McClain v. Alexander

2023 Ohio 2007, 217 N.E.3d 927

• Court: Ohio Court of Appeals
• Decided: June 16, 2023
• Docket: L-22-1268
• Status: Published

Opinion

[Cite as McClain v. Alexander, 2023-Ohio-2007.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Diana McClain Court of Appeals No. L-22-1268

Appellant Trial Court No. CVG-21-15879

v.

Cheryl R. Alexander DECISION AND JUDGMENT

Appellee Decided: June 16, 2023

*****

Brian J. Ballenger, for appellant.

C. Paul Okafor, for appellee.

MAYLE, J.

{¶ 1} In this landlord-tenant dispute, the plaintiff-appellant, Diana McClain,

appeals a decision by the Toledo Municipal Court, Housing Division that denied her

motion for relief from judgment pursuant to Civ.R. 60(B). The judgment dismissed her claim for unpaid rent and found her liable as to counterclaims, brought by the defendant-

appellee, Cheryl Alexander. Finding no error, we affirm.

I. Background

{¶ 2} McClain (“landlord”) filed suit on December 13, 2021 seeking restitution of

property located at 3734 Douglas Road in Toledo. Landlord also asserted a claim for

back rent, at a rental rate of $700 per month. Soon after filing suit, Alexander (“tenant”)

vacated the property, leaving only the back rent claim to be tried.

{¶ 3} Tenant counterclaimed. She alleged that the property had been without heat,

hot water and electricity for seven months. Tenant complained of other “substandard

conditions,” including a rodent infestation, broken windows, and “unsafe and unsecured

windows and doors.” Tenant sought compensatory damages under Chapter 5321 of the

Ohio Revised Code (“The Ohio Landlords and Tenants Act”) and other common law

claims. Landlord filed an answer, denying any liability.

{¶ 4} The original trial date was set for June 23, 2022, but was rescheduled for

July 28, 2022, and then again for August 25, 2022 at 9:00 a.m.

{¶ 5} When the case was called for trial, at 10:15 a.m. on August 25, 2022, neither

landlord nor her counsel was present. Under questioning by the court, tenant’s counsel

said that he had a conversation with “somebody” regarding “the whereabouts of

[landlord’s counsel].” Tenant’s counsel was told that landlord’s counsel “never got the

notice [of the trial date]” and had been in the courtroom earlier that morning, around 9

2. a.m., on another matter. The trial court indicated that it would “note [landlord] * * *

failed to appear” and granted judgment in favor of tenant, as to both landlord’s claim for

back rent and tenant’s counterclaims. The court then heard testimony and received

evidence regarding tenant’s claim for damages. At the conclusion of the hearing, the trial

court awarded tenant $15,000 in damages, plus attorney’s fees.

{¶ 6} Landlord filed a motion to be relieved from judgment pursuant to Civ.R.

60(B). Landlord claimed that the notice of trial “was never received by [her] Counsel,”

despite the fact “that the docket shows that the [notice] was mailed by the Assignment

Commissioner.” The motion also asserts that landlord’s counsel called landlord “late” in

the morning on the day of trial but was unable to reach her. Finally, the motion indicates

that landlord’s counsel is the prosecutor in a neighboring municipal jurisdiction and “has

a docket on Thursdays,” which prevented him from being able to try the case on the day

it was called. Landlord reminded the court that her counsel was “at every [other] court

date scheduled in this matter.” For those reasons, landlord prayed that the motion be

granted and a new trial scheduled. Tenant opposed the motion.

{¶ 7} By judgment dated October 5, 2022, the trial court denied landlord’s motion

for relief. On October 12, 2022, the trial court awarded tenant $4,658.80 in attorney fees,

following submission of affidavits by tenant, for a total judgment of $19,658.80.

{¶ 8} Landlord appealed the October 12, 2022 judgment and asserts two

assignments of error for our review.

3. ASSIGNMENT OF ERROR NO. 1: The Court erred and abused

its discretion in denying Plaintiff-Appellant’s Motion to vacate its Entry

under Civ.R. 60(B).

ASSIGNMENT OF ERROR NO. 2: The Court committed

reversible error by granting judgment in favor of Defendant/Appellee

without requiring any evidence to be submitted prior to granting judgment.

II. The trial court did not abuse its discretion when it denied landlord’s Civ.R. 60(B) motion.

{¶ 9} Civ.R. 60 (“Relief from judgment or order”) provides, in relevant part,

(B) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered

Evidence; Fraud; Etc. 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 the judgment. The motion shall

4. 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.

{¶ 10} To prevail on a Civ.R. 60(B) motion, 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 * * *. GTE Automatic Elec., Inc. v. ARC

Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. If

any one of the three GTE requirements is not met, the motion should be overruled. Rose

Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).

{¶ 11} The decision to grant or deny a motion for relief from judgment pursuant to

Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed absent

an abuse of the discretion. Strack v. Pelton, 70 Ohio St.3d 172, 637 N.E.2d 914 (1994).

An abuse of discretion is more than an error of judgment; it means that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 450 N.E.2d 1140 (1983).

