COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 77473 and 77486 D. DELORES SAVAGE, ET AL. : : Plaintiffs-Appellees : : JOURNAL ENTRY -vs- : AND : OPINION DAVID GODA, ET AL. : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 26, 2000 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-193550 JUDGMENT: AFFIRMED IN PART, VACATED IN PART DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: DARRYL E. PITTMAN (#0034194) Pittman Alexander & Associates 2940 Noble Road Cleveland, Ohio 44121 For Defendants-Appellants THOMAS D. ROBENALT (#0055960) Dave and Kathy Goda: DAVID W. SKALL (#0068740) Novak, Robenalt, Pavlik & Scharf, L.L.P. 1660 W. Second St., Suite 270 Cleveland, Ohio 44113-1498 For Defendant-Appellant KENNETH BAKER (#0015151) Vince Ruggieri: MICHAEL SLODOV (#0051678) Javitch, Block, Eisen & Rathbone 1300 E. 9th Street Cleveland, Ohio 44114 SPELLACY, J.: This is a consolidated appeal of appellate case numbers 77473 and 77486. In case number 77473, defendants-appellants Dave and Kathy Goda ( Godas ) appeal from the denial of their Civ.R. 60(B) -2- motion for relief from a default judgment. The Godas assign the following errors for review: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANTS' MOTION FOR RELIEF FROM JUDGMENT BASED ON THE FRAUD OF APPELLEES IN REQUESTING AND OBTAINING DEFAULT JUDGMENT IN FAVOR OF INDIVIDUALS WHO WERE NOT PREVIOUSLY AND APPROPRIATELY NAMED AS PLAINTIFFS IN THE UNDERLYING ACTION. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANTS' MOTION FOR RELIEF FROM DEFAULT JUDGMENT BASED ON THE APPELLEES' FAILURE TO APPROPRIATELY REQUEST A HEARING PRIOR TO THE ENTRY OF DEFAULT JUDGMENT. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANTS' MOTION FOR RELIEF FROM DEFAULT JUDGMENT BECAUSE APPELLANTS WERE NOT PROVIDED ACTUAL OR CONSTRUCTIVE NOTICE OF THE DEFAULT HEARING IN COMPLIANCE WITH THE PROCEDURAL REQUIREMENTS OF DUE PROCESS. IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANTS' MOTION FOR RELIEF (sic) DEFAULT JUDGMENT BECAUSE APPELLANTS HAVE MERITORIOUS DEFENSES TO THE ALLEGED CLAIMS OF THE UNDERLYING ACTION AND FILED THEIR MOTION FOR RELIEF IN A TIMELY MANNER. In case number 77486, Vince Ruggieri assigns the following error for review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT VINCE RUGGIERI, IN DENYING HIS MOTION TO VACATE JUDGMENT. The judgment entered by the trial court in favor of Kimberly Mitchell is vacated as void. The remainder of the trial court's judgment is affirmed. -3- I. On July 18, 1990, G. Delores Savage and numerous other plaintiffs filed a complaint against the Godas, Ruggieri, and several other defendants. In the complaint, the plaintiffs averred the defendants engaged in a scheme to deceive and defraud purchasers of homes by utilizing inflated mortgage appraisals, misrepresenting the type and quality of repair work to be performed on the homes, misrepresenting the quality of the homes, performing repair work in an unworkmanlike manner, and concealing material defects in the properties. The plaintiffs requested relief under R.C. 2923.32(A)(2) and (3) and R.C. 2923.34. The plaintiffs sought class certification. On August 24, 1990, the defendants removed the case to the United States District Court. The plaintiffs' claim alleging a violation of the Federal Truth-In-Lending Act was dismissed. The United States District Court remanded the case to the Cuyahoga County Court of Common Pleas on October 5, 1990. On December 17, 1990, the plaintiffs filed a motion to reinstate the case to the active docket. On June 24, 1991, the plaintiffs filed a supplemental and amended complaint, adding new plaintiffs and new defendants. The plaintiffs brought a claim that the defendants violated the Ohio Rico Statute and asked that the case be certified as a class action. The plaintiffs alleged the defendants breached contracts by failing to perform promised repair work, committed unfair and deceptive acts in connection with a consumer transaction, made -4- false representations about the value of the various properties, and breached a warranty the homes were fit for their intended use. The Godas and Ruggieri answered the amended complaint. Although several of the other named defendants presented a vigorous defense, the Godas and Ruggieri filed no motions or responses after answering the amended complaint. On June 25, 1994, the plaintiffs filed a motion for summary judgment. As proof, the plaintiffs relied in part upon Dave Goda's plea agreement entered in the United States District Court in 1992. Goda admitted to obtaining money by means of fraudulent representations and defrauding several victims. The