[Cite as Davis v. Johnson, 2021-Ohio-85.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Douglas C. Davis, et al. Court of Appeals No. L-19-1268
Appellees Trial Court No. CVF-18-19416
v.
Douglas G. Johnson
Defendant DECISION AND JUDGMENT
[David G. Johnson—Appellant] Decided: January 15, 2021
*****
David G. Johnson, pro se.
SINGER, J.
{¶ 1} Appellant, David Johnson, appeals the judgment of the Toledo Municipal
Court, Housing Division, denying appellant’s motion for relief from the default judgment
granted to appellees, Douglas and Irene Davis, on their “Complaint for Money on Land
Contract.” For the reasons that follow, we reverse.
I. Facts and Procedural Background {¶ 2} This litigation commenced on October 29, 2018, when appellees filed their
complaint for breach of performance of a land installment contract for real property at
16 East Sylvania Avenue, Toledo, Ohio. The land installment contract, which was
recorded on February 3, 2016, provided that appellees would sell and convey the property
to appellant for $18,800, payable in a down payment of $2,000, with the remaining
balance to be paid in monthly installments of $350. The complaint alleged that the
defendant failed to abide by the terms and conditions of the contract, and failed to make
the required payments under the contract. The complaint prayed for a monetary
judgment for the unpaid amount.
{¶ 3} Relevant here, the caption of the complaint listed the defendant as
“Douglas G. Johnson.” However, in the body of the complaint, as well as the recorded
land installment contract, the defendant was identified as “David G. Johnson.”
{¶ 4} On October 31, 2018, service was attempted on “Douglas G. Johnson” by
certified mail to an address in Deerfield, Michigan. That service was returned
“unclaimed.” Service was then sent to “Douglas G. Johnson” by ordinary mail to the
same address in Deerfield, Michigan, on December 4, 2018. The ordinary mail envelope
was not returned with an endorsement showing failure of delivery.
{¶ 5} Because the defendant never responded to the complaint, on June 25, 2019,
appellees moved for default judgment. The caption for the motion for default judgment
named “David G. Johnson” as the defendant. Likewise, the caption for the attached
proposed judgment entry also named the defendant as “David G. Johnson.” Appellees
2. certified that they served the motion for default judgment on “David G. Johnson” at the
Deerfield, Michigan, address, a Toledo, Ohio, address, and by electronic mail to an
unspecified address.
{¶ 6} Notably, appellees never moved to amend the complaint pursuant to
Civ.R. 15(C) to name “David G. Johnson” as the proper defendant.
{¶ 7} On July 11, 2019, the trial court signed and entered the default judgment
entry proposed by appellees, thereby entering judgment against “David G. Johnson.”
Rather than awarding monetary damages to appellees as prayed for in the complaint, the
default judgment entry terminated the land installment contract, and awarded immediate
possession of 16 East Sylvania Avenue to appellees. A certified copy of the judgment
entry was issued to “Douglas G. Johnson” on July 12, 2019.
{¶ 8} On July 18, 2019, appellant filed a pro se “Emergency Ex Parte Motion to
Vacate Default Judgment Pursuant to ORCP 60(B).” In his motion, appellant alleged that
counsel for appellees deliberately and fraudulently sued him in the wrong name, and
obtained a default judgment against a person who was not a party. Appellant also alleged
that the trial court lacked jurisdiction to foreclose the property because he has paid off the
contract. As proof, appellant provided his bank statements through August 2018,
purportedly showing that he made the $350 monthly payments.
{¶ 9} Also attached to appellant’s motion was his affidavit in which he described
that on June 14, 2018, appellees transferred the deed to 16 East Sylvania Avenue to
James Clark, Jr. A copy of that deed was recorded on June 26, 2018. On July 18, 2018,
3. James Clark, Jr., transferred the property to his son, James M. Clark, III, via a quitclaim
deed, which was recorded on the same day. On July 20, 2018, appellant, as the Trustee
for the David G. Johnson II Family Trust dated November 11, 2016, purchased the
property at 16 East Sylvania Avenue from James M. Clark, III. The July 20, 2018
quitclaim deed was never recorded.
{¶ 10} Appellant further alleged that on July 25, 2018, a fraudulent quitclaim deed
was executed purporting to transfer ownership of 16 East Sylvania Avenue from
James M. Clark, III, to appellees. This deed was recorded on September 5, 2018.
