COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74591 LINDA BAKER, et al., : ACCELERATED DOCKET : Plaintiff-Appellees : JOURNAL ENTRY : vs. : AND : MAX STARCIC, : OPINION : Defendant-Appellant : PER CURIAM : DATE OF ANNOUNCEMENT DECEMBER 3, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-289170 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellees: WILLIAM M. PAYNE Payne, Payne & Cook 1535 Leader Building 526 Superior Avenue Cleveland, Ohio 44114-1401 For Defendant-Appellant: PAUL MANCINO, JR. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098 -2- PER CURIAM: This case came on for hearing upon the accelerated calendar of our court pursuant to App.R. 11.1 and Loc.R. 25, the record from the common pleas court, and the briefs of the parties. Max Starcic appeals from the denial of his motion for relief from a default judgment entered in favor of Linda Baker and Nationwide Mutual Insurance Co., arising out of a motor vehicle collision, contending the court initially deprived him due process of law by entering a default judgment against him without proper service or notice, and then erred in denying his motion for relief from that judgment without conducting an evidentiary hearing. After a review of the record and the arguments presented, we find no error and affirm the court's decision. On May 9, 1995, Linda Baker and Nationwide, her insurer, sued Starcic for negligence in connection with an automobile accident and obtained service at the address listed in the police report, 30320 Fern Drive, in Willowick, Ohio. Because Starcic failed to plead, Baker and Nationwide moved for a default judgment; prior to ruling on that motion, the court scheduled a case management conference, which Starcic attended. At that time, the court scheduled a settlement conference on the case, and when Starcic failed to appear for the settlement conference, Baker and Nationwide orally renewed their motion for default; the court subsequently scheduled a hearing on the default request and attempted to notify Starcic, and on March 6, 1996 granted an $11,492.36 default judgment against Starcic. -3- On December 29, 1997, more than 21 months after entry of judgment, Starcic filed a motion for relief from that judgment alleging the court lacked jurisdiction because he had never been properly served with the complaint, and that the court improperly entered judgment against him and because he had never been notified about the motion for default judgment. Subsequently, on March 18, 1998, the court conducted a settlement conference with all parties represented and when those efforts failed, the court thereafter denied Starcic's request for relief from the default judgment. Starcic now appeals raising three assignments of error for our review which state: I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ENTERED A JUDGMENT AGAINST HIM WHEN HE WAS NOT SERVED WITH SUMMONS IN ACCORDANCE WITH LAW. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ENTERED A DEFAULT JUDGMENT AGAINST DEFENDANT WHO HAD APPEARED IN THE ACTION WITHOUT GIVING HIM NOTICE. III. THE COURT COMMITTED PREJUDICIAL ERROR IN NOT GRANTING A HEARING ON DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT. Starcic contends the court abused its discretion in denying his motion for relief from judgment, arguing that the court lacked jurisdiction over him because he had never been served with the complaint, that he never had notice of the motion for default, and that the court denied his motion for relief from judgment without conducting an evidentiary hearing. Baker and Nationwide urge the court properly denied Starcic's -4- motion for relief from judgment, arguing that Starcic submitted to the court's jurisdiction when he entered an appearance at the case management conference, that Civ.R. 55(A) does not require the court to notify a defaulting party regarding a default judgment, and that the trial judge met with the parties in his chambers and thoroughly discussed the facts and law relevant to Starcic's motion for relief, thereby eliminating the need for a hearing on that motion. The issue then presented for our review concerns whether the court erred in denying Starcic's motion for relief from judgment. In GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, the court established Civ.R. 60(B) requirements in its syllabus: 2. 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 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. Further, in Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, the court stated in relevant part at 20: If any of these three requirements is not met, the motion should be overruled. Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 351, 6 OBR 403, 406, 453 N.E.2d 648, 651. The question of whether relief should be granted is addressed to the sound discretion of the trial court. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122, 1123. In this case, Starcic alleged in his affidavit that Baker caused the accident, which could constitute a meritorious defense to appellees' negligence claims. -5- Further, Starcic argued the court lacked personal jurisdiction over him because of failure of service; however, by appearing in court at a case management conference, Starcic submitted to its jurisdiction. See Maryhew v. Yova (1984), 11 Ohio St.3d 154. Finally, Starcic argued the court granted the default judgment without notice to him. In this regard, we observe that Civ.R. 55(A) provides in relevant part: * * * If the party against whom judgment by default is sought has appeared in the action, he * * * shall be served with written notice of the application for judgmentat least seven days prior to the hearing on such application * * *. (Emphasis added). Here, although the court's judgment entry indicates notice of the scheduled default hearing had been mailed to all parties, since Starcic did not file a pleading, it appears he may not have received notice. However, no appeal from the default judgment is before us. Rather, Starcic appeals from denial of his motion for relief from judgment, which should have been filed within a reasonable time. See Adomeit v. Baltimore (1974), 39 Ohio App.2d 97. We have concluded that in filing his motion almost two years after entry of the judgment, Starcic failed to file it within a reasonable time. Accordingly, Starcic cannot prevail on his motion for relief from judgment. Regarding Starcic's claim that the court failed to conduct a hearing on his motion for relief, we recognize that the court originally scheduled a pre-trial settlement conference for February 19, 1998, but rescheduled it at Starcic's request and on March 13, 1998, the court conducted a pre-trial settlement conference prior -6- to deciding the motion for relief from judgment. Hence, we cannot conclude the court abused its discretion in failing to hold a hearing on this matter. In addition, the court cured any defect in notice regarding the default judgment by conducting a settlement conference with the appellant in connection with the motion for relief from judgment. Notably, no execution had been made on the judgment prior to that time, and therefore Starcic suffered no prejudice from the lack of notice about the default judgment. Since Starcic failed to comply with the requirements of GTE Automatic Electric v. ARC Industries, supra, we conclude that the trial court did not abuse its discretion in denying his motion for relief from judgment, and we therefore affirm that decision. 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. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, JUDGE CONCURS IN JUDGMENT ONLY 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 .