Godas and Ruggieri did not respond to the summary judgment motion which was subsequently denied by the trial court. The case was set for trial on May 24, 1995. On July 10, 1995, the plaintiffs filed a motion for default judgment. The plaintiffs averred the Godas, Ruggieri, and their respective attorneys did not appear for the scheduled trial. On October 10, 1995, the plaintiffs filed a motion for dismissal pursuant to Civ.R. 41. On September 6, 1996, the trial court issued a journal entry in which it stated it was waiting for documents in support of the plaintiffs' motion for default judgment and denying the plaintiffs' Civ.R. 41 motion. On May 5, 1997, the trial court granted the plaintiffs' motion for default judgment. The trial court found the Godas and Ruggieri did not oppose the plaintiffs' summary judgment motion, appear for -5- trial, present a defense, or otherwise prosecute the action. The trial court proceeded to award damages to various plaintiffs. On November 17, 1997, the trial court amended the journal entry nunc pro tunc to award attorneys fees and costs. On March 16, 1999, the Godas filed a Civ.R. 60(B) motion for relief from judgment. In their motion, the Godas claimed the plaintiffs committed fraud upon the court by representing that certain individuals were plaintiffs when they were not. The Godas also argued they were entitled to relief because the plaintiffs did not request a hearing on their motion for default judgment. The Godas stated they had meritorious defenses to present. On March 24, 1999, Ruggieri filed his Civ.R. 60(B) motion for relief from judgment. Ruggieri claimed his attorney provided him with a copy of a letter sent to another attorney. In the letter, Ruggieri's attorney stated he was enclosing a notice of successor counsel on Ruggieri's behalf for the new attorney. Ruggieri averred the notice of successor counsel was never filed with the trial court. Further, the new law firm did not file an appearance on his behalf in this case. Ruggieri stated the plaintiffs continued to serve his original attorney who did not respond or take any action to protect his interests. Ruggieri claimed he was unaware of the default judgment until late December of 1998. Ruggieri premised the Civ.R. 60(B)(5) motion on the arguments that the default judgment was not properly entered as a matter of law and he did not receive the required seven day notice. -6- On December 9, 1999, the trial court denied both motions for relief from judgment. The trial court stated the default judgment was granted due to the defendants' failure to appear at trial. The trial court found the Civ.R. 60(B) motions to be untimely. II. In their first assignment of error, the Godas assert the trial court abused its discretion by denying their Civ.R. 60(B)(5) motion for relief from judgment. The Godas argue the plaintiffs committed a fraud upon the trial court by obtaining a default judgment in favor of three people who were not properly made a part of the action. Because leave to filed the amended complaint was not obtained, the Godas contend that two plaintiffs who were added as parties in the amended complaint were not properly before the trial court. The Godas also object to the award given to Kimberly Mitchell who was not named as a plaintiff either in the complaint or the amended complaint. Civ.R. 60(B) provides: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding 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; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from -7- 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. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules. A movant for relief from judgment under Civ.R. 60(B) 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)-(5); and (3) the motion is made within a reasonable time. GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. See also Strack v. Pelton (1994), 70 Ohio St.3d 172, 174. The motion should be denied if the movant fails to meet all three of the GTE requirements. Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 351. The burden is on the movant to demonstrate that the interests of justice demand the setting aside of a judgment normally accorded finality. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17. A ruling on a motion for relief from judgment is left to the sound discretion of the trial court. The trial court's decision will not be overturned on appeal absent an abuse of that discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. To constitute an abuse of discretion, the trial court's ruling must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the -8- exercise of reason but instead passion or bias. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256. The Godas premise their argument on the actions of the plaintiffs' attorney in obtaining judgment for three people. Relief may be sought under Civ.R. 60(B)(5) for fraud upon the court. The term of fraud upon the court has been narrowly construed to include only that type of conduct which defiles the court itself, or fraud which is perpetrated by officers of the court so as to prevent the judicial system from functioning in the customary manner of deciding the cases presented in an impartial manner. Hartford v. Hartford (1977), 53 Ohio App.2d 79, 83-84. Fraud upon the court is applied where an officer of the court, e.g., an attorney, actively participates in defrauding the court. Scholler v. Scholler (1984), 10 Ohio St.3d 98, 106. The Godas argue that the failure of the plaintiffs to ask for and receive leave of court to file their amended complaint constitutes fraud upon the court. The Godas filed an answer to the amended complaint without first making any argument that the amended complaint was improperly filed. The Godas have waived any objection to the additional plaintiffs named in the amended complaint by failing to object to the lack of leave to file the amended complaint. See Rentz v. Bannister (May 31, 1995), Montgomery App. No. 15019, unreported. Kimberly Mitchell was not named in either the complaint or the amended complaint. The trial court lacked jurisdiction to grant a judgment in favor of Mitchell as she was not named as a party to -9- the action. If the trial court lacked jurisdiction, any order entered was a nullity and is void. O.B. Corp. v. Cordell (1988), 47 Ohio App.3d 170. Civ.R. 60(B) only applies to judgments which are voidable. Patton v. Diemer (1988), 35 Ohio St.3d 68, 70. The authority to vacate a void judgment is an inherent power possessed by Ohio courts. Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, paragraph one of the syllabus. Because the judgment in favor of Kimberly Mitchell was void, this court vacates that part of the trial court's journal entry. The Godas' first assignment of error is sustained in part and overruled in part. III. The Godas' second, third, and fourth assignments of error will be addressed together as similar issues of law and fact are present. In their second assignment of error, the Godas argue the trial court abused its discretion by denying their Civ.R. 60(B)(5) motion for relief from judgment because no hearing was held before the trial court entered default judgment. The Godas assert their answer to the complaint in federal court meant that a hearing had to be held under Civ.R. 55 before default judgment could be entered against them. In their third assignment of error, the Godas contend they were denied due process because they did not receive either actual or constructive notice of a default hearing. In their fourth assignment of error, the Godas maintain they have meritorious defenses to present against the claims of the plaintiffs. -10- Civ.R. 60(B)(5) is a catch-all provision that reflects the inherent power of a court to relieve a person from the unjust operation of a judgment. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, paragraph one of the syllabus. The grounds for relief must be substantial. Id. It is to be used only in extraordinary and unusual cases when the interests of justice warrant it. Adomeit v. Baltimore (1974), 39 Ohio App.2d 97. The provision is not to be used as a substitute for any of the more specific provisions of Civ.R. 60(B). Strack v. Pelton (1994), 70 Ohio St.3d 172. A default judgment entered without the seven day notice required by Civ.R. 55 may be vacated pursuant to Civ.R. 60(B)(5). Miamisburg Motel v. Huntington Nat'l Bank (1993), 88 Ohio App.3d 117. Although a Civ.R. 60(B)(5) motion is not subject to the rule that it be brought within one year after entry of final judgment, the motion still must be made within a reasonable time. The trial court entered the default judgment on May 5, 1997. The Godas claim they learned of the judgment in October of 1998. They filed their Civ.R. 60(B)(5) motion on March 16, 1999. What is apparent from the record is the dilatory manner in which the Godas conducted their defense of the complaint. The Godas virtually disappeared from the action shortly after filing their answer to the amended complaint. The Godas did not respond to the plaintiffs' motion for summary judgment or file a dispositive motion of their own. They did not appear for trial or respond to the motion for default judgment. The Godas offer no -11- reason for their inaction or failure to prosecute a defense in an on-going case. The Godas never state they did not receive notice of the various motions filed against them or of the date of trial. The Godas do not say why they were unaware of the entry of judgment before October of 1998. Parties are expected to keep themselves informed of the progress of their case. Weaver v. Colwell Financial Corp. (1992), 73 Ohio App.3d 139, 144. Also, a trial court's journal entry provides constructive notice to the parties of scheduled dates of hearings or trial. Zashin, Rich, Sutula & Monastra Co., L.P.A. v. Offenberg (1993), 90 Ohio App.3d 436, 445. Therefore, the Godas received notice of the motions and trial date and should have been aware of the entry of default judgment before October of 1998. Therefore, their Civ.R. 60(B)(5) motion for relief from judgment was untimely. Further, the Godas waited five months after they acknowledge learning about the judgment before filing their motion for relief from judgment. The trial court did not abuse its discretion by finding the Godas' Civ.R. 60(B) motion was not timely. The Godas failed to meet the third prong of the GTE test. Therefore, it is not necessary to determine whether the trial court abused its discretion by entering default judgment against the Godas or if the Godas had meritorious defenses to present. The Godas' second, third, and fourth assignments of error are overruled. IV. In his sole assignment of error, Ruggieri claims he is -12- entitled to relief from judgment under Civ.R. 60(B)(5) because his attorney essentially abandoned representing him. Ruggieri avers he was informed by his attorney that another firm would be representing him in this matter. However, the successor firm never filed notice with the trial court and his original attorney did not seek permission from the trial court to withdraw as counsel. Because his original attorney ceased providing representation, Ruggieri states he was not aware of any proceedings in this case after March of 1993. Ruggieri asserts he did not learn of the entry of default judgment until late December of 1998 when a creditor's bill was filed against him by the plaintiffs' attorney. Ruggieri argues he filed his Civ.R. 60(B) motion in a timely manner because he did not learn of the judgment until late December of 1998. Ruggieri blames the delay on his attorney. Ruggieri claims his attorney abandoned representing his interests and rights in this case. Ruggieri acknowledges the general rule that the neglect of a party's attorney will be imputed to the client for purposes of Civ.R. 60(B)(1). Neglect by an attorney which is extraordinary may be grounds for relief under Civ.R. 60(B)(5). Whitt v. Bennett (1992), 82 Ohio App.3d 792. Fault will not automatically be imputed to the client who is diligent and misled that his interests are being properly handled by the attorney. Id. Ruggieri contends the attorney-client relationship with his original attorney terminated on March 23, 1993. On that date, Ruggieri received a notification from his attorney that a successor -13- attorney would file a notice of appearance with the trial court. Ruggieri never explains who terminated the attorney-client relationship or why his former attorney would choose his successor in this matter. Ruggieri apparently had no contact with the firm he claims was representing him after March 23, 1993. Instead, Ruggieri claims he did not pursue a defense based upon a statement made by the Godas' attorney that the case was dormant. The trial court entered the default judgment four years after Ruggieri states his attorney stopped representing him. In that time period, Ruggieri never attempted to contact the firm he thought was representing his interests in this case. Ruggieri bears as much responsibility for his failure to present a defense through his own actions, or lack of action, as does his original attorney. This is not one of those extraordinary cases to which Civ.R. 60(B)(5) applies. Ruggieri did not file his Civ.R. 60(B) motion for relief from judgment until March 24, 1999, or nearly a year and a half after judgment was entered against him in this case. The trial court did not abuse its discretion by determining this motion was not timely. Ruggieri's assignment of error is overruled. Judgment affirmed in part, vacated in part. -14- It is ordered that appellees recover of appellants 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. ANN DYKE, ADM.J. and KENENETH A. ROCCO, J. CONCUR. LEO M. SPELLACY 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. 22. 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). .