{¶ 12} In its decision, the trial court found,

Because [landlord] does not cite a specific subsection of Rule 60(B),

the court construes the motion under Rule 60(B)(5), given that Plaintiff’s

5. cause for relief lies under the allegation that the physical notification of the

trial date was not received by [landlord’s] counsel.

Ohio courts have consistently recognized that the failure of an

attorney to appeal and represent their client does not constitute grounds for

relief under Rule 60(B)(1). CB Group, Inc., v. Hosp., L.L.C., 8th Dist.

Cuyahoga No. 93387, 2009-Ohio-6652. It is also well established that Rule

60(B)(5) does not protect a party “who ignores its duty to protect its

interest.” Lebanon Auto Parts v. Dracakis, 12th Dist. Warren No. CA99-

09-110, 2000 WL 433240 (Apr. 17, 2000), quoting Mount Olive Baptist

Church v. Papkins Paints, 64 Ohio App.2d 285, 414 N.E. 850 (8th

Dist.1979). This, compounded with the fact that both [landlord] themselves

[sic] along with [landlord’s] counsel failed to appear for the third trial date

of the matter, the fact that the court’s certified journal entry indicates that

notice was sent to both parties successfully, and the fact that [landlord] was

unreachable by their [sic] own counsel, all culminate in the failure of

[landlord] to demonstrate entitlement to relief under one of the grounds

stated in Rule 60(B). As failure of a single prong of the GTE test is fatal to

relief, the court will not examine any of the other prongs.

6. {¶ 13} On appeal, landlord challenges the trial court’s decision to analyze her

motion under Civ.R. 60(B)(5). She claims, “[c]learly, lack of notice of the trial date * * *

should be considered * * * excusable neglect” under Civ.R. 60(B)(1). We disagree.

{¶ 14} As the trial court noted, “[a]n attorney’s failure to appear and represent his

client is not an ‘excusable neglect’ ground under Civ.R. 60(B)(1).” CB Grp., Inc. v.

Starboard Hosp., L.L.C., 8th Dist. Cuyahoga No. 93387, 2009-Ohio-6652, ¶ 21 citing

Whitt v. Bennett, 82 Ohio App.3d 792, 798, 613 N.E.2d 667 (8th Dist.1992) (Noting that

Civ.R. 60(B)(1) is reserved for “matters that concern simple lapses and technical

failures.”). However, an attorney’s failure to represent his client may constitute

“inexcusable neglect,” thereby entitling a party to relief under Civ.R. 60(B)(5). CB Grp.

at ¶ 21 (“Matters of the extraordinary nature are more accurately under the purview of

Civ.R. 60(B)(5).”). In GB Grp., the court found that a party was entitled to relief where

he “demonstrated through his affidavit, which was attached to his motion to vacate

judgment, that his attorney[s] * * * abandoned their representation of him.” Id. at ¶ 22.

{¶ 15} In this case, landlord does not account for the alleged “lack of notice.”

That is, she makes no attempt to explain—through sworn testimony or otherwise—why

the docket indicates that notice was sent if notice was not received, nor does she indicate

what efforts, if any, were taken to track the source of the error. We also take particular

note of landlord’s assertion that, after counsel learned at 10:15 a.m. that trial was set for

that day, August 25, 2022, “the next information [counsel] received was the Notice of the

7. Judgment against [landlord] 12 days later.” (Appellant’s brief at 1; emphasis added.)

We conclude from this assertion that—in those 12 days—neither landlord nor counsel

attempted to confirm whether the trial had gone forward or the results. In sum, we see no

evidence that the trial court abused its discretion in finding that landlord was not entitled

to relief under Civ.R. 60(B)(5). Accord Jo–Rene Corp. v. Jastrzebski, 8th Dist.

Cuyahoga Nos. 79933, 80310, 2002-Ohio-1550 (Although defense counsel’s

representation may have been deficient, relief from judgment was not warranted pursuant

to Civ.R. 60(B)(5), because the defendant had constructive notice of the hearing through

the trial court’s docket).

{¶ 16} Although this alone is reason to affirm the trial court’s judgment, we will

also address landlord’s claim on appeal that she “would have provided a meritorious

defense” if relief had been granted.

{¶ 17} “To show the existence of a meritorious defense under Civ.R. 60(B), the

movant need not establish ultimate success on the merits.” K. Ronald Bailey & Assoc.,

L.P.A. v. Martin, 6th Dist. Erie No. E-08-057, 2009-Ohio-2932, ¶ 15, citing Natl. City

Bank v. Mulinex, 6th Dist. Lucas No. L-05-1066, 2005-Ohio-5460, ¶ 13. However, “‘the

movant must provide the trial court with operative facts that would constitute a

meritorious defense if found to be true.’” Id., quoting Natl. City Bank. And, the

operative facts must be alleged “with enough specificity to allow the trial court to decide

whether the movant has met that test.” Id., quoting Syphard v. Vrable, 141 Ohio App.3d

8. 460, 463, 751 N.E.2d 564 (6th Dist.2001). In K. Ronald Bailey, we found that the trial

court abused its discretion in granting relief under Civ.R. 60(B) where the movant “failed

to assert a meritorious defense or claim of any kind.” Id. at ¶ 15.