Appellant attached an affidavit from James M. Clark, III, dated November 7, 2018, in
which Clark states that he sold the property to appellant on July 20, 2018; that he did not
sign the July 25, 2018 quitclaim deed; and that the July 25, 2018 quitclaim deed is a
forgery.
{¶ 11} The trial court, on the same day that appellant’s emergency ex parte motion
was filed, noted that appellant had not served the motion on appellees, and thus denied
appellant’s request for an emergency ex parte hearing. The docket reflects that appellant
subsequently served the motion on appellees on July 26, 2019.
{¶ 12} On July 30, 2019, appellees requested mediation, which the trial court
granted on August 2, 2019.
{¶ 13} Thereafter, on August 7, 2019, appellant filed an “Objection to Mediation
Referral Demand for Hearing on Emergency Ex Parte Motion to Vacate Default
Judgment Pursuant to ORCP 60(B).” In his August 7, 2019 motion, appellant asserted
4. that counsel for appellees fraudulently sued the wrong party, and that he was never
served or notified of the action until after default judgment was entered. Appellant
further reiterated that he has paid off the property, and that counsel for appellees created a
cloud in the title to the property through fraud.
{¶ 14} Appellees responded to appellant’s August 7, 2019 motion. In their
response, appellees explained that the deed recorded on June 26, 2018, transferring the
property from appellees to James Clark, Jr., was a mistake. According to appellees,
James M. Clark, III, acknowledged the mistake, and on June 28, 2018, offered to sign a
deed transferring the property back to appellees. That deed was finally executed on
July 25, 2018, and appellees asserted that through August 2018, Clark III repeatedly
acknowledged that he mailed the deed to appellees. Ultimately, the July 25, 2018 deed
was received and recorded on September 5, 2018.
{¶ 15} Beginning on September 8, 2018, appellees and counsel for appellees
began receiving emails and text messages from Clark III threatening to file criminal
charges for forging his initials on the July 25, 2018 deed. Appellees believe that they
also received threatening texts and phone messages from appellant, but using Clark III’s
name.
{¶ 16} In their response, appellees also asserted that the transfer from Clark Jr. to
Clark III, and then the sale from Clark III to appellant was all part of a scam to swindle
5. money from appellant. Furthermore, appellees argued that appellant’s claim that he
purchased the property from Clark III smacks of fraud.
{¶ 17} On August 12, 2019, the trial court denied appellant’s objection to the
mediation referral, and confirmed that mediation was to occur on September 12, 2019.
Appellant failed to appear at the mediation.
{¶ 18} Thereafter, on October 10, 2019, the trial court entered a judgment ordering
that “the original judgment entry on July 8, 2019 is hereby adopted by this court.
[Appellees] granted immediate possession of the property.”
II. Assignments of Error
{¶ 19} Appellant has timely appealed the trial court’s October 10, 2019 judgment
entry, and now asserts five assignments of error for our review:
1. The trial court erred when it entered a default judgment against
David G. Johnson II without amending the complaint for the purpose of
suing the proper party.
2. The trial court erred when it assumed in personam jurisdiction
over the appellant who was an unnamed, unserved, and an out of state
resident as against federal and state law rendering the judgment of default
void ab initio because it was issued without jurisdiction to do so.
3. The trial court erred when it assumed in rem jurisdiction over the
appellant’s property and ordered said property forfeited pursuant to the
judgment of default.
6. 4. The trial court erred by failing to schedule a hearing on the
appellant’s emergency ex parte motion to vacate default judgment pursuant
to ORCP 60(B).
5. The trial court erred in denying the appellant’s emergency
ex parte motion to vacate default judgment pursuant to ORCP 60(B), to wit:
A. The trial court sanctioned a fraud upon the court as contained in
the motion which set out facts and law showing that attorney Yoder
deliberately sued the wrong party for the purpose of submitting a fraudulent
B. The trial court erred in failing to find the quit claim deed
recorded September 5, 2018, a fraud as demonstrated by affidavits and
direct evidence.
C. The trial court erred when it failed to vacate the judgment of
default and dismiss the matter with prejudice pursuant to the appellant’s
emergency ex parte motion to vacate default judgment pursuant to ORCP
60(B) because the trial court lacked jurisdiction pursuant to ORC 5313.07.
