COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68244 ANGELA ANDERSON : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WOODROW GARRICK, ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT : OF DECISION : OCT. 12, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 237469 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANTS-APPELLANTS: William J. Heine, Esq. Peter Onysko, Esq. 1370 Ontario Street 1370 Ontario Street 950 Standard Building 1208 Standard Bldg. Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- HARPER, J.: Defendant-appellant, Woodrow Garrick d.b.a. Garrick Auto Sales ("Garrick"), appeals from the denial of his Civ.R. 60(B) motion for relief from judgment by the Court of Common Pleas of Cuyahoga County. Garrick submits that the trial court abused its discretion in denying the requested relief, thereby permitting a default judgment entered in favor of plaintiff-appellee, Angela Anderson, to remain in full force and effect. A careful review of the record compels affirmance. Anderson filed a complaint for money damages against Garrick on August 20, 1992 with regard to Garrick's January 1992 repossession of a 1982 Chrysler motor vehicle. Anderson purchased the vehicle from Garrick on February 3, 1991, and the repossession resulted from Anderson's alleged default on her payment obligations. Anderson's August 1992 claims were premised on the validity of Garrick's security interest in the vehicle, conversion, estoppel, and purported violations of R.C. Chapters 1309, 1317 and 1345. The parties stipulated on September 18, 1992 that Garrick had until October 15, 1992 to respond to Anderson's complaint. When Garrick failed to respond in the allotted time, Anderson filed a Civ.R. 55(A) motion for default judgment. The trial court set the motion for hearing on January 25, 1993, but rescheduled the hearing for January 27, 1993 at Garrick's request. Anderson, Garrick and their respective counsel appeared for the hearing. The trial court's App.R. 9(C) statement of -3- proceedings sets forth that Anderson's counsel related to the court that Anderson was willing to offer testimony. Rather than hear testimony, the trial court accepted Anderson's affidavit and her counsel's representation that Anderson's testimony would be consistent with the averments in the affidavit. Garrick's counsel neither objected to the introduction of the affidavit as testimony nor requested a cross-examination of Anderson. Garrick's counsel, however, orally requested an extension of time within which to file an answer. Counsel stated that if the extension was granted, she would make a good faith effort to negotiate a resolution to the parties' dispute. The trial court informed the parties and their counsel that it intended to grant Anderson's motion for default judgment. The court nonetheless stated its decision not to immediately journalize the ruling, and granted Garrick's counsel leave to file a responsive pleading by January 29, 1993. Though a journal entry dated January 27, 1993 resets a "case management conference" for March 10, 1993, the trial court's App.R. 9(C) statement discloses that it stayed further action on the default motion in order to permit Garrick's counsel the opportunity to respond to the complaint. The statement reads in pertinent part: Counsel for all parties were instructed, understood and agreed that if defendant filed a responsive pleading by January 29, 1993, then a case management conference would be had on March 10, 1993. If a responsive pleading was not filed by January 29, 1993, then it was further understood and agreed that the case would come before the court once again for default judgment and the court would -4- then journalize a default judgment for plaintiff. No further notice of the March 10 hearing other than the mailing of a post card in the ordinary course was given to the parties. Through inadvertence, the half-sheet entry signed by the court setting the March 10, 1993 date indicated only that the case was set for a "case management hearing" rather than a "default hearing/case management conference". The docket shows that "CMC" is rest to 3/10/93 at 8:30 A.M." (emphasis added). The word "rest" is a typographical error and should instead read "reset". Since only a default hearing had ever been scheduled [on January 27, 1993], the intent of the court from the docket entry was clearly to reset the default hearing and contingently, to schedule a case management hearing. Defendant's counsel never filed a responsive pleading to the complaint nor offered an explanation for not doing so and on March 18, 1993 the court journalized a default judgment for plaintiff. This action by the court was consistent with the understanding and agreement reached on January 27, 1993. At the time, no objection was interposed by defendant to the court's granting and journalizing a default judgment. *** (Emphasis sic and added). The trial court granted a default judgment in favor of Anderson on March 18, 1993 based upon the January 27, 1993 agreement, i.e., if Garrick did not file a responsive pleading by January 29, 1993, the trial court would journalize the default. The court awarded Anderson actual damages in the amount of $1,605.50 and compensatory damages in the amount of $4,154. Garrick filed a motion for relief from judgment on January 4, 1994 wherein he stated that he only learned of the judgment upon execution in December 1993. Garrick filed briefs in support of the motion on March 21 and June 10, 1994. Garrick premised the motion on Anderson's alleged fraudulent representation that Garrick did not hold a security interest in the 1982 Chrysler; the trial -5- court's alleged failure to notify him that a default hearing, as opposed to a case management conference, was held on March 10, 1993; and Anderson's affidavit provided insufficient evidence to the trial court with respect to her claims and requests for monetary relief. Garrick also made passing references to his original counsel's failure to file a responsive pleading. In addition to his affidavit, Garrick attached copies of two documents to his motion for relief from judgment. The first document is a security agreement allegedly signed by Anderson; the second document is a certificate of title which lists Garrick Auto Sales as a lien holder on the vehicle. Anderson filed a brief in opposition to Garrick's motion on March 14, 1994. She argued that Garrick possessed ample time to contest the allegations contained in her complaint, but failed to do so. Consequently, he was not entitled to relief from the default judgment under Civ.R. 60(B). The trial court's App.R. 9(C) statement reveals that it held a hearing in its chambers on June 6, 1994 with Garrick's new counsel and Anderson's counsel. The court advised Garrick's new counsel as to the prior proceedings and Garrick's prior counsel's representations in those proceedings. Specifically, the trial court informed Garrick's counsel that the March 10, 1993 hearing was only a "case management conference" which would have occurred if Garrick filed a responsive pleading by the January 29, 1993 deadline. The trial court's docket in fact discloses that no hearing or meeting took place on March 10, 1993. -6- Garrick's counsel retorted that since the January 27, 1993 journal entry did not precisely indicate the default hearing was rescheduled for March 10, 1993, the journalization of default judgment after March 10, 1993 was improper. In other words, since the trial court did not properly notify Garrick that the March hearing was a default hearing pursuant to Civ.R. 55(A), the trial court could not issue a default judgment after the original hearing date of January 27, 1993. The trial court rejected this argument as a basis for relief under Civ.R. 60(B), and thereafter heard Garrick's counsel's remaining arguments pertaining to the motion. The App.R. 9(C) statement reveals that these arguments were identical to those contained in Garrick's written motion and briefs. The trial court denied Garrick's motion for relief from judgment on November 8, 1994, leading to this appeal and his two assignments of error: 1. THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE IN DENYING THE MOTION FOR RELIEF FROM JUDGMENT. 2. THE TRIAL COURT ERRED IN INCLUDING IN ITS NARRATIVE STATEMENT OF PROCEEDINGS WHAT IT MEANT BY A JOURNAL ENTRY, THE EFFECT OF WHICH WAS TO AMEND AN EARLIER JOURNAL ENTRY WITHOUT ACTUALLY ENTERING SUCH AMENDMENT IN THE JOURNAL OF THE COURT. Garrick, in his first assignment of error, presents several arguments in support of his assertion that the trial court abused its discretion in refusing to vacate the default judgment. The arguments relate to the trial court's failure to notify Garrick of the March 10, 1993 "default hearing"; the insufficiency of -7- Anderson's evidence in support of her claims, including her failure to demonstrate ownership of the 1982 Chrysler prior to the trial court's judgment on the conversion claim; and Anderson's and her counsel's alleged acts of fraud upon the court in the filing of the complaint insofar as they denied Garrick's secured interest in the automobile. Civ.R. 60(B) provides the exclusive grounds which must be present in order for a trial court to vacate its own judgment. The rule provides in material part: (B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his representative, from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; ***; (3) fraud ***, misrepresentation or other misconduct of an adverse party; ***; 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. *** In order to prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate (1) that the party has a meritorious defense or claim to present if relief is granted; (2) that the party is entitled to relief under one of the grounds contained in Civ.R. 60(B)(1) through (5); and (3) that 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 entry of the judgment. Argo Plastic Prod. Co. v. Cleveland (1984), 15 Ohio St.3d 389, 391; GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.3d 146, paragraph two of the syllabus. A trial -8- court should overrule a Civ.R. 60(B) motion if the movant fails to meet all three of the GTE requirements. Volodkevich v. Volodkevich (1988), 35 Ohio St.3d 152, 153; Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 351. The only Civ.R. 60(B) ground for relief cited by Garrick in his motion for relief from judgment is the catch-all provision, Civ.R. 60(B)(5), which reflects the inherent power of a court to relieve a person from the unjust operation of a judgment. The grounds for invoking Civ.R. 60(B)(5), however, should be substantial. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 66. Though Garrick only cites Civ.R. 60(B)(5) in one brief in support of his motion for relief from judgment, his briefs suggest fraud and excusable neglect as alternative grounds for relief under Civ.R. 60(B)(1) and (3). It is within the sound discretion of the trial court to decide whether to grant a motion for relief from judgment. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. A reviewing court, therefore, will not disturb the trial court's decision absent a clear showing of an abuse of discretion. Griffey v. Rajan (1987) 33 Ohio St.3d 75, 77; Adomeit v. Baltimore (1974), 39 Ohio App.2d 91, 102. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude was unreasonable, arbitrary, or unconscionable. Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122. -9- An initial concern of this court is whether Garrick timely filed his motion for relief from judgment. Since the motion was filed within one year of the trial court's entry of default judgment in favor of Anderson, it is arguable that the motion is timely. See, Argo; GTE. While the timeliness of a Civ.R. 60(B) motion must be considered under the facts of each case, Volodkevich, 155, "rule 60(B) relief, however, is not available as a substitute for appeal *** nor can the rule be used to circumvent or extend the time requirements for filing an appeal," Blasko v. Mislik (1982), 69 Ohio St.2d 684, 686. See, National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 63; Doe v. Trumbull Cty. Children Services Bd. (1986), 28 Ohio St.3d 128, 131. Our review of the record reveals that Garrick failed to exercise his due diligence in seeking relief from judgment, as the record reflects that he knew of the impending default judgment and the responsive pleading deadline. Garrick's own affidavit discloses that he was present at the January 27, 1993 default hearing when the trial court advised the parties and their counsel about the postponement of the default application until Garrick was given time to file a responsive pleading. Based upon Garrick's knowledge as of January 27, 1993, this court believes that he is now attempting to side-step the appellate rules by testing the correctness of the trial court's decision by means of Civ.R. 60(B). Garrick did not file his motion for relief from judgment until almost ten months after the trial court's final judgment. A party is required to follow the progress of his or her -10- own case. Maynard v. Maynard (Feb. 11, 1982), Cuyahoga App. No. 43642, unreported. A party's failure to be aware of a properly journalized and published judgment does not justify vacation of that judgment pursuant to Civ.R. 60(B). See, Bosco v. Euclid (1974), 38 Ohio App.2d 40; Bazin v. Mayfield (Aug. 24, 1989), Cuyahoga App. No. 44696, unreported. This rule is particularly germane where, as here, a party merely asserts that he did not receive notice of final judgment, but fails to offer any evidence to show improper service. Additionally, in Volodkevich, the court observed that "the gist of post-trial relief is to remedy an injustice resulting from a cause that cannot reasonably be addressed during the ordinary trial and appellate proceedings." Volodkevich, 155. In other words, Civ.R. 60(B) is not a viable means to attack legal errors made by a trial court; rather, it permits a court to grant relief when the factual circumstances relating to a judgment are shown to be materially different from the circumstances at the time of the judgment. See, Kay v. Marc Glassman, Inc. (Feb. 1, 1995), Summit App. No. 16726, unreported. Accordingly, Garrick's argument pertaining to Anderson's and her counsel's "fraud upon the court" by filing the complaint, thereby denying a security interest, is not a proper ground for relief under Civ.R. 60(B). Garrick's arguments that Anderson failed to demonstrate her interest in the vehicle pursuant to R.C. 4505.04, or otherwise failed to prove any of her claims, are likewise not grounds for relief under this civil rule. These arguments were available to Garrick at the time -11- Anderson filed her complaint. As previously stated, Civ.R. 60(B) relief is not available as a substitute for appeal, and thus cannot be used to challenge the correctness of the trial court's decision on the merits. National Amusements, Inc.; Doe; Blasco; Justice v. Lutheran Social Serv. of Cent. Ohio (1992), 79 Ohio App.3d 439, 442; Gurkovich v. AAA Mobile Home Sales & Brokerage, Inc. (1990), 70 Ohio App.3d 572, 575; Consolidated Rail Corp. v. Forest Cartage Co. (1900), 68 Ohio App.3d 333, 336. Assuming arguendo that Garrick timely filed the motion, a reviewable issue is whether the trial court failed to comply with the notice requirements of Civ.R. 55(A) prior to entering a default judgment in favor of Anderson. The relevant portion of this rule reads as follows: When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefor ***. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties. According to this rule, where a defendant who fails to timely file an answer has otherwise "appeared" in an action, due process dictates that written notice of the default judgment application be -12- served on the defendant seven days prior to the default hearing on the application. AMCA Internatl. Corp. v. Carlton (1984), 10 Ohio St.3d 88, 90; Breeding v. Herberger (1992), 81 Ohio App.3d 419, 422; Amiri v. Thropp (1992), 80 Ohio App.3d 44, 52. In the present case, Anderson filed her motion for default judgment on December 11, 1992. There is no dispute that Garrick was aware of Anderson's pending motion for default judgment as he and his counsel appeared at the originally scheduled default hearing of January 27, 1993. Garrick never claimed that he did not receive notice of the application within seven days of this hearing as required by Civ.R. 55(A). Garrick nonetheless attacks the trial court's March 18, 1993 default judgment because he was not given notice of the March 10, 1993 "default hearing." This attack is unwarranted for two reasons. First, Anderson only filed one motion for default judgment, the one filed in December 1992. Civ.R. 55(A) requires notice of an application for default judgment be provided to the party who failed to respond within seven days of the hearing. Garrick does not deny that he received notice of the application. Second, the record before this court makes it abundantly clear that the trial court held the default hearing on January 27, 1993, but postponed its ruling in order to allow Garrick time to file a responsive pleading to Anderson's complaint. The trial court's App.R. 9(C) statement relates how it addressed the parties and their counsel at this hearing. Specifically, it informed the -13- parties and counsel of its intention to withhold the ruling on the default motion until Garrick had time to file a responsive pleading. The trial court set forth in its statement that the parties and their counsel understood the case management conference was contingent on the filing of a responsive pleading by Garrick. Despite the trial court's leniency and its advisory, Garrick never filed a responsive pleading. Garrick's argument on appeal that he was never notified of the "March hearing," or the consequences of his failure to file a responsive pleading by the deadline, is thus without factual support. Compare, Furniture Sales Specialists, Inc. v. Thomas (1993), 82 Ohio App.3d 759 (summons failed to notify defendant that if she did not appear on date of scheduled hearing, or respond prior to that date, default judgment would be entered against her). Moreover, Garrick had from August 20, 1992 to January 29, 1993 to file a responsive pleading to Anderson's complaint. The trial court announced the January 29, 1993 deadline only after Garrick and his counsel were made aware of an impending default judgment. Garrick nevertheless failed to ensure the filing of a responsive pleading by the deadline, and he fails to offer any reason as to why a responsive pleading was not filed by his original counsel. See, Maynard (burden is on parties to follow progress of their own case). Garrick moreover had in excess of an additional month after the deadline to file a responsive pleading because the trial court did not take any action on Anderson's application for default judgment until over a month after the deadline. -14- This court recognizes the general rule that "where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits." GTE, 151. However, "this principle does not obviate the requirement that the movant must demonstrate that he is entitled to relief under one of the grounds stated in Civ.[R.] 60(B)(1) through (5)." Id. Considering the facts and circumstances known by the trial court when faced with Garrick's motion for relief from judgment, and notwithstanding the general rule of leniency expressed in GTE, the trial court did not abuse its discretion in denying the requested relief based upon any claim of excusable neglect under Civ.R. 60(B)(1) or the catch-all provision of Civ.R. 60(B)(5). See, Griffey; Argo. Compare, Colley (trial court abused discretion in denying relief from judgment where defendant promptly notified insurance carrier of lawsuit, judgment was substantial and entered shortly after defendant's failure to file answer); Columbia Gas of Ohio v. Riley (1987), 38 Ohio App.3d 151 (trial court erred in entering judgment in favor of plaintiff after defendant and counsel failed to appear at rescheduled trial date when trial court failed to send notice of rescheduled trial date to defendant's counsel); Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App.2d 285 (a party who willfully and deliberately chooses to ignore a complaint and fails to present a valid reason for failing to answer a complaint does -15- not state adequate ground for relief from default judgment pursuant to Civ.R. 60(B)(5)). Finally, Garrick contends that the trial court's default judgment was improper because it failed to take "evidence" as to Anderson's complaint and damages. In accordance with our previous announcement, since Garrick only appealed from the order denying relief from the default judgment, and not from the entry of the default judgment itself, he is precluded from directly challenging the judgment. We will, therefore, review this argument only to the extent that it may reveal the absence of proof of damages, giving rise to an error which should have been addressed below by granting relief from the default judgment. See, Carr v. Charter Natl. Life Ins. Co. (1986), 22 Ohio