[Cite as PHH Mtge. Corp. v. Northrup, 2011-Ohio-6814.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
PHH MORTGAGE CORPORATION, :
Plaintiff-Appellee, : Case No. 11CA6
vs. :
GARY NORTHUP, et al., : DECISION AND JUDGMENT ENTRY
Defendant-Appellants. :
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANTS: Brian K. Duncan and Bryan D. Thomas, 155 East Broad Street, Suite 2200, Columbus, Ohio 43215
COUNSEL FOR APPELLEE: David M. Gauntner, 1500 West 3rd Street, Suite 400, Cleveland, Ohio 44113
CIVIL CASE FROM COMMON PLEAS COURT DATE JOURNALIZED: 12-27-11
ABELE, J.
{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment that denied
a motion for relief from judgment filed by Gary Northup, defendant below and appellant herein.
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO VACATE ITS JULY 22, 2010 AND/OR DECEMBER 27, 2010 JUDGMENT ENTRIES AS DEFENDANT/APPELLANT MADE THE REQUISITE SHOWING UNDER CIV.R. 60(B) IN HIS MOTION TO VACATE.” PICKAWAY, 11CA6 2
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT/APPELLANT’S REQUEST FOR AN ORAL HEARING ON HIS MOTION TO VACATE, DESPITE THE FACT THAT THERE WERE ALLEGATIONS OF OPERATIVE FACTS WHICH WOULD WARRANT RELIEF UNDER CIVIL RULE 60(B).”
{¶ 3} On October 3, 2008, PHH Mortgage Corporation, plaintiff below and appellee herein,
filed a foreclosure complaint against appellant, Jane Doe (appellant’s unknown spouse), and the
Pickaway County Treasurer. Appellee subsequently added two other defendants, who are not part
of this appeal.
{¶ 4} On February 22, 2010, appellee filed a summary judgment motion and a default
judgment motion. Appellee asserted that no genuine issues of material fact remain as to whether
appellant has defaulted on his mortgage obligation and that it is entitled to judgment as a matter of
law. Appellee further contended that Jane Doe and another defendant were in default for failure to
answer and that it is entitled to a default judgment against those two parties.
{¶ 5} On February 22, 2010, the trial court granted appellee summary judgment and entered
a default judgment against the two defendants who had failed to answer.
{¶ 6} On March 31, 2010, the trial court vacated its February 22, 2010 summary
judgment. The court observed that it had failed to allow appellant time to respond to appellee’s
summary judgment motion. The court thus vacated its summary judgment and allowed appellant
fourteen days from March 31, 2010 to respond. Appellant, however, never filed any
memorandum in opposition to appellee’s summary judgment motion.
{¶ 7} On July 22, 2010, the trial court entered summary judgment in appellee’s favor. PICKAWAY, 11CA6 3
On December 27, 2010, the court entered an amended summary judgment. On March 21, 2011,
appellee filed a notice that a sheriff’s sale would occur on March 29, 2011.
{¶ 8} On March 28, 2011, appellant filed a “combined motion to vacate this court’s July
22, 2010 and/or December 27, 2010 judgment entries and/or any and all entries granting summary
judgment or default judgment to plaintiff against defendant Gary Northup; motion for stay of
execution of sheriff’s sale scheduled for March 29, 2011; and motion for leave to respond to
plaintiff’s motion for summary judgment and/or for leave to file amended answer.” Appellant
alleged that his failure to respond to the summary judgment motion resulted from inadvertence or
excusable neglect under Civ.R. 60(B)(1). Appellant explained that he thought his former counsel
had been negotiating with appellee to modify the loan. He thought “he had been engaging in a
loan modification program and that the instant matter had been stayed, which he never received
notice of said reinstatement.” Appellant further alleged that his former counsel did not raise
proper claims, defenses and counterclaims in the original answer and that his former counsel failed
to respond to appellee’s summary judgment motion. Appellant additionally argued that the
interests of justice required the court to grant him relief under Civ.R. 60(B)(5).
{¶ 9} On March 29, 2011, the trial court overruled appellant’s motion. The court
observed that appellant “had ample time to dispute or appeal” any of its rulings. The court found
that appellant’s primary purpose in filing the motion, one day before the sheriff’s sale, was to delay
the sale. This appeal followed.
I
{¶ 10} In his first assignment of error, appellant asserts that the trial court erred by
overruling his Civ.R. 60(B) motion for relief from judgment. We disagree. PICKAWAY, 11CA6 4
{¶ 11} Our standard of review regarding a trial court’s Civ.R. 60(B) decision is
well-settled:
“Absent an abuse of discretion, we will not disturb a trial court’s decision to grant or deny a Civ.R. 60(B) motion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. The term ‘abuse of discretion’ implies that the court’s attitude is unreasonable, unconscionable, or arbitrary. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144. When applying the abuse-of-discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181.”