III. Analysis
{¶ 20} In his first assignment of error, appellant argues that the trial court erred in
entering a default judgment against him when the complaint named “Douglas G.
Johnson” as the defendant.
7. {¶ 21} Civ.R. 3(A) provides that “[a] civil action is commenced by filing a
complaint with the court, if service is obtained within one year from such filing upon a
named defendant, or upon an incorrectly named defendant whose name is later corrected
pursuant to Civ.R. 15(C).”
{¶ 22} In support of his position that an action was never properly commenced,
appellant cites Patterson v. V & M Auto Body, 63 Ohio St.3d 573, 576, 589 N.E.2d 1306
(1992), in which the Ohio Supreme Court determined, “If a defendant in a lawsuit is not
an actual or legal entity, then any judgment rendered against that entity is void. * * * No
action has been commenced pursuant to Civ.R. 3(A).” (Internal citations omitted). In
Patterson, the plaintiff sued V & M Auto Body, which was a fictitious name used by
Victor Searfoss acting as a sole proprietor. Despite being notified on at least three
occasions that the proper defendant was Searfoss, the plaintiff never moved to amend the
complaint. Ultimately, while recognizing that “[t]he spirit of the Civil Rules is the
resolution of cases upon their merits, not upon pleading deficiencies,” the Ohio Supreme
Court held that “since this lawsuit was brought against a nonentity, it was never properly
commenced.” Id. at 577.
{¶ 23} Here, in contrast, appellees did not sue a fictitious entity, but rather simply
made a mistake by captioning the complaint with “Douglas G. Johnson” as the defendant
instead of “David G. Johnson.” In that way, this case is more akin to Owners Ins. Co. v.
Blakemore, 6th Dist. Lucas No. L-01-1342, 2002-Ohio-239. In Owners, the plaintiff
filed a complaint against “Timothy Blakemore.” The defendant’s correct name, however,
8. was “Timothy Blakeman.” The complaint and summons was served by certified mail to
“Timothy Blakemore” at an address in Maumee, Ohio, and were signed for by “Timothy
Blakeman.” The defendant never filed an answer, and the plaintiff moved for default
judgment against “Timothy Blakemore.” After the assessment hearing, the trial court
awarded the plaintiff $25,000 against “Timothy Blakeman.” This was the first time that
“Timothy Blakeman” appeared in the record, and the plaintiff never moved to amend the
complaint. Blakeman moved to vacate the judgment, arguing that the trial court lacked
personal jurisdiction over him. The trial court disagreed, reasoning that (1) service of the
complaint was sent to the address listed in the relevant accident report; (2) Blakeman
acknowledged the fact that he signed the return receipt for service of process;
(3) Blakeman admitted to being the driver of the vehicle involved in the accident; and
(4) Blakeman and Blakemore are very similar names.
{¶ 24} On appeal, this court reversed. This court relied on the Editor’s Note to
Civ.R. 3(A), which states, “‘if a plaintiff timely files his action within the limitations
period and perfects service within one year on the proper defendant, but inadvertently
misspells that defendant’s name in the complaint, the plaintiff may amend his complaint
in order to set forth defendant’s correct name, and that amendment, pursuant to Civ.R.
15(C), will relate back to the time of the commencement of the action.’ (Emphasis
added.)” Owners at *3. This court reasoned that the plaintiff failed to amend the
complaint to correct the defendant’s misspelled name, and thus “this cause was never
9. commenced against Timothy Blakeman, the court never acquired personal jurisdiction
over Blakeman and, consequently, the default judgment was void ab initio.” Id.
{¶ 25} Although akin to Owners, we find the present case to be meaningfully
distinguishable. Notably, unlike Owners, the rest of the complaint, and all other filings,
referred to “David G. Johnson” as the defendant. Ohio courts have held that “[t]he
caption of the case is not controlling. It is the substance of a pleading that determines its
operative effect. * * * Courts can look to the body of the complaint to determine the
parties to the complaint.” (Internal citations omitted). Engelhart v. Bluett, 1st Dist.
Hamilton No. C-160189, 2016-Ohio-7237, ¶ 12. See also Auer v. Paliath, 2d Dist.