St.3d 11 (trial court abuses discretion in denying Civ.R. 60(B) motion to the extent that the motion challenges the amount of an award when the evidence presented at default hearing is insufficient to support award). The trial court held a default hearing in January 1993, a discretionary decision under Civ.R. 55(A). There are essentially three types of hearings, one of which is an oral hearing at which evidence may be produced through affidavit and arguments of counsel. See, Breeding, 423; Civ.R. 6(D). The trial court accepted Anderson's affidavit as evidence without objection of Garrick or his counsel and without any requests to cross-examine Anderson as to its content. The trial court's January 1993 hearing complied with the general rule that hearings be had before awarding a default judgment in a negligence/tort action. See, Buckeye -16- Supply Co. v. Northeast Drilling Co. (1985), 24 Ohio App.3d 134; Maintenance Unlimited Inc. v. Salemi (1984), 18 Ohio App.3d 480; Farmers & Merchants State & Savings Bank v. Raymond G. Barr Ent. Inc. (1982), 6 Ohio App.3d 43; Widenmeyer Elec. Co. v. Krupla (July 8, 1992), Medina App. No. 2076, unreported; Casalinova v. Solaro (Sept. 27, 1989), Summit App. No. 14052, unreported. Additionally, the principal damages sought by Anderson were not like the indefinite types of damages sought in a negligence action. She sought monetary damages to recover the payments she made to Garrick for the 1982 Chrysler, and the value of the personal goods which remained in the automobile at the time of repossession and were not returned to her. The trial court's award of actual damages in the amount of $1,605.50, representing the total payments made to Garrick, $1,350, and the value of Anderson's personal belongings, $255.50, is thus supported by Anderson's complaint and her affidavit. This court, however, does not understand the basis for the compensatory damages award to Anderson of $4,154. Anderson may recover three times the amount of her actual damages under R.C. 1345.09(B) if Garrick's actions were either specifically prohibited by a regulation promulgated by the Attorney General pursuant to R.C. 1345.05(B)(2) or a deceptive act as determined by a prior court decision. See, Dotson v. Brondes Motor Sales, Inc. (1993), 90 Ohio App.3d 206, 208. These circumstances are not present, and no other evidence was offered by Anderson to support an award of $4,154. However, in light of our prior ruling that Garrick's -17- motion was untimely, we decline to vacate this portion of the award. See, Volodkevich; Svoboda. In conclusion, we find no abuse of discretion on behalf of the trial court in its refusal to vacate the default judgment entered in favor of Anderson. Garrick's motion was untimely under the circumstances of this case, and was primarily premised on grounds which should have been raised in a direct appeal. Garrick otherwise fails to demonstrate grounds for relief under Civ.R. 60(B)(1) through (5). Garrick's first assignment of error is overruled. Garrick's second assignment of error focuses on the trial court's App.R. 9(C) statement of proceedings. Specifically, he argues, without supporting authority, that the trial court could not use its post-judgment App.R. 9(C) statement to explain how it meant to schedule a default hearing/case management conference for March 10, 1993, and not just a case management conference as set forth in its January 27, 1993 journal entry. The trial court reset a case management conference for March 10, 1993, but advised the parties that the conference was contingent on Garrick's filing of a responsive pleading. Though the trial court refers to the January 27, 1993 entry as stating the conference was "rest" to March 10, 1993, this "typographical" error is present in the court's docket, not the actual journal entry. A trial court speaks only through its journal, and not the computer generated docket sheet. Nonetheless, there was only one default motion, and one default hearing; Garrick was aware of the -18- motion and was present at the hearing. Our review of the record and the January 27, 1993 journal entry leads us to conclude that there is no discrepancy between the trial court's January 27, 1993 entry and the underlying procedure of the case. Additionally, the trial court could easily have issued a nunc pro tunc order. Such an order is restricted to correcting a judgment entry, "then for now," so the record reflects a judicial action which was actually taken but not properly set forth in a judgment or entry. See, Webb v. Western Reserve Bond & Share Co. (1926), 115 Ohio St. 247; Leaseway Distribution Center, Inc. v. Ohio Dept. of Adm. Serv. (1988), 49 Ohio App.3d 99. A trial court, therefore, may issue such an order to supply an omission in the exercise of functions which are merely clerical. Jacks v. Adamson (1897), 56 Ohio St. 397; Leaseway Distribution Center, Inc. Garrick's second assignment of error is thus overruled. Judgment affirmed. -19- It is ordered that appellee recover of appellants her 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 Cuyahoga County 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. JOHN T. PATTON, CHIEF JUSTICE JOSEPH J. NAHRA, J., CONCUR JUDGE SARA J. HARPER 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 journaliza-tion, .