COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72600 & 73582 SELKER & FURBER : A LAW PARTNERSHIP : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION GLORIA A. BRIGHTMAN, et al. : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-289555. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Eugene I. Selker, Esq. Timothy R. Obringer, Esq. Selker & Furber 1111 Ohio Savings Plaza 1801 E. Ninth Street Cleveland, Ohio 44114 For Defendant-appellant: Michael A. Partlow, Esq. Morganstern, MacAdams & DeVito Co., L.P.A. 1406 West Sixth Street, Suite 400 Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., J.: Defendant-appellant Gloria Brightman appeals from the denial of her motion for relief from judgment. Judgment was rendered on an account in favor of the plaintiff-appellee Selker & Furber, a Law Partnership. On May 16, 1995, the appellee filed a complaint against the appellant alleging a failure to pay legal fees due and owing. The appellee made numerous attempts at service upon the appellant: 1) certified mail service on the appellant at her residence; 2) ordinary mail at appellant's residence; 3) certified mail service at the residence of appellant's daughter; 4) ordinary mail service at the daughter's address; and, 5) sheriff service. Each of these attempts was unsuccessful. The appellant then successfully sought, and perfected, service through a court authorized process server. Upon the lapse of time for an answer, the appellee filed a motion for default judgment. On April 11, 1996, subsequent to the hearing on the motion, the court entered judgment for the appellee: Accordingly, judgment is entered against Defendant Gloria Brightman on Invoice B for $7,832.00 for services and expenses from December 9, 1991 to December 17, 1992, with prejudgment interest running at the statutory rate of 10% from December 17, 1992 and accruing to date; additionally, judgment is entered against Defendant Gloria Brightman for Invoice A, representing services rendered from December 18, 1992 to December 16, 1993, with prejudgment interest running at statutory rate of 10% since December 16, 1993 and accruing to date. On May 10, 1996, the appellee filed a motion to correct the judgment entry requesting that the court specifically enter a judgment amount on invoice A. The court, on May 15, 1996, entered a nunc pro tunc order rendering a final judgment by restating the -3- above-referenced order with the additional language entering judgment against the appellee on invoice A in the amount of $5,240.00. On April 11, 1997, the appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B). Attached to the motion is the affidavit of the appellant stating that her residence remained unchanged at all times; that she does not receive mail at her residence, but was available for personal service; that she never received service of the complaint or any other documents pertaining to this matter; that she first learned appellee instituted a suit against her when she was served with a complaint in foreclosure; and that she has a meritorious defense since the judgment was in excess of the amount she owed to appellee. On April 30, 1997, the court denied the motion for relief from judgment. A notice of appeal was filed by the appellant on May 29, 1997, and given appellate case number 72600. This court entered a limited remand so that the trial judge might conduct a hearing on the motion for relief from judgment. At the hearing conducted before the trial judge on the motion for relief from judgment, the court heard the testimony of two witnesses. The appellant testified that she first learned of this suit when she received a letter regarding the appellee's lien on her land. She was aware at that point that an action in foreclosure had been filed against her. The appellant has lived in East Cleveland her entire life. Her current home on Grasmere Avenue is boarded up for safety. She has had much difficulty in having mail -4- delivered as the Post Office has frequent substitute mailmen and her home appears to be vacant. Towards this end, in 1994 she had her daughter secure a post office box in Cleveland Heights. The appellant testified that she did not receive the certified mail service, or any other service, or notice in any manner, which would have informed her of this lawsuit. When questioned by the trial judge regarding markings on the service envelopes indicating that service had been attempted, but was unsuccessful, the appellant testified that the postal employees were all lying. The appellee elicited the testimony of Mr. Paul Cefaratti, a private investigator appointed by the court to perfect service of process on the appellant. Mr. Cefaratti was employed by the appellee to serve the appellant, but had difficulty in confirming her residence. He made several attempts to serve the appellant at her Grasmere Avenue residence, but because the house appeared to be vacant, it was believed no one was living there. Mr. Cefaratti secured a retrace report from the credit bureau which indicated that the appellant still resided in the house on Grasmere Avenue. A report from the Ohio Bureau of Motor Vehicles was obtained indicating that the appellant had a driver's license with a current address on Grasmere Avenue in East Cleveland. The registration check revealed that a motor vehicle was registered at that address as well. Mr. Cefaratti then used a utility database check and discovered that the appellant did indeed pay bills for utilities at the Grasmere Avenue address. -5- Several more attempts were made to serve the appellant. Mr. Cefaratti testified that on December 10, 1995, he served the appellant personally with process. The witness identified the appellant in open court as the woman he served and testified that the appellant was in the driveway of her residence, exiting a motor vehicle at the time of service. Mr. Cefaratti stated that in twelve years, only four or five times has it been necessary to go to such lengths to locate a person to serve process. Given