Montgomery No. 27004, 2016-Ohio-5353, ¶ 43; Briggs v. Wilcox, 8th Dist. Cuyahoga
No. 98364, 2013-Ohio-1541, ¶ 37; Shelton v. LTC Mgmt. Servs., 4th Dist. Highland No.
03CA10, 2004-Ohio-507, ¶ 7. Thus, while it certainly would have been a best practice
for appellees to move to amend the complaint to change the caption, it is clear from the
substance of the complaint that appellant was the properly named defendant. Therefore,
we hold that the action was commenced against appellant under Civ.R. 3(A).
{¶ 26} Accordingly, appellant’s first assignment of error is not well-taken.
{¶ 27} In his second and third assignments of error, appellant argues that he was
not properly served, and therefore the trial court did not have jurisdiction over him.
{¶ 28} Civ.R. 4.1(A)(1)(a) provides for service by certified mail. Civ.R. 4.6(D)
provides that where service by certified mail is returned unclaimed, and the serving party
requests service by ordinary mail, “the clerk shall send by United States ordinary mail a
10. copy of the summons and complaint or other document to be served to the defendant at
the address set forth in the caption, or at the address set forth in written instructions
furnished to the clerk.” “Service shall be deemed complete when the fact of mailing is
entered of record, provided that the ordinary mail envelope is not returned by the postal
authorities with an endorsement showing failure of delivery.” Id.
{¶ 29} In this case, service was first attempted by certified mail, which was
returned unclaimed. Service was then sent by ordinary mail to “Douglas G. Johnson” at
the Deerfield, Michigan address. The ordinary mail envelope was not returned.
{¶ 30} “If the plaintiff follows the Civil Rules governing service of process, courts
presume that service is proper unless the defendant rebuts this presumption with
sufficient evidence of nonservice.” Treasurer of Lucas Cty. v. Mt. Airy Invests. Ltd., 6th
Dist. Lucas No. L-18-1254, 2019-Ohio-3932, ¶ 15, citing Cavalry Invests., LLC v.
Clevenger, 6th Dist. Lucas No. L-05-1103, 2005-Ohio-7003, ¶ 10. “Before finding that
an underlying judgment is void for lack of service, the trial court must determine whether
the defendant presented ‘sufficient evidence of nonservice’ to rebut the presumption of
proper service.” Id., quoting United Home Fed. v. Rhonehouse, 76 Ohio App.3d 115,
125, 601 N.E.2d 138 (6th Dist.1991). “The presumption of proper service can be
rebutted by ‘demonstrating a procedural flaw in the service: use of the wrong address,
receipt by someone who is not a proper person, or untimely mailing or receipt.’” Id.,
quoting Gaston v. Medina Cty. Bd. of Revision, 133 Ohio St.3d 18, 2012-Ohio-3872, 975
N.E.2d 941, ¶ 14.
11. {¶ 31} Appellant claims that service was flawed because it was sent to
“Douglas G. Johnson.” However, where service of process is attempted first by certified
mail and then by ordinary mail, and defendant’s first name is misidentified, service may
be deemed completed where defendant’s surname and address are correct and the
ordinary mail envelope was not returned. Bentz v. Carter, 55 Ohio App.3d 120, 122, 562
N.E.2d 925 (8th Dist.1988) (service on “Barbara A. Carter” instead of “Robert A. Carter”
was proper where complaint identified correct surname and the defendant’s true address);
see also Advance Sign Co., Inc. v. Mak Motel, Inc., 9th Dist. Lorain No. 91CA005041,
1991 WL 215010 (Oct. 16, 1991) (service proper when defendant served as “Bob Patel,”
but his real name is “Bhupendra Patel” and complaint identified Patel as the party named
in the action and Patel’s address was correct).
{¶ 32} In this case, the defendant’s surname was correctly identified as Johnson.
Further, the ordinary mail envelope containing the copy of the complaint and summons
was not returned. Finally, the Deerfield, Michigan address was correct since appellant
never denied that it was his address, and he actually received the default judgment at that
address as evidenced by the fact that he attached to his emergency ex parte motion to
vacate a copy of the envelope that was sent to “Douglas A. Johnson.” Therefore, we hold
that appellant was properly served, and the trial court had jurisdiction to enter the default
judgment.
{¶ 33} Accordingly, appellant’s second and third assignments of error are not
well-taken.
