[Cite as Mason v. Mason,

.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

WILLIAM G. MASON, EXECUTOR FOR JUDGES: THE ESTATE OF ZONA E. MASON Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Plaintiff-Appellee Hon. Patricia A. Delaney, J.

-vs-

WILLIAM G. MASON, ET AL. Case No. 10-CA-18

Defendants-Appellees

-vs-

NATIONAL CITY BANK, NKA PNC NUNC PRO TUNC O P I N I O N BANK, N.A. TYPOGRAPHICAL ERROR ON COVER PAGE Defendant-Appellant

CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas, Probate Divison, Case No. 092840

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 19, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT JOHNSTON DANIELLE CULLEN 144 East Main Street 323 West Lakeside Avenue, Suite 200 Lancaster, OH 43130 Cleveland, OH 44113 Perry County, Case No. 10-CA-18 2

Delaney, J.

{¶1} Defendant-Appellant, National City Bank, nka PNC Bank, N.A. appeals

the September 17, 2010 judgment entry of the Perry County Court of Common Pleas,

Probate Division, in this action for the sale of real estate.

STATEMENT OF THE FACTS AND CASE

{¶2} On July 9, 2009, Plaintiff-Appellee, William G. Mason, as Executor for the

Estate of Zona E. Mason filed a Complaint for Sale of Real Estate with the Perry County

Court of Common Pleas, Probate Division. Appellee moved to sell the decedent’s real

estate to pay the estate’s debts.

{¶3} Appellee named William G. Mason, Carol Fife, Capital Financial Services,

Inc., National City Bank (nka PNC Bank), and the Perry County Treasurer as

Defendants. Capital Financial Services, Inc. and Appellant held mortgages on the

property to be sold by Appellee. The complaint stated:

{¶4} “Wherefore, plaintiff prays that said real estate be sold in its entirety; that

all parties claiming an interest in said real estate be required to set forth their claims or

be forever barred; that the rights, interests and liens of all parties may be fully

determined, adjusted and protected; and that your Complainant be authorized and

ordered to sell said real estate according to the statutes in such case made and

provided; that the complainant [sic] be authorized to retain the services of a real estate

auctioneer to conduct said sale and for such other and further relief as he may be

entitled.” Perry County, Case No. 10-CA-18 3

{¶5} Appellant was served on July 17, 2009. Capital Financial Services, Inc.

was served on July 16, 2009. The Perry County Treasurer filed an Answer on July 31,

2009.

{¶6} Counsel for the Estate and Appellant engaged in a telephone conference

and corresponded through mail during the answer period.

{¶7} On August 19, 2009, a judgment entry “Dispensing with a New

Appraisement and Bond and Ordering Sale” was issued by the trial court. The

judgment entry stated that Capital Financial Services, Inc. and Appellant were in default

of answer. The entry stated, “defendants * * * have failed to answer and/or

counterclaim herein, and otherwise have failed to present any claim, right, title or

interest in and to the real estate herein, said defendants are held in default and their

claims are forever barred.” The record reflects that Appellee did not file a motion to

initiate the August 19, 2009 judgment entry.

{¶8} The property then went to public sale. On August 31, 2009, Appellant

filed an Answer and Consent to Plaintiff’s Complaint to Sell Real Estate.

{¶9} The trial court filed a judgment entry on October 20, 2009, confirming the

sale of the property. The trial court further stated in the judgment entry,

{¶10} “And, the Court having found that the claims of the Defendants, National

City Bank and Capital Finance Services, Inc., dba Beneficial Mortgages of Ohio, Inc. are

denied by reason of said Defendants’ failure to answer or otherwise plead in these

proceedings, the Clerk is hereby ordered to record a copy of the Judgment Entry in the

Recorder’s Office of Perry County, Ohio; and the said Recorder shall note a release of

said mortgages in the margin of said mortgages * * *.” Perry County, Case No. 10-CA-18 4

{¶11} Appellant filed a Motion for Relief from Judgment on November 5, 2009.

Appellant alleged it failed to file an answer to Appellee’s complaint for sale of the real

estate due to excusable neglect. Appellant stated that the answer was not timely filed

due to an administrative error. Appellant further alleged that it had a meritorious

defense to Appellee’s complaint for sale in that it had a first and best mortgage lien

interest on the property in question. However, Appellant did not object to the sale of the

property.

{¶12} The parties filed multiple briefs on the issues and the trial court held a

hearing on the matter on February 1, 2010 and June 14, 2010.

{¶13} The trial court issued its judgment on September 17, 2010, denying

Appellant’s Motion for Relief from Judgment. The trial court found that Appellant failed

to demonstrate excusable neglect in its failure to answer the complaint.

{¶14} It is from this decision Appellant now appeals.

ASSIGNMENTS OF ERROR

{¶15} Appellant raises three Assignments of Error:

{¶16} “I. THE PROBATE COURT ABUSED ITS DISCRETION BECAUSE

DEFENDANT-APPELLANT PNC IS ENTITLED TO RECEIVE ITS SHARE OF THE

PROCEEDS PURSUANT TO OHIO REVISED CODE §2127.38 AND OHIO REVISED

CODE §2127.19 DOES NOT AUTHORIZE LIEN EXTINGUISHMENTS PRIOR TO

SALE. (SEE, SUPPLEMENTAL BRIEF PGS. 4-6 DOCKETED JULY 14, 2010 AND

JUDGMENT ENTRY DATED JULY 17, 2010.)