{¶ 18} Here, although landlord now argues that she would have provided a

meritorious claim or defense, her motion before the trial court failed to make any such

assertion. Likewise, landlord failed to present any evidentiary material in support of the

motion from which the requisite operative facts supporting relief from judgment could

have been ascertained. Because landlord did not meet her burden to allege the existence

of a meritorious claim or defense, or any operative facts in support thereof, we find that

the trial court did not abuse its discretion in denying her motion for relief from judgment.

{¶ 19} If any one of the three GTE requirements is not met, the motion should be

overruled. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).

Here, landlord failed to show that she was entitled to relief under the first and second

prongs of the GTE test. We therefore find that the trial court did not abuse its discretion

in denying landlord’s motion. Landlord’s first assignment of error is found not well-

taken.

III. The trial court did not err in granting tenant judgment as to her counterclaims.

{¶ 20} In her second assignment of error, landlord claims that “the Court granted

judgment for [tenant] without taking any evidence.” Specifically, landlord claims that no

evidence was presented regarding “the owner of the real property, whether [a] rental

9. agreement existed, and * * * fault.” Landlord also complains that the court granted

judgment in tenant’s favor despite the absence of any motion for judgment on the

pleadings. She argues that it was error to enter judgment against her under these

circumstances. Again, we disagree.

{¶ 21} “After the pleadings are closed but within such time as not to delay the

trial, any party may move for judgment on the pleadings.” Civ.R. 12(C). “A

determination of a motion for judgment on the pleadings is limited to the allegations in

the pleadings and any documents attached and incorporated thereto.” (Citations omitted.)

M. C. v. Choudhry, 9th Dist. Summit Nos. 29859, 29866, 2022-Ohio-915, ¶ 29.

{¶ 22} In her complaint, it was landlord who alleged that she “is the Owner/Agent

of the premises located at 3734 Douglas Rd., Toledo 43613, Lucas County, Ohio.” In

support, she attached to the complaint a document indicating that the property was

transferred to landlord on November 4, 2020. Landlord also alleged that tenant was “in

default of * * * her lease or rental agreement [due to] Non Payment.”

{¶ 23} Likewise, in tenant’s answer and counterclaim, she alleged that landlord

violated R.C. 5321.04 for “failing to maintain the rental unit in a safe and habitable

condition, despite [tenant’s] repeated requests that they [sic] do so. Specifically,

[landlord] failed to remedy the rodent infestation, the broken windows, the unsecured

door to the roof, the furnace, the hot water tank, the broken backyard staircase, and the

cracked front screen door.” Upon review, we find that the allegations set forth in the

10. pleadings, taken as true, establish ownership of the property, the existence of a rental

agreement, and landlord’s liability.

{¶ 24} We further note that, after granting judgment in favor of tenant, the trial

court heard testimony and received evidence regarding the living conditions of the

property. Tenant testified that, when the ownership of the home transferred to landlord,

she agreed that the conditions—including rats that were living in the back yard—would

be “taken care of.” One month later, landlord “made it clear to [tenant] that she wasn’t

going to fix anything.” Landlord even told tenant to put some gloves on and “pick [the

rats] up” herself. Although tenant’s $750 monthly rental rate included utilities, landlord

turned the lights, water and gas off “in the middle of winter.” According to tenant, “[i]t

was freezing,” and tenant was “scared” because she had a new baby, along with a five

and six-year old. Tenant paid rent “for about six months * * * in full,” and in that six

months, the home was without utilities for four months, ultimately forcing tenant to move

out and live at a hotel or with family. Moreover, when the utilities were shut off, the

inside of the house became “infested with rats * * *.” According to tenant, the rats

“made nests, they ate up everything. We lost everything, everything.” In support of her

claims, tenant submitted photographs of the interior and exterior of the property.

{¶ 25} We find that the trial court did not err in entering judgment in favor of

tenant, based upon the allegations set forth in the pleadings and the documents attached

thereto. We also find that the trial court did not err in granting judgment, even in the

11. absence of an express motion under Civ.R. 12(C). See, e.g., Id. at ¶ 29. (“[T]he trial

court was permitted to sua sponte enter judgment on the pleadings * * *). For these

reasons, we find landlord’s second assignment of error not well-taken.

IV. Conclusion

{¶ 26} We find that the trial court did not abuse its discretion in denying

landlord’s motion for relief from judgment and further did not err in granting judgment in

favor of tenant as to tenant’s counterclaims. Accordingly, we find that landlord’s

assignments of error are not well-taken, and the October 12, 2022 judgment of the Toledo

Municipal Court if affirmed. Landlord is ordered to pay the costs of this appeal pursuant

to App.R. 24. It is so ordered.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

12. Diana McClain v. Cheryl R. Alexander L-22-1268

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, 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/.

13.