12. {¶ 34} In his fourth and fifth assignments of error, appellant argues that the trial
court erred in denying his Civ.R. 60(B) motion for relief from judgment, and that it erred
in doing so without a hearing. We review the denial of a Civ.R. 60(B) motion for an
abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). An
abuse of discretion connotes that the trial court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶ 35} To prevail on a motion under Civ.R. 60(B), the movant must demonstrate:
“(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.” GTE Automatic Elec., Inc. v. ARC Industries, Inc.,
47 Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976). “These requirements are
independent and in the conjunctive; thus the test is not fulfilled if any one of the
requirements is not met.” Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914
(1994).
{¶ 36} “If the movant files a motion for relief from judgment and it contains
allegations of operative facts which would warrant relief under Civil Rule 60(B), the trial
court should grant a hearing to take evidence and verify these facts before it rules on the
13. motion.” Coulson v. Coulson, 5 Ohio St.3d 12, 16, 448 N.E.2d 809 (1983), quoting
Adomeit v. Baltimore, 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th Dist.1974).
{¶ 37} Here, because appellant has alleged operative facts that would warrant
relief under Civ.R. 60(B), we hold that the trial court erred when it denied appellant’s
motion without a hearing.
{¶ 38} As to the first prong of the GTE test, appellant has alleged two meritorious
defenses. The first is that he has paid the land installment contract. As evidence,
appellant attached several years of his bank statements, many of which show a payment
of $350. The second defense is that appellees fraudulently obtained title to the property
in dispute. In support of this defense, appellant attached the affidavit of James M. Clark
III, in which Clark avers that the July 25, 2018 deed transferring the property back to
appellees was a forgery. Either of these, if true, would constitute a defense in part or in
whole to the cause of action, and are therefore meritorious. See Parts Pro Automotive
Warehouse v. Summers, 2013-Ohio-4795, 4 N.E.3d 1054, ¶ 11 (8th Dist.) (“A defense is
meritorious if it is not a sham and when, if true, it states a defense in part or in whole to
the cause of action set forth.”).
{¶ 39} Turning to the second prong, appellant has alleged that counsel for
appellees has committed a fraud upon the court, which would fall under the catch-all
category of Civ.R. 60(B)(5). See Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 448
N.E.2d 1365 (1983), paragraph one of the syllabus (“Civ.R. 60(B)(5) is intended as a
catch-all provision reflecting the inherent power of a court to relieve a person from the
14. unjust operation of a judgment, but is not to be used as a substitute for any of the other
more specific provisions of Civ.R. 60(B).”). In addressing the difference between “fraud
upon the court” under Civ.R. 60(B)(5) and “fraud” under Civ.R. 60(B)(3), the Ohio
Supreme Court adopted the reasoning that:
“‘Fraud upon the court’ should, we believe, embrace only that species of
fraud which does or attempts to, defile the court itself, or is a fraud
perpetrated by the officers of the court so that the judicial machinery can
not perform in the usual manner its impartial task of adjudging cases that
are presented for adjudication. Fraud, inter partes, without more, should
not be a fraud upon the court, but redress should be left to a motion under
60(b)(3) or to the independent action.” 7 Moore’s Federal Practice
(2 Ed.1971) 515, Paragraph 60.33.
Coulson at 15.
{¶ 40} Specifically, appellant alleges two instances of fraud. The first is that
appellees fraudulently brought an action against the wrong party for purposes of
deception and ultimately obtaining a judgment against appellant. This would fall under
fraud upon the court under Civ.R. 60(B)(5). But, as discussed above, appellees’ mistake
was limited to the misnaming of appellant in the caption of the complaint. The rest of the
complaint, and all other subsequent filings properly named appellant as the defendant.
Consequently, the action was properly commenced against appellant as the defendant.
15. Thus, on this point, appellant has not alleged facts that would constitute fraud upon the
court.