Dye v. Smith, 189 Ohio App.3d 116, 2010-Ohio-3539, 937 N.E.2d 628, ¶12.
{¶ 12} 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 the judgment.
{¶ 13} 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.”
GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the
syllabus. A failure to establish any one of the foregoing circumstances is ordinarily fatal to the
Civ.R. 60(B) motion. See Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, 520 PICKAWAY, 11CA6 5
N.E.2d 564 (stating that the trial court should overrule a Civ.R. 60(B) motion if the movant fails to
meet any one of the foregoing three requirements); GTE, 47 Ohio St.2d at 151 (stating that the
three requirements are “conjunctive”).
{¶ 14} In the case sub judice, appellant claims that either Civ.R. 60(B)(1) or (5) entitles
him to relief from the trial court’s summary judgment. Civ.R. 60(B)(1) allows a court to relieve a
party from a final judgment due to the party’s “* * * inadvertence * * * or excusable neglect.”
{¶ 15} Inadvertence is “[a]n accidental oversight; a result of carelessness.” Guider v. Am.
Heritage Homes Corp., Logan App. No. 8–07–16, 2008-Ohio-2402, ¶7, quoting Black’s Law
Dictionary (7th Ed.Rev.1999) 762.
{¶ 16} When a court evaluates whether a movant has demonstrated excusable neglect, the
court “must of necessity take into consideration all the surrounding facts and circumstances.”
Colley v. Bazell (1980), 64 Ohio St.2d 243, 249, 416 N.E.2d 605. In Vanest v. Pillsbury Co.
(1997), 124 Ohio App.3d 525, 706 N.E.2d 825, we discussed the term “excusable neglect”:
“Although ‘[t]he term “excusable neglect” is an elusive concept’ that courts often find difficult to define and to apply, Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 20, 665 N.E.2d 1102, the cases discussing excusable neglect reveal some general principles. First, many cases characterize the type of conduct that does not constitute excusable neglect. Inaction of a party that can be labeled as a ‘complete disregard for the judicial system’ constitutes inexcusable neglect. GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 153, 1 O.O.3d 86, 90, 351 N.E.2d 113. Additionally, attorney conduct falling ‘substantially below what is reasonable under the circumstances’ constitutes inexcusable neglect. Id. at 152, 351 N.E.2d 113. Second, a majority of the cases finding excusable neglect also have found unusual or special circumstances that justified the neglect of the party or attorney. Other cases, however, despite the presence of special or unusual circumstances, declined to find excusable neglect. The cases generally suggest that if the party or his attorney could have controlled or guarded against the happening of the special or unusual circumstance, the neglect is not excusable. Third, excusable neglect may exist when a party has neither knowledge nor actual notice of the lawsuit. Finally, the demands of being a busy PICKAWAY, 11CA6 6
lawyer or of being preoccupied with other litigation generally do not constitute excusable neglect.”
Id. at 536-537 (footnotes omitted). We note that in general, a party’s failure to “to plead or
respond after admittedly receiving a copy of a court document is not ‘excusable neglect.’” Natl.
City Home Loans Serv., Inc. v. Gillette, Scioto App. No. 05CA3027, 2006-Ohio-2881, ¶18, citing
Katko v. Modic (1993), 85 Ohio App.3d 834, 838, 621 N.E.2d 809, and Andrew Bihl Sons, Inc. v.
Trembly (1990), 67 Ohio App.3d 664, 667, 588 N.E.2d 172.
{¶ 17} In Vanest, we further noted the distinction between “excusable neglect” and mere
“neglect,” as Black’s Law Dictionary defines the terms. “‘[E]xcusable neglect’ [means] * * * ‘a
failure to take the proper steps at the proper time, not in consequence of the party’s own
carelessness, inattention, or willful disregard of the process of the court, but in consequence of
some unexpected or unavoidable hindrance or accident, or reliance on the care and vigilance of his
counsel or on promises made by the adverse party.’” Id. at 537, fn.8, quoting Black’s Law
Dictionary (6 Ed.1990) 566. In contrast, mere “neglect” means “‘to omit, fail, or forbear to do a
thing that can be done, or that is required to be done, but it may also import an absence of care or
attention in the doing or omission of a given act. And it may mean a designed refusal,
indifference, or unwillingness to perform one’s duty.’” Id., at 1032, fn. 13.
{¶ 18} Courts ordinarily impute the neglect of a party’s attorney to that party when
determining whether the facts demonstrate excusable neglect. GTE, paragraph four of the
syllabus; Newell v. White, Pickaway App. No. 05CA27, 2006-Ohio-637, ¶12; Williams v. Roe
(Feb. 2, 1996), Scioto App. No. 95CA2373. Thus, ordinarily, a party cannot establish excusable
neglect simply by casting blame upon the party’s attorney. But, see, Whitt v. Bennett (1992), 82 PICKAWAY, 11CA6 7
Ohio App.3d 792, 613 N.E.2d 667 (“[F]ault should not automatically be imputed when an attorney
has grossly neglected a diligent client’s case and misleads the client to believe that his interests are
being properly handled.”). It is only when that neglect rises to the level of excusable neglect that
Civ.R. 60(B)(1) relief may be had. See Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio
St.3d 64, 68, 479 N.E.2d 879.
{¶ 19} The Ohio Supreme Court has recognized the perceived injustice that results to the
client as a result of the imputed neglect rule, but has further explained that the client voluntarily
chose the attorney and, thus, must live with the consequences of that chosen representation. See
GTE, supra. The court explained:
“There is certainly no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ [Smith v. Ayer (1879), 101 U.S. 320, 25 L.Ed.2d 955.] ****
* * * Surely if a criminal defendant may be convicted because he did not have the presence of mind to repudiate his attorney’s conduct in the course of a trial, a civil (defendant) may be deprived of his (defense) if he failed to see to it that his lawyer acted with dispatch in the prosecution of his lawsuit. And if an attorney’s conduct falls substantially below what is reasonable under the circumstances, the client’s remedy is against the attorney in a suit for malpractice. But keeping this suit alive merely because * * * (defendant) should not be penalized for the omissions of his own attorney would be visiting the sins of * * * (defendant’s) lawyer upon the * * * (plaintiff).”
GTE, 47 Ohio St.2d at 152, quoting Link v. Wabash R. R. Co. (1962), 370 U.S. 626, 633-34, 82
S.Ct. 1386, 8 L.Ed.2d 734 and fn.10 (citations omitted).
{¶ 20} In the case sub judice, we do not believe that the trial court abused its discretion by PICKAWAY, 11CA6 8
determining that appellant failed to establish entitlement to relief under Civ.R. 60(B)(1). The
facts and circumstances present in this case do not demonstrate excusable neglect or inadvertence.
Instead, appellant’s attorney’s failure to respond to appellee’s summary judgment, which is
imputed to appellant, demonstrates mere neglect. The trial court afforded appellant ample time to
respond to appellee’s summary judgment motion. After the court vacated its initial order, nearly
four months elapsed before the court entered another summary judgment. During that time, the
record contains no evidence that appellant made any filings or responded to appellee’s summary
judgment motion. Approximately five months elapsed before the court issued an amended final
judgment entry. Again, during that time, appellant submitted no filings. Another three months
elapsed before appellee filed a notice of sheriff’s sale. Only at that point did appellant submit a
filing–his Civ.R. 60(B) motion, which he did not file until the day before the sale. In view of the
amount of time that elapsed between the court’s summary judgment rulings and the timing of
appellant’s Civ.R. 60(B) motion, the court was well within its discretion to determine that the
purpose of appellant’s Civ.R. 60(B) motion was for delay. Moreover, allowing appellant to
escape the final judgment due to the alleged neglect of his attorney would be visiting the sins of
appellant’s attorney upon the appellee.
{¶ 21} Additionally, we find the following statement relevant to the situation in the case at
bar:
“If we were to hold that a party who neglects to respond to a motion for summary judgment is entitled to relief when he files a Civ.R. 60(B) motion, supported by affidavits which should have been filed in opposition to the motion for summary judgment, we would be disemboweling the whole summary judgment procedure. No party would be required to file counter-affidavits under Civ.R. 56 if he could later obtain relief under Civ.R. 60(B) from his omission. Indeed, were a party interested in delaying the final outcome of a case, he would invariably resort PICKAWAY, 11CA6 9
to such a tactic.”
Pittsburgh Press Co. v. Cabinetpak Kitchens of Columbus, Inc. (1984), 16 Ohio App.3d 167, 168;
see, also, Sand v. Marbex, Inc. (Dec. 1, 1987), Scioto App. No. 1658. In the present case,
appellant states that he has defenses to present in opposition to appellee’s summary judgment
motion. He, however, should have raised those defenses in a timely response to appellee’s
summary judgment motion–not in a Civ.R. 60(B) motion brought approximately eight months after
the court first entered summary judgment and on the day before the schedule sheriff’s sale. The
totality of appellant’s conduct demonstrates a tactic to delay the final outcome of the case, i.e., the
sheriff’s sale.
{¶ 22} Appellant nonetheless argues that he was unaware of the status of the case and of
his counsel’s failure to respond to appellee’s summary judgment motion. A party involved in
litigation cannot simply sit back and claim ignorance of the proceedings. Instead, a party to an
action must keep himself informed of the status of the case. See State Farm Mut. Auto. Ins. Co. v.
Peller (1989), 63 Ohio App.3d 357, 361, 578 N.E.2d 874 (stating that a party to an action has the
duty to stay apprised of the progress of the case); Metcalf v. Ohio State Univ. Hosp. (1981), 2 Ohio
App.3d 166, 441 N.E.2d 299; see, also, Whitman v. Whitman, Hancock App. No. 5-05-36,
2007-Ohio-4231, ¶24 (stating that “[t]he parties to an action have a duty to remain informed about
the progress of their case”); In re Adoption of J.H., Lorain App. No. 06CA008902,
2006-Ohio-5957, ¶8 (noting that it is “well established that the parties to the case have a duty to
keep apprised of the progress of the case on the docket”); MBA Realty v. Little G, Inc. (1996), 116
Ohio App.3d 334, 338, 688 N.E.2d 39 (stating that the parties to an action bear the burden of
following the progress of their case); P. Maynard v. C. Maynard (Feb. 11, 1982), Cuyahoga App. PICKAWAY, 11CA6 10
No. 43642, (stating that appellant “was duty bound to keep abreast of the docket entries”). Thus,
although appellant claims that he was unaware of the status of his case or of his attorney’s failure
to respond to appellee’s summary judgment motion, he also had a duty to keep himself informed of
the status of the case. His ignorance of the status of the case does not demonstrate excusable
neglect.
{¶ 23} Finally, we recognize that “courts should strive to decide cases upon their merits
rather than upon procedural grounds.” Newman v. Farmacy Natural & Specialty Foods, 168 Ohio
App.3d 630, 2006-Ohio-4633, 861 N.E.2d 559, ¶22. This “principle[, however,] must be
balanced against the competing principle that litigation must be brought to an end.” Id., citing
Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 21, 520 N.E.2d 564. In the case sub
judice, the interest in finality is most manifest. Appellant had more than ample time to argue the
merits of the case. Appellee obtained a final judgment and sought to execute that judgment
through the sheriff’s sale. Only when faced with the reality of the sheriff’s sale did appellant take
action. Appellant, however, had prior opportunities to challenge the judgment. Having failed to
do so, he cannot now avail himself of the relief that Civ.R. 60(B) provides.
{¶ 24} Appellant further argues that Civ.R. 60(B)(5) entitles him to relief from the court’s
summary judgment. Civ.R. 60(B)(5) reflects “the inherent power of a court to relieve a person
from the unjust operation of a judgment.” State ex rel. Gyurcsik v. Angelotta (1977), 50 Ohio
St.2d 345, 346, 364 N.E.2d 284. “The grounds for invoking Civ.R. 60(B)(5) should be
substantial.” Caruso–Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 448 N.E.2d 1365, paragraph
two of the syllabus.
{¶ 25} In the case at bar, the trial court did not abuse its discretion by determining that PICKAWAY, 11CA6 11
appellant was not entitled to relief under Civ.R. 60(B)(5). The operation of the judgment would
not be unjust to appellant. To the contrary, undoing the operation of the judgment would be unjust
to appellee. There is nothing inherently unjust about the trial court’s judgment. The court
afforded appellant ample procedural protections. Appellant’s failure to take advantage of those
protections does not render the court’s judgment unjust.
{¶ 26} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s first
assignment of error.
II
{¶ 27} In his second assignment of error, appellant contends that the trial court abused its
discretion by failing to hold a hearing regarding his Civ.R. 60(B) motion.
{¶ 28} A party who files a Civ.R. 60(B) motion for relief from judgment is not
automatically entitled to a hearing on the motion. Instead, the movant bears the burden to
demonstrate that he or she is entitled to a hearing on the motion. To warrant a hearing on a Civ.R.
60(B) motion, the movant must allege operative facts that would warrant relief under Civ.R. 60(B).
Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 19, 665 N.E.2d 1102. Although a movant
is not required to submit evidentiary material in support of the motion, a movant must do more
than make bare allegations of entitlement to relief. French v. Taylor (Jan. 2, 2002), Lawrence
App. No. 01 CA15; see, also, Your Financial Community of Ohio, Inc. v. Emerick (1997), 123
Ohio App.3d 601, 607, 704 N.E.2d 1265. In the case at bar, as we discussed under appellant’s
first assignment of error, appellant failed to allege operative facts that would entitle him to relief
under Civ.R. 60(B). Consequently, the trial court was not required to hold a hearing.
{¶ 29} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s PICKAWAY, 11CA6 12
second assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Pickaway County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
Kline, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY: Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.