COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67313 FRANCIS E. GAUL, TREASURER : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : CLARENCE J. HAAS, JR., ET AL. : OPINION : : DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-160041. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendants-Appellants: Robert J. Sindyla, Esq. 7530 Lucerne Drive Suite 200 Middleburg Heights, OH 44130 For John Halmos: S. Robert E. Lazzaro, Esq. 13317 Madison Avenue Cleveland, OH 44107 -2- DAVID T. MATIA, J.: Clarence J. Haas, Jr., et al., defendants-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas which approved the report and finding of the foreclosure referee ordering the sale of property due to a tax deficiency and which denied defendants-appellants' motion for relief from judgment. Defendants-appellants assign two errors for this court's review. Defendants-appellants' appeal is not well taken. I. THE FACTS On November 15, 1988 Francis E. Gaul, Cuyahoga County Treasurer, plaintiff-appellee, filed a complaint for foreclosure against Clarence J. Haas, Jr., Shirley A. Haas, Louann Buckley and Ray C. Buckley, defendants-appellants, alleging the existence of a tax deficiency for property located at 4343 Rocky River Drive, Cleveland, Ohio. Plaintiff-appellee attempted to serve the complaint on defendants-appellants by certified mail at the address of the property upon which foreclosure proceedings had been initiated. Plaintiff-appellee's first attempt at obtaining service was unsuccessful. On January 13, 1989 plaintiff-appellee again attempted service by certified mail on Clarence and Shirley Haas. This time, service on Clarence and Shirley Haas was perfected on January 20, 1989. Plaintiff-appellee did not attempt to serve Louann and Ray Buckley by certified mail again. -3- Nevertheless, on February 14, 1989 all four defendants- appellants filed an answer to plaintiff-appellee's complaint. On October 16, 1989, in spite of defendants-appellants' previously filed answer, plaintiff-appellee filed an affidavit for service by publication on Louann and Ray Buckley. Proof of publication was filed with the Cuyahoga County Clerk of Courts on November 7, 1989. On January 22, 1990 counsel for defendants-appellants filed a motion to withdraw as counsel of record. In the body of the motion to withdraw, counsel listed addresses at which defendants- appellants could allegedly receive future court notices. The motion to withdraw was granted by the trial court on February 9, 1990. From this point on, defendants-appellants allege that they stopped receiving court notices pertaining to the case. A hearing before a foreclosure referee was scheduled for January 8, 1991. Defendants-appellants were not present at the hearing. On January 10, 1991 the foreclosure referee filed her report which found in part: That all necessary parties to this action have been properly served by summons or by publication or have entered their appearance herein. That all such parties other than those specifically mentioned herein as having a lien on, or an interest in the premise described in the Complaint, are in default of answer or their pleading, have interposed no defense or have otherwise admitted, consented to or confessed the allegations of the pleadings filed to be true as to them. -4- The Referee finds as alleged in the Complaint that at the time of filing thereof, there had been assessed against said premises certain taxes, assessments, etc., that had not been paid; that said taxes had been certified as delinquent by the County Auditor; that such taxes, etc., have not been paid within the statutory period after such certification; and that Plaintiff has a valid first lien therefore on said premises. * * * That unless the amounts due the plaintiff and other lienholders are paid in such time as the Court may subsequently decree, said lienholders are entitled to have the equity of redemption of the defendants foreclosed, the said premises ordered sold as upon execution, free and clear of the interests of all parties to the action, and the proceeds of such sale applied in whole or in part to the payment of their respective liens. On January 15, 1991 the trial court approved the report and finding of the foreclosure referee and entered judgment in favor of plaintiff-appellee. On April 16, 1991 an order of sale was issued. Notice of the foreclosure sale was published in the Daily Legal News on the same day of each week for three consecutive weeks. On May 30, 1991 the order of sale was returned with a report of sale to John Halmos. The sale was confirmed by the trial court on June 11, 1991. On July 22, 1991 defendants-appellants filed a motion for relief from judgment in which defendants-appellants argued that they did not receive notice of any court proceedings after February 9, 1990, the day their attorney withdrew from their representation. John Halmos, the purchaser of the subject -5- property, filed a reply brief to defendants-appellants' motion for relief from judgment. Approximately 44 months later, on March 28, 1994, defendants- appellants filed a supplemental brief in support of their motion for relief from judgment. On April 6, 1994, John Halmos filed a response to the supplemental brief of defendants-appellants. On April 22, 1994 the trial court denied defendants- appellants' motion for relief from judgment. On May 19, 1994 defendants-appellants filed a timely notice of appeal of the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Defendants-appellants' first assignment of error states: THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT BECAUSE SUCH A DECISION DEFIED THE RULE THAT "NOTICE ONLY BY PUBLICATION TO A PARTY TO A FORECLOSURE SALE OR TO A PERSON HAVING AN INTEREST THEREIN IS INSUFFICIENT TO SATISFY DUE PROCESS [UNDER THE OHIO AND FEDERAL CONSTITUTIONS] WHEN THE ADDRESS OF THAT PARTY OR INTERESTED PERSON IS KNOWN OR EASILY ASCERTAINABLE." CENTRAL TRUST CO., N.A. V. JENSEN (1993), 67 OHIO ST.3D 140, SYLLABUS. A. THE ISSUE RAISED: DUE PROCESS Defendants-appellants argue that the trial court incorrectly denied their Civ.R. 60(B)(5) motion for relief from judgment. Defendants-appellants contend that, once their attorney withdrew from the case, they did not receive notice of any court proceedings including the hearing before the foreclosure referee, the entry of final judgment for plaintiff-appellee or the order of sale. It is defendants-appellants' position that notice of an -6- impending foreclosure sale by publication does not satisfy minimum due process considerations in this instance since defendants-appellants' addresses were easily ascertainable through a check of the court file. Defendants-appellants maintain that they have been denied their due process rights and have been precluded from exercising their rightful opportunity to protect their interests in the property to be foreclosed. B. STANDARD OF REVIEW FOR RELIEF FROM JUDGMENT Civ.R. 60(B) governs motions for relief from judgment and provides in part: On motion and upon such terms as one just, the court may relieve a party or his legal representative 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; *** (5) any other reason justifying relief from 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. The Ohio Supreme Court has summarized the requirements necessary to warrant relief from judgment pursuant to Civ.R. 60(B) as follows: 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 was made within a -7- reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after judgment, order or proceeding was entered and taken. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146 syllabus at paragraph two. The failure by a moving party to establish any one of these three (3) elements warrants denial of the motion for relief from judgment. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App.2d 285. In addition, a motion for relief from judgment pursuant to Civ.R. 60(B) may not be used as a substitute for a timely appeal. Doe v. Trumbull County Children Services Board (1986), 28 Ohio St.3d 128; National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 63; McCann v. City of Lakewood (May 12, 1994), Cuyahoga App. Nos. 64073, 64508, 64631, unreported. The determination as to whether to grant a Civ.R. 60(B) motion for relief from judgment is within the sound discretion of the trial court and will not be reversed upon appeal absent an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75. In this instance, the trial court's ruling on defendants-appellants' motion for relief from judgment will not be disturbed unless it is clear that the decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As stated by the Ohio Supreme Court in Blakemore: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: -8- "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. C. TRIAL COURT CORRECTLY DENIED MOTION FOR RELIEF FROM JUDGMENT In the present case, defendants-appellants' motion for relief from judgment failed to contain an allegation of operative fact which would satisfy the first element of GTE Automatic, specifically that defendants-appellants had a meritorious claim or defense to present if relief was granted. In the motion for relief from judgment, the only statement made by defendants- appellants which could be possibly construed as a meritorious claim or defense was that, if notified of the foreclosure sale, defendants-appellants would have been able to pay the back taxes on the property. However, this self-serving and unsupported statement does not rise to the level necessary to be considered as a meritorious claim or defense. An example of a meritorious claim or defense under the circumstances of this case would be that the taxes were incorrectly assessed against the property or that the taxes had been paid but incorrectly credited to another account. Having failed to comply with the first element of GTE Automatic, the trial court did not abuse its discretion in denying defendants-appellants' motion for relief from judgment. -9- Defendants-appellants' first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Defendants-appellants' second assignment of error states: THE TRIAL COURT ERRED WHEN IT APPROVED THE REFEREE REPORT'S (SIC) FINDING THAT THE APPELLANTS WERE IN DEFAULT OF ANSWER AND GRANTED JUDGMENT IN FAVOR OF APPELLEE. A. THE ISSUE RAISED: DEFAULT JUDGMENT Defendants-appellants argue that the trial court incorrectly adopted the foreclosure referee's finding that defendants- appellants were in default of answer. A review of the record fails to support defendants-appellants' assertion. The foreclosure referee's report provides in pertinent part: That all necessary parties to this action have been properly served by summons or by publication or have entered their appearance herein. That all such parties other than those specifically mentioned herein as having a lien on, or an interest in the premises described in the Complaint, are in default of Answer or other pleading, have interposed no defense or have otherwise admitted, consented to or confessed the allegations of the pleadings filed to be true as to them. Defendants-appellants construe the above language to mean the trial court entered a judgment by default in favor of plaintiff- appellee. However, these two paragraphs contained in the report are intended merely as catch-all provisions to be applied as appropriate to the procedural history of each individual case. -10- In order to determine whether a default judgment was actually granted, one must review the court docket. In this instance, the court docket shows that defendants- appellants filed an answer on February 14, 1989. The court docket indicates further that a final decree in favor of plaintiff-appellee was entered by the trial court on January 15, 1991. The court docket does not indicate that a default judgment was ever granted. Therefore, the proper interpretation of the referee's report would be that final judgment was entered in favor of plaintiff-appellee since defendants-appellants did not interpose a defense to the allegations contained in the pleadings. Defendants-appellants' second assignment of error is not well taken. Judgment of the trial court is affirmed. -11- It is ordered that appellee recover of appellants his 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 Common Pleas Court 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. KARPINSKI, J., CONCURS; BLACKMON, P.J., DISSENTS (WITH DISSENTING OPINION). DAVID T. MATIA 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67313 : FRANCIS E. GAUL, TREASURER : : Plaintiff-Appellee : DISSENTING OPINION : -vs- : : : CLARENCE J. HAAS, JR., ET AL. : : Defendants-Appellants : : DATE: MAY 11, 1995 BLACKMON, P.J., DISSENTING: I respectfully dissent from the Majority Opinion. I would have reversed the trial court's ruling in light of Central Trust Co., N.A. v. Jensen (1993), 67 Ohio St.3d 140. In Central Trust Co., N.A. v. Jensen, the Ohio Supreme Court held notice only by publication to a party to a foreclosure sale or to a person having an interest therein is insufficient to satisfy due process when the address of that party or interested party is known or easily ascertainable. .