2 - St.3d 75, 77; Rose, supra, at 20. Although Civ. R. 60(B) is to be liberally construed, there exists a "competing principle that litigation must be brought to an end ***." Rose, at 21. Salvatore alleged a meritorious defense to the complaint. He claims that Drongowski's own negligence proximately caused his injuries and that Drongowski's negligence was comparatively greater. It is well established that a movant's burden is to allege a meritorious defense and not to prove the truth with respect to the defense. Colley v. Bazell (1980), 64 Ohio St.2d 243, 247. We find Salvatore met his burden in this regard. Salvatore, however, failed to meet the two remaining requirements of GTE. In his motion to vacate, Salvatore claimed entitlement to relief under Civ. R. 60(B)(1) and (5). Salvatore averred that at the time of the accident he was driving an auto owned by his father and that he mistakenly believed his father's insurance company was defending the action on his behalf. He initially argues his failure to file an answer constitutes excusable ne- glect under Civ. R. 60(B)(1). In Colley, supra, syllabus paragraph two, the supreme court held: Where a defendant, upon being served with summons in a cause of action based on a claim for which he has liability insurance, relies upon his carrier to defend the lawsuit, his failure to file an answer or to determine independently that his carrier has failed to file timely an answer which leads to the tak- ing of a default judgment, may constitute - 3 - "excusable neglect," depending on the facts and circumstances of the case, so as to jus- tify relief from the default judgment pursu- ant to Civ. R. 60(B). The Colley defendant notified his insurance carrier of the law- suit immediately and supplied information needed to defend the action. The insurance company failed to file a timely answer because "the paperwork was apparently delayed in the mail ***" and the trial court entered a default judgment within one week of the answer date. Id. at 248. The Colley defendant filed his Civ. R. 60(B) motion eleven days later. Id. at 246. The supreme court held that under these facts, the defendant's inaction con- stituted excusable neglect within the meaning of Civ. R. 60(B)(1). In contrast to the Colley defendant, Salvatore presented no evidence he contacted his father's insurance company or provided the company with the information necessary to defend the lawsuit. It does not appear from the record that he took any steps to determine whether the company was, in fact, representing his interest. The trial court entered the default judgment over a month after the answer date, and Salvatore waited eleven months and eight days to file his Civ. R. 60(B) motion. We find Salva- tore failed to demonstrate excusable neglect under Civ. R. 60(B)(1). We also reject Salvatore's claim to relief under Civ. R. 60(B)(5). This rule empowers a trial court to grant relief from the unjust operation of a judgment. Caruso-Ciresi, Inc. v. Loh- - 4 - man (1983), 5 Ohio St.3d 64. Civ. R. 60(B)(5), however, requires a showing of substantial grounds and is not intended to serve as a substitute for another provision of the rule. Id. Finally, relief under Civ. R. 60(B)(5) will not be granted absent unusual or extraordinary circumstances. Mount Olive Baptist, supra, at 287. Salvatore has not presented any facts to justify relief under this provision. Salvatore also failed to timely file his motion to vacate. Civ. R. 60(B) provides that " *** motion[s] shall be made within a reasonable time and for reasons (1), (2) and (3) not more than 1 year after judgment ***." Salvatore filed his motion eleven months and eight days after the entry of the default judgment. He offers no explanation for this delay, and his deposition tes- timony taken eighteen days after the judgment indicates he was aware of the default hearing. This court has held that an unjus- tified delay of two and one-half months is unreasonable as a matter of law. Zerovnik v. E. F. Hutton & Co. (June 7, 1984), Cuyahoga App. No. 47460, unreported. See, also, Mount Olive Baptist Church, supra, (four-month unjustified delay precludes relief from judgment); Larson v. Umoh (1986), 33 Ohio App.3d 14 (seventy-two-day delay renders Civ. R. 60(B) motion untimely). Accordingly, this assignment of error is overruled. - 5 - In his second assignment of error, Salvatore asserts the court improperly entered a default judgment without providing notice of the hearing. Civ. R. 55(A) provides that if a party against whom a de- fault judgment is sought has appeared in an action, that party shall be served with written notice of the application for judg- ment at least seven days prior to the default hearing. The re- cord demonstrates Salvatore had not appeared in the action and, thus, he was not entitled to notice. See AMCA Internatl. Corp. v. Carlton (1984), 10 Ohio St.3d 88; Ohio Valley Radiology Assoc- ., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118. We note, however, Drongowski mailed notice to Salvatore at his par- ents' address and his mother signed for the notice. In his depo- sition testimony, Salvatore admitted to "accepting" mail at his parents' address and stated he received notice of the hearing. The trial court was free to disbelieve Salvatore's subsequent affidavit in which he disavowed his deposition testimony. Thus, although Salvatore was not entitled to notice under Civ. R. 55(A), it appears he was aware of the hearing date. This assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County 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. DYKE, P.J. KRUPANSKY, J. CONCUR JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .