COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70277 and 71326 : KAY GEE PRODUCT COMPANY : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : SAM SALEM AKA SELEEM SALEM, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT JUNE 5, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 286232 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant For Defendant-Appellee Kay Gee Produce Company: Sam Salem, aka Seleem Salem: LAWRENCE S. BENJAMIN, ESQ. THOMAS R. MCGRATH, ESQ. 24500 Chagrin Blvd. MICHELLE L. TRIPP, ESQ. Suite 101 McGrath,Kaufman & Hykes, LLC Beachwood, Ohio 44122 175 S. Third St., Ste. 1070 Columbus, Ohio 43215-4201 and MICHAEL MOLNAR, ESQ. 4168 Rocky River Drive Cleveland, Ohio 44135 - i - For Appellee: Francis Gaul, JAMES E. O'BRIEN, ESQ. County Treasurer Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Appellees: Charles J. Bueter, Dynes THOMAS R. MCGRATH, ESQ. & BankAmerica, F.S.B. MICHELLE L. TRIPP, ESQ. McGrath, Kaufman & Hykes, LLC 175 S. Third Street Suite 1070 Columbus, Ohio 43215-4201 -2- PATRICIA ANN BLACKMON, P.J.: Kay Gee Produce Company ("Kay Gee"), plaintiff-appellant, appeals a trial court's summary judgment in favor of Sam Salem, a.k.a. Seleem Salem ("Seleem Salem"), Enam Salem, Mary Dynes, Charles Bueter, and Frances Gaul, defendants-appellees. Kay Gee filed a foreclosure action on property of Salem, which property had been sold to Dynes and Bueter. Kay Gee claimed to have a valid judgment lien against the property and the judgment was not satisfied at the time of sale. In its summary judgment motion, the defendants-appellees argued the judgment lien was filed under the name "Sam Salem," which was insufficient to give notice of the lien since the property was listed to Saleem Salem and any search of the records would have been for the name Saleem Salem. We conclude Kay Gee's filing of its judgment lien under the name "Sam Saleem" did not give sufficient notice of the lien, and the trial court correctly granted summary judgment. Therefore, we affirm. Kay Gee assigns the following three errors for our review: I. THE COURT BELOW COMMITTED REVERSIBLE ERROR IN GRANTING DEFENDANT-APPELLANT'S [sic] MOTION FOR SUMMARY JUDGMENT WHERE THE EVIDENCE WHICH WAS TO BE CONSTRUED MOST STRONGLY IN FAVOR OF PLAINTIFF-APPELLANT LEFT QUESTIONS OF MATERIAL FACT, OR, IN THE ALTERNATIVE, LEFT NO QUESTIONS OF MATERIAL FACT, BUT THAT THE CONTENTIONS OF DEFENDANTS-APPELLEES WERE NOT PROVEN. II. THE COURT BELOW COMMITTED REVERSIBLE ERROR IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR SUMMARY JUDGMENT CONTRARY TO THE PROVISIONS OF CIV.R. 56. III. THE COURT BELOW COMMITTED REVERSIBLE ERROR WHEN IT OVERRULED PLAINTIFF-APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT. -3- On March 13, 1995, Kay Gee Produce Company ("Kay Gee") filed a 1 foreclosure complaint against Sam Salem, a.k.a. Seleem Salem ("Seleem Salem"). In the complaint, Kay Gee alleged Seleem Salem failed to satisfy a September 14, 1990 agreed judgment requiring him to pay Kay Gee a total of $41,500. As part of the judgment, Kay Gee placed a lien against Seleem Salem's house at 3811 West Valley Drive in Fairview Park. On October 4, 1994, Seleem Salem sold the house to Mary Dynes and Charles Bueter without satisfying the debt owed to Kay Gee. Kay Gee sought to recover on the judgment through seizure and sale of the real estate. Bueter, Dynes, and Bank of America moved for summary judgment alleging plaintiff's lien was invalid because it was filed under Salem's sobriquet "Sam" Salem, instead of his legal name "Seleem" Salem. In response to the summary judgment motion, Kay Gee argued a judgment lien attaches to a person rather than to a name. In a February 6, 1996 journal entry, the trial court granted a default judgment against Seleem Salem, Omni Financial, Lakeland Mental Health Serv and the State of Ohio. The court also granted summary judgment in favor of Bueter, Dynes, and Bank of America. On February 26, 1996, Kay Gee appealed the trial court's summary judgment (Case No. 70277). On May 31, 1996, Kay Gee filed a Motion for Stay of Proceedings and Remand to Trial Court for The complaint also named Sam Salem's wife, Enan Salem, Mary Dynes, Charles Bueter, Frances Gaul, Bank of America, F.S.B., Omni Financial, Inc., Lakeland Mental Health Serv., Inc., and the State of Ohio. Omni Financial was later replaced with First American Title Insurance Company. -4- Consideration of Rule 60(B) Motion. The motion was originally denied, but was granted upon Kay Gee's motion for reconsideration. On August 14, 1996, Kay Gee filed a motion for relief from judgment due to newly discovered evidence. The evidence was described as a power of attorney given by "Sam Salem, aka Saleem Salem" to Joseph Salem. Kay Gee alleged it discovered the power of attorney while investigating other properties owned by Sam Salem, aka Saleem Salem. The court denied the motion, noting it was disingenuous of Kay Gee to argue the title company should have discovered the power of attorney in their title search while admitting they did not discover the document until several months after summary judgment was granted in the case. This appeal followed. The issue before us is whether the trial court correctly found that Kay Gee's judgment lien was improperly filed. Kay Gee in its first and second assignments of error argues that the judgment lien was properly filed despite the fact that it named Saleem Salem's sobriquet "Sam." Besides, they argue that the title company should have noticed the use of Sam Salem as Saleem Salem's sobriquet. We disagree. This court has held that "where an incorrect name is recorded pertaining to a judgment lien, such lien is not duly recorded, and will not be noticed to a subsequent purchaser without actual notice." Klang v. Majhrzak (February 8, 1990), Cuyahoga App. No. 56539, unreported. In Klang, we concluded that, during a search for liens against real estate owned by "Sciulli," a lien filed under the name "Ciulli" would not be discovered even by a -5- most diligent title examiner. Accordingly, we concluded the lien as filed was not sufficient to constitute notice to a subsequent purchaser. The facts of this case indicate that, as in Klang, "even a most diligent title examiner would not [have] discovered the lien" held by Kay Gee against Seleem Salem. Kay Gee argues the power of attorney filed in January 1990 was evidence that Sam Salem and Seleem Salem are the same person. Even if we accept their argument as true, the fact remains that Kay Gee did not discover the power of attorney until May 20, 1996. In its motion for relief from judgment, Kay Gee claims it could not have discovered the document earlier through due diligence. Accordingly, we must reject Kay Gee's argument that the failure of the buyers' title examiner to discover the lien raises a genuine issue of fact as to the examiner's diligence. Besides, the title company was not named as a party to the suit. However, Kay Gee argues we should rely on In re Hafeez (1991), 133 R.R. 419. The Hafeez case is distinguishable from this case because, in Hafeez, the purchaser had actual notice of the lien in question. In this case, the purchasers were unaware of the lien at the time the property was transferred. Because Kay Gee failed to present any evidence that appellees knew about the lien or should have discovered it through reasonable diligence, the trial court properly granted summary judgment in favor of appellees. Kay Gee's first and second assignments of error are overruled. -6- In its third assignment of error, Kay Gee challenges the trial court's denial of its Civ.R. 60(B) motion for relief from judgment. To prevail on a motion under Civ.R. 60(B), the movant must demonstrate that: (1) he 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. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 150. A trial court's decision on a motion for relief from judgment will be upheld unless the trial court's ruling is determined to constitute an abuse of discretion. Wiley v. Natl. Garages, Inc. (1984), 22 Ohio App.3d 57, 64. Kay Gee alleged it was entitled to relief from the trial court's judgment due to newly discovered evidence -- the power of attorney. However, the power of attorney merely demonstrated that "Sam Salem" was also known as "Saleem Salem." As a preliminary matter, we must note that Dynes and Bueter purchased property from "Seleem Salem," a name which matches neither of the names on the power of attorney. Even if we ignore the difference in spelling and conclude the power of attorney shows that Sam Salem and Seleem Salem are the same person, this fact was stipulated to by the parties before trial; therefore, the power of attorney is not "new" evidence but merely cumulative evidence. See Holden v. Ohio Bur. of Motor Vehicles (1990), 67 Ohio App.3d 531, 540. Kay Gee's third assignment of error is overruled. Judgment affirmed. -7- It is ordered that Appellees recover of Appellant 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 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. Exceptions. KARPINSKI, J., and ABOOD,* J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE (*SITTING BY ASSIGNMENT: JUDGE CHARLES D. ABOOD, RETIRED, OF THE 6TH DISTRICT COURT OF APPEALS) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .