[Cite as Muskingum Watershed Conservancy Dist. v. Kellar, 2011-Ohio-6889.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: MUSKINGUM WATERSHED : W. Scott Gwin, P.J. CONSERVANCY DISTRICT : John W. Wise, J. : Julie A. Edwards, J. Plaintiff-Appellee : : Case No. 2011AP020009 -vs- : : : OPINION BRUCE KELLAR
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County Court of Common Pleas Case No. 2010CV080911
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 30, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
J. KEVIN LUNDHOLM JAMES J. ONG JONATHAN C. MIZER Connolly, Hillyer, Lindsay Kyler, Pringle, Lundholm & Ong, Inc. & Durmann, L.P.A. 201 N. Main Street 405 Chauncey Avenue, N.W. P.O. Box 272 P.O. Box 668 Uhrichsville, Ohio 44683 New Philadelphia, Ohio 44663 [Cite as Muskingum Watershed Conservancy Dist. v. Kellar, 2011-Ohio-6889.]
Edwards, J.
{¶1} Appellant, Bruce Kellar, appeals a judgment of the Tuscarawas County
Common Pleas Court overruling his Civ. R. 60(B) motion to vacate a default judgment
entered in favor of appellee Muskingum Watershed Conservancy District.
STATEMENT OF FACTS AND CASE
{¶2} In 2000, appellant entered into a lease with appellee for a parcel of real
property in Tuscarawas County, Ohio. Appellee leases cottage sites around fourteen
lakes within its jurisdiction, on which the lessee may build a cottage or purchase a
cottage from a prior lessee. The lease agreement includes guidelines concerning the
maintenance of the property.
{¶3} Appellee alleged that appellant violated the lease by keeping inoperative
or unlicensed vehicles on his property; allowing brush, debris and several containers of
cat litter to accumulate on the property and failing to restrain his dogs. Appellee gave
appellant notice on several occasions that he was in violation of the lease and provided
appellant with notice of termination of the lease on July 9, 2010. The lease termination
was effective August 8, 2010.
{¶4} Appellee filed the instant action alleging breach of contract and seeking a
declaratory judgment against appellant on August 10, 2010. Service was attempted by
certified mail but returned unclaimed. The summons and complaint were sent to
appellant by regular mail pursuant to Civ. R. 4(D) on September 3, 2010.
{¶5} Appellee moved for default judgment on October 12, 2010, as appellant
failed to file an answer to the complaint. The trial court granted the motion for default Tuscarawas County App. Case No. 2011AP020009 3
judgment, ordering appellant to vacate the property within 30 days and ordering any
property not removed from the property to be sold.
{¶6} Appellant filed a motion to vacate the judgment pursuant to Civ. R. 60(B).
In his motion he argued that he was entitled to relief due to excusable neglect and
inadvertence because he was under the impression that an order would be issued
authorizing clean up of his property, but was not aware that the court would order
foreclosure on the property. He argued that he had “numerous defenses to the action”
without specifying what such defenses might be.
{¶7} The court held an evidentiary hearing on January 24, 2011. Appellant
testified the he remembered receiving paperwork about the lawsuit in the fall, and he
thought that by telling one of the rangers employed by appellee about the things his
neighbors were doing to him, it would be put in a computer somewhere and filed. He
testified that he didn’t know they could tell him he had to sell his house and get out, he
thought they would make him clean up the property. He testified that his understanding
about what the lawsuit was about came from talking to people and he did not bother to
read anything he might have received from the Clerk of Courts because “everybody’s
telling me I gotta clean up my property.” Tr. 57. Appellant testified at great length about
his complaints concerning his neighbors’ behavior and maintenance of their property,
arguing that he has been singled out for eviction while others are in violation of the
lease as well.
{¶8} The court overruled the motion, finding that while the motion was timely
filed, appellant failed to demonstrate that he was entitled to relief on one of the grounds Tuscarawas County App. Case No. 2011AP020009 4
specified in Civ. R. 60(B)(1) through (5), and failed to demonstrate that he had a
meritorious defense to the action.
{¶9} Appellant sets forth a single assignment of error:
{¶10} “THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT.”
{¶11} Civ. R. 60(B) provides:
{¶12} “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 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.”
{¶13} In GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146,
150-151, 351 N.E.2d 113, the Ohio Supreme Court set forth the factors necessary to
recover under Civ.R. 60(B). “[T]he 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 Tuscarawas County App. Case No. 2011AP020009 5
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.” Where any one of the foregoing requirements is not satisfied, Civ.R. 60(B)
relief is improper. State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 1996-Ohio-
54, 666 N.E.2d 1134. “A motion for relief from judgment under Civ. R. 60(B) is
addressed to the sound discretion of the trial court, and that court's ruling will not be
disturbed on appeal absent a showing of abuse of discretion.” Griffey v. Rajan (1987),
33 Ohio St.3d 75, 77, 514 N.E.2d 1122.
{¶14} Appellant does not argue in his brief that the trial court erred in finding that
he failed to demonstrate that he was entitled to relief on one of the grounds specified in
Civ. R. 60(B)(1)-(5). However, in his motion he argued excusable neglect or
inadvertence.
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[Cite as Muskingum Watershed Conservancy Dist. v. Kellar, 2011-Ohio-6889.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: MUSKINGUM WATERSHED : W. Scott Gwin, P.J. CONSERVANCY DISTRICT : John W. Wise, J. : Julie A. Edwards, J. Plaintiff-Appellee : : Case No. 2011AP020009 -vs- : : : OPINION BRUCE KELLAR
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County Court of Common Pleas Case No. 2010CV080911
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 30, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
J. KEVIN LUNDHOLM JAMES J. ONG JONATHAN C. MIZER Connolly, Hillyer, Lindsay Kyler, Pringle, Lundholm & Ong, Inc. & Durmann, L.P.A. 201 N. Main Street 405 Chauncey Avenue, N.W. P.O. Box 272 P.O. Box 668 Uhrichsville, Ohio 44683 New Philadelphia, Ohio 44663 [Cite as Muskingum Watershed Conservancy Dist. v. Kellar, 2011-Ohio-6889.]
Edwards, J.
{¶1} Appellant, Bruce Kellar, appeals a judgment of the Tuscarawas County
Common Pleas Court overruling his Civ. R. 60(B) motion to vacate a default judgment
entered in favor of appellee Muskingum Watershed Conservancy District.
STATEMENT OF FACTS AND CASE
{¶2} In 2000, appellant entered into a lease with appellee for a parcel of real
property in Tuscarawas County, Ohio. Appellee leases cottage sites around fourteen
lakes within its jurisdiction, on which the lessee may build a cottage or purchase a
cottage from a prior lessee. The lease agreement includes guidelines concerning the
maintenance of the property.
{¶3} Appellee alleged that appellant violated the lease by keeping inoperative
or unlicensed vehicles on his property; allowing brush, debris and several containers of
cat litter to accumulate on the property and failing to restrain his dogs. Appellee gave
appellant notice on several occasions that he was in violation of the lease and provided
appellant with notice of termination of the lease on July 9, 2010. The lease termination
was effective August 8, 2010.
{¶4} Appellee filed the instant action alleging breach of contract and seeking a
declaratory judgment against appellant on August 10, 2010. Service was attempted by
certified mail but returned unclaimed. The summons and complaint were sent to
appellant by regular mail pursuant to Civ. R. 4(D) on September 3, 2010.
{¶5} Appellee moved for default judgment on October 12, 2010, as appellant
failed to file an answer to the complaint. The trial court granted the motion for default Tuscarawas County App. Case No. 2011AP020009 3
judgment, ordering appellant to vacate the property within 30 days and ordering any
property not removed from the property to be sold.
{¶6} Appellant filed a motion to vacate the judgment pursuant to Civ. R. 60(B).
In his motion he argued that he was entitled to relief due to excusable neglect and
inadvertence because he was under the impression that an order would be issued
authorizing clean up of his property, but was not aware that the court would order
foreclosure on the property. He argued that he had “numerous defenses to the action”
without specifying what such defenses might be.
{¶7} The court held an evidentiary hearing on January 24, 2011. Appellant
testified the he remembered receiving paperwork about the lawsuit in the fall, and he
thought that by telling one of the rangers employed by appellee about the things his
neighbors were doing to him, it would be put in a computer somewhere and filed. He
testified that he didn’t know they could tell him he had to sell his house and get out, he
thought they would make him clean up the property. He testified that his understanding
about what the lawsuit was about came from talking to people and he did not bother to
read anything he might have received from the Clerk of Courts because “everybody’s
telling me I gotta clean up my property.” Tr. 57. Appellant testified at great length about
his complaints concerning his neighbors’ behavior and maintenance of their property,
arguing that he has been singled out for eviction while others are in violation of the
lease as well.
{¶8} The court overruled the motion, finding that while the motion was timely
filed, appellant failed to demonstrate that he was entitled to relief on one of the grounds Tuscarawas County App. Case No. 2011AP020009 4
specified in Civ. R. 60(B)(1) through (5), and failed to demonstrate that he had a
meritorious defense to the action.
{¶9} Appellant sets forth a single assignment of error:
{¶10} “THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT.”
{¶11} Civ. R. 60(B) provides:
{¶12} “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 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.”
{¶13} In GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146,
150-151, 351 N.E.2d 113, the Ohio Supreme Court set forth the factors necessary to
recover under Civ.R. 60(B). “[T]he 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 Tuscarawas County App. Case No. 2011AP020009 5
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.” Where any one of the foregoing requirements is not satisfied, Civ.R. 60(B)
relief is improper. State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 1996-Ohio-
54, 666 N.E.2d 1134. “A motion for relief from judgment under Civ. R. 60(B) is
addressed to the sound discretion of the trial court, and that court's ruling will not be
disturbed on appeal absent a showing of abuse of discretion.” Griffey v. Rajan (1987),
33 Ohio St.3d 75, 77, 514 N.E.2d 1122.
{¶14} Appellant does not argue in his brief that the trial court erred in finding that
he failed to demonstrate that he was entitled to relief on one of the grounds specified in
Civ. R. 60(B)(1)-(5). However, in his motion he argued excusable neglect or
inadvertence.
{¶15} A failure to plead or respond after admittedly receiving a copy of a
complaint is not “excusable neglect.” Katko v. Modic (1993), 85 Ohio App.3d 834, 838,
621 N.E.2d 809, 811-812. Likewise, the neglect of an individual to seek legal assistance
after being served with court papers is not excusable. Associated Estates Corp. v.
Fellows (1983), 11 Ohio App.3d 112, 116, 11 OBR 166, 170-171, 463 N.E.2d 417, 421-
422. It is settled law that mere carelessness on a litigant's part is not sufficient to rise
to the level of “mistake, inadvertence, surprise, or excusable neglect.” Bugbee & Conkle
v. N. G. Food Corp (December 17, 1982), Lucas App. No. L-82-264, unreported, citing
United States v. McDonald (N.D. Ill., 1980), 86 F.R.D. 204, 207. Tuscarawas County App. Case No. 2011AP020009 6
{¶16} Appellant testified that he was aware of the lawsuit through talking to other
people, but believed that it only related to ordering him to clean up his property and that
he could “answer” the complaint by talking to a ranger:
{¶17} “Q. Do you remember receiving lawsuit paperwork from the MWCD,
paperwork that generated our hearing here today ultimately?
{¶18} “A. Yeah.
{¶19} “Q. And about when did you get that if you remember?
{¶20} “A. This Fall.
{¶21} “Q. Do you remember that paperwork telling you that you had 28 days
time in which to file a response with the conservancy district lawyer and then file a copy
with the Clerk of Court’s office?
{¶22} “A. No.
{¶23} “Q. What kind of response did you think you needed to give back to the
Court based on that paperwork that you had received?
{¶24} “A. None. I talked to Jeremy and one of the other Rangers.
{¶25} “Q. Mr. Hoffer that was in here today?
{¶26} “A. Yes.
{¶27} “Q. Tell us what did you talk to him about?
{¶28} “A. Well, about things my neighbors were doing to me and I thought, you
know, if I report it to a Ranger it would get typed into a computer somewhere and be
filed. But from what I hear today all the complaints I’ve been making for about ten years
they don’t act on anything. Tuscarawas County App. Case No. 2011AP020009 7
{¶29} “Q. What did you think would happen if you didn’t file a formal response
here with the Court?
{¶30} “A. I didn’t know they could tell me I had to sell my house and get out of
there.
{¶31} “Q. What did you think could happen? Worse case scenario in your mind
what was going to happen?
{¶32} “A. That they would send somebody out to trim those fallen trees and send
me a bill for doing it.” Tr. 29-31
{¶33} “Q. You indicate in your affidavit, Mr. Kellar, that it was you (sic)
understanding that the remedy being sought in this lawsuit was simply for an order to
clean up your property.
{¶34} “A. Yeah.
{¶35} “Q. How did you get that understanding without reading it?
{¶36} “A. Talking to people.” Tr. 56.
{¶37} He further admitted that he did not read documents that came to him from
the Clerk of Courts:
{¶38} “THE WITNESS: And I’m thinking what the hell is going on with a Sheriff’s
sale? I don’t owe any money on my house to nobody.
{¶39} “THE COURT: Is that when you went to Mr. Ong?
{¶40} “THE WITNESS: Yes.
{¶41} “Q. Is it fair to say, sir, that you did not bother to read anything that you
may have received up until that point in time from the Clerk of Courts office? Tuscarawas County App. Case No. 2011AP020009 8
{¶42} “A. Yeah, that’s true. I mean everybody’s telling me I gotta clean up my
property.” Tr. 57.
{¶43} Clearly appellant chose to ignore the documents he received, to rely on
neighborhood talk as to what the lawsuit was about, and to rely on appellee’s
employees to “answer” his complaint for him when he told them his side of the story.
This does not rise to the level of excusable neglect or inadvertence.
{¶44} Appellant argues that he presented a meritorious defense in that he was
singled out for eviction while others were in violation of the lease, and that despite his
complaints to appellee, nothing was done about his neighbors. However, the evidence
reflected that in the past, appellee has been able to resolve issues with lessees to its
satisfaction without filing a request to terminate the lease. Tr. 27. The evidence further
reflected that while appellant testified at length regarding his complaints about the
behavior of his neighbors and the manner in which they maintain their property, he
presented absolutely no evidence that he was not in violation of the lease terms. He
presented no evidence of any discriminatory intent on the part of appellee nor did he
present any evidence that he attempted to cooperate with appellee to address the
concerns on his property. His claim that he was entitled to break the terms of the lease
and refuse to comply unless and until he believed all other tenants were in compliance
with the lease is not a meritorious defense. Tuscarawas County App. Case No. 2011AP020009 9
{¶45} The trial court did not abuse its discretion in overruling appellant’s motion
to vacate the default judgment. The assignment of error is overruled.
{¶46} The judgment of the Tuscarawas County Common Pleas Court is
affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
JUDGES
JAE/r1101 [Cite as Muskingum Watershed Conservancy Dist. v. Kellar, 2011-Ohio-6889.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MUSKINGUM WATERSHED : CONSERVANCY DISTRICT : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : BRUCE KELLAR : : Defendant-Appellant : CASE NO. 2011AP020009
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Tuscarawas County Court of Common Pleas is affirmed. Costs
assessed to appellant.
_________________________________