the circumstances surrounding this case, and the fact that Mr. Cefaratti seldom has had to spend so much time tracking down a person, he remembers serving the appellant. After the hearing, the trial court found once more for the appellee. The appellant filed a notice of appeal and appellate case number 73582 was assigned. The appellant sets forth two assignments of error. The appellant's first assignment of error: THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY DENYING THE APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT. The appellant sought relief from judgment under Civ.R. 60(B)(1), mistake, inadvertence, surprise or excusable neglect. Appellant argues on appeal that sufficient evidence was presented that she had a meritorious defense to the complaint, that the motion was timely filed, and that the lack of notice was excusable neglect. The appellant asserts that she is thus entitled to relief under Civ.R. 60(B). The appellant denies that service was -6- perfected by mail or personally and asserts that the testimony of Mr. Cefaratti was not credible. As this court held in Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App.2d 285: Several policy questions are to be considered in the application of Civ.R. 60(B). The rule strikes a balance between the need for judgments to be final and the need for courts to vacate their orders to further justice and fairness. *** Where the judgment to be vacated is a default judgment, any doubt should be resolved in favor of the movant so that cases can be decided on their merits. *** However, a judgment may not be vacated for the sole reason that it was obtained by default. (Citations omitted) In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the movant must establish 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 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. State ex rel. Richard v. Seidner(1996), 76 Ohio St.3d 149 citing to GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146. A party who deliberately ignores a complaint has not stated an adequate ground for relief from a default judgement. Mount Olive, supra. See, also, Griffey v. Rajan (1987), 33 Ohio St.3d 75. In Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 66, the Supreme Court, citing to GTE Automatic Electric, Inc., supra, reaffirmed that the three requirements of GTE are independent and in the conjunctive not the disjunctive. Thus the test is not -7- fulfilled if any one of the requirements is not met. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174. The standard by which a decision on a Civ.R. 60(B) motion is reviewed is one of abuse of discretion. Id. An abuse of discretion connotes conduct which is unreasonable, arbitrary, or unconscionable. State ex rel. Richard, supra. Where the Civ.R. 60(B) motion contains allegations of operative facts which would warrant relief from judgment, the trial court should grant a hearing to take evidence to verify those facts before it rules on the motion. Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18. The credibility of the witnesses during the hearing is a matter within the prerogative of the trial judge. Gangulff v. Maxwell (Jan.15, 1997), Seneca App. No. 13-96-29, unreported; Claussen v. Claussen (April 25, 1997), Lucas App. No. L-96-208, unreported. In a Civ.R. 60(B) evidentiary hearing, the trier of fact is entitled to afford testimony such weight as it deems appropriate. Charles v. Anthony (Sept. 15, 1992), Franklin App. No. 92AP-51, unreported. In the case sub judice, the trial court held a full hearing on the issue of service of process and/or notice of the lawsuit. The appellant presented evidence to the court through her testimony that service was not received in any manner. The appellee presented testimony that the appellant was, in fact, personally served. The trial court resolved this question of fact when it denied the relief from judgment request by the appellant. Since the trial court, charged with determining questions of fact, heard -8- competent, credible evidence which, if believed, would support its decision, the ruling may not be found to be against the weight of the evidence. The appellee presented the testimony of Mr. Cefaratti who unequivocally testified that he personally handed service of process to the appellant. The trial court did not abuse its discretion in denying the appellant's Civ.R. 60(B)(1) motion. The appellant's first assignment of error is overruled. The second assignment of error: THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY AMENDING THE AMOUNT OF THE JUDGMENT RENDERED AGAINST THE APPELLANT. The appellant contends that the trial court was without jurisdiction to enter the nunc pro tunc order of May 15, 1996 correcting its clerical error and amending the amount of the judgment. The appellee asserts that the court properly utilized Civ.R. 60(A). The appellant did not appeal this ruling until the trial court ruled on the Civ.R. 60(B) motion. It is clear that a Civ.R. 60(B) motion may not be used to extend the time for filing a notice of appeal. Steadley v. Montanya (1981), 67 Ohio St.2d 297; Consolidated Rail Corp. v. Forest Cartage Co. (1990), 68 Ohio App.3d 333, 336; Bosco v. City of Euclid (1974), 38 Ohio App.2d 40. The appellant filed two appeals: appellate case number 72600, filed on May 29, 1997; and appellate case number 73583, filed on November 25, 1997. Both appeals were filed long after the court entered its nunc pro tunc ruling. This court lacks jurisdiction to -9- consider appeals untimely filed. App.R. 4.(A). Donofrio v. Amerisure Ins. Co. (1990), 67 Ohio App.3d 272. The appellant's second assignment of error is overruled. Judgment affirmed. -10- It is ordered that appellee recover of appellant its 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. PATRICIA A. BLACKMON, A.J., and TIMOTHY E. McMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE 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 journalization of this court's announcement of decision by the .