{¶ 41} His second allegation, in contrast, alleges that appellees forged the deed
transferring the property from James M. Clark, III back to them. Thus, appellant is
alleging fraud between the parties, which would fall under Civ.R. 60(B)(3) (“fraud
(whether heretofore denominated intrinsic or extrinsic), misrepresentation or other
misconduct of an adverse party”). However, “the fraud, misrepresentation, or other
misconduct contemplated by Civ.R. 60(B)(3) refers to deceit or other unconscionable
conduct committed by a party to obtain a judgment and does not refer to conduct that
would have been a defense to or claim in the case itself.” Bank of Am., N.A. v. Kuchta,
141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 13. In this case, the allegation of
a forged deed would have been a defense to appellees’ claim. It is not the type of fraud
that deceived appellant to obtain a judgment. Indeed, appellees’ conduct in allegedly
forging the deed did not in any way prevent appellant from defending against appellees’
claim as the affidavit of James M. Clark, III, that appellant relies upon, was signed and
notarized by Clark III on November 7, 2018, which was before appellant was even served
with the complaint by ordinary mail. Thus, appellant has not alleged facts that would
entitle him to relief under Civ.R. 60(B)(3). See Kuchta at ¶ 14 (defendant’s allegation
that bank committed fraud by falsely claiming to be the owner of the note and mortgage
when it filed the foreclosure action did not prevent defendant from appearing and
16. presenting a full defense, and thus did not establish entitlement to relief under Civ.R.
60(B)(3)).
{¶ 42} Alternatively, appellant argues in his brief that the trial court lacked
jurisdiction to foreclose on the property pursuant to R.C. 5313.07, which provides that “If
the vendee of a land installment contract * * * has paid toward the purchase price a total
sum equal to or in excess of twenty per cent thereof, the vendor may recover possession
of his property only by use of a proceeding for foreclosure and judicial sale of the
foreclosed property as provided in section 2323.07 of the Revised Code.” Initially, we
note that R.C. 5313.07 is not a jurisdictional statute, but rather is a limit on the remedies
available to the trial court in an action for breach of a land installment contract.
Nevertheless, while appellant has framed his argument as being jurisdictional, we find
that it also raises the issue that the trial court awarded relief to appellees that it was not
permitted to award, which would fall under the catchall provision of Civ.R. 60(B)(5).
{¶ 43} Civ.R. 54(C) provides that “[a] judgment by default shall not be different in
kind from or exceed in amount that prayed for in the demand for judgment.” “[T]he
limitations on default judgments in Civ.R. 54(C) protect defendants from being subjected
to unpled liability as a consequence of failing to answer a complaint and * * * the
primary purpose of the rule is to afford parties notice of potential liability so they may
determine whether to defend a case.” Fors v. Beroske, 6th Dist. Fulton No. F-12-001,
2013-Ohio-1079, ¶ 25, citing Masny v. Vallo, 8th Dist. Cuyahoga No. 84983, 2005-Ohio-
2178, ¶ 18. “In our view, providing relief from such judgments under Civ.R. 60(B)(5)
17. operates to promote the protections afforded under Civ.R. 54(C) and to present a means
to relieve litigants from unjust operation of judgments violating the rule.” Id. Here, in
their complaint, appellees prayed only for “judgment against the Defendant, David G.
Johnson, in an amount that will be proven at hearing, interest at a rate of 6% pursuant to
the land installment contract as well at (sic) the costs of this action.” When they moved
for default judgment, however, appellees sought—and the trial court awarded—
immediate possession of the property. Because the default judgment award was different
in kind from that prayed for in the complaint, we hold that appellant has alleged operative
facts that would entitle him to relief under Civ.R. 60(B)(5).
{¶ 44} Finally, as to the third prong of the GTE test, we find that the motion for
relief from judgment was filed timely within seven days of the default judgment.
{¶ 45} Therefore, we find that appellant has alleged operative facts that, if proven
true, would entitle him to relief under Civ.R. 60(B). Furthermore, we find that the trial
court’s denial of appellant’s motion without a hearing was arbitrary in that at no point did
the court attempt to address the merits of appellant’s motion, but instead appeared to
summarily deny the motion because appellant did not participate in mediation. As a
result, we hold that the trial court abused its discretion when it denied appellant’s motion
for relief from judgment without a hearing.
{¶ 46} Accordingly, appellant’s fourth and fifth assignments of error are well-
taken.
18. IV. Conclusion
{¶ 47} Having found that the trial court committed prejudicial error to appellant
and that substantial justice has not been done, the judgment of the Toledo Municipal
Court, Housing Division, is reversed and the October 10, 2019 judgment is vacated. This
matter is remanded to the trial court for a hearing on appellant’s motion for relief from
judgment and other further proceedings consistent with this decision. Appellees are
ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
19.