{¶17} “II. THE PROBATE COURT ABUSED ITS DISCRETION IN

EXTINGUISHING DEFENDANT-APPELLANT PNC'S LIEN, PRIOR TO SALE, Perry County, Case No. 10-CA-18 5

BECAUSE PLAINTIFF-APPELLEE THE ESTATE OF ZONA MASON DID NOT

COMPLY WITH OHIO CIVIL RULE 55. (SEE, SUPPLEMENTAL BRIEF PGS. 7-8

DOCKETED JULY 14, 2010 AND JUDGMENT ENTRY DATED JULY 17, 2010.)

{¶18} “III. THE PROBATE COURT ABUSED ITS DISCRETION BECAUSE

DEFENDANT-APPELLANT PNC ESTABLISHED INADVERTENCE OR EXCUSABLE

NEGLECT AND MET ALL THREE REQUIRED PRONGS OF RELIEF. (SEE,

SUPPLEMENTAL BRIEF AFFIDAVIT ATTACHED AS EXHIBIT "A" DOCKETED JULY

14, 2010 AND JUDGMENT ENTRY DATED JULY 17, 2010.)

III.

{¶19} We will begin by addressing Appellant’s third Assignment of Error.

Appellant argues the trial court abused its discretion when it denied Appellant’s motion

for relief from judgment.

{¶20} The decision whether to grant a motion for relief from judgment under

Civ.R. 60(B) lies within the trial court's sound discretion. Griffey v. Rajan (1987),

,

. In order to find abuse of discretion, we must

determine the trial court's decision was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore (1983),

,

.

{¶21} A party seeking relief from judgment pursuant to Civ.R. 60(B) must show:

“(1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief

under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must be

timely filed.” GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976),

,

, paragraph two of the syllabus. A failure to establish any one of

these three requirements will cause the motion to be overruled. Rose Chevrolet, Inc. v. Perry County, Case No. 10-CA-18 6

Adams (1988),

,

; Argo Plastic Prod. Co. v.

Cleveland (1984),

,

.

{¶22} Appellant brought its Motion for Relief from Judgment pursuant to Civ.R.

60(B)(1). Civ.R. 60(B) states in pertinent part,

{¶23} “On motion and upon such terms as are just, the court may relieve a party

* * * from a final judgment, order or proceedings for the following reasons: (1) mistake,

inadvertence, surprise or excusable neglect; * * * 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 to taken.”

{¶24} There is no dispute that Appellant’s motion for relief from judgment was

brought within a reasonable time. We next examine the trial court’s decision to find that

Appellant failed to demonstrate excusable neglect.

{¶25} Appellant states the delay in answering Appellee’s complaint was due to

administrative error within its counsel’s office. Appellant was served with the complaint

on July 17, 2009. Appellant submitted the complaint to its outside counsel shortly

before the answer period was due to expire. Counsel prepared the answer to

Appellee’s complaint, but Appellant alleges a secretary in its counsel’s office did not

properly process the answer so that it would be timely filed. Appellant’s answer was

filed on August 31, 2009. Appellant’s answer was due on August 15, 2009.

{¶26} During the answer period, Appellant and Appellee participated in a

telephone conference and exchanged correspondence regarding Appellee’s complaint.

{¶27} Civ.R. 60(B)(1) states that a party may be granted relief from judgment if

their trial counsel's actions represent “excusable neglect.” The Ohio Supreme Court Perry County, Case No. 10-CA-18 7

has defined “excusable neglect” in the negative by stating that, “* * * the inaction of a

defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for the

judicial system.’” Kay v. Marc Glassman, Inc. (1996),

,

, citing

,

.

{¶28} Although excusable neglect is an “elusive concept,” Kay v. Marc

Glassman, Inc., supra, “the failure to plead or respond after admittedly receiving a copy

of a complaint is generally not excusable neglect.” Dutton v. Potroos, 5th Dist. No.

2010CA00318,

citing LaSalle Nat. Bank v. Mesas, 9th Dist. No.

02CA008028, 2002–Ohio–6117, at ¶ 13. It has been held that “[o]nly where the failure

to respond is coupled with a complete lack of notice of the original motion may

excusable neglect lie.” Chuck Oeder Inc. v. Bower, 9th Dist. No. 23785, 2007–Ohio–

7032, at ¶ 8, quoting Zimmerman v. Rourke, 9th Dist. No. 04CA008472, 2004–Ohio–

6075, at ¶ 9. Excusable neglect has been further defined as some action “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.” Emery v. Smith, 5th Dist. Nos.2005CA00051, 2005CA00098, 2005-Ohio-

5526, ¶ 16 citing Vanest v. Pillsbury Co. (1997),

, 536 fn. 8,

.

{¶29} Based on the record before us and the case law regarding excusable

neglect, we find the trial court did not abuse its discretion in finding that Appellant failed

to demonstrate excusable neglect. Appellant was aware of Appellee’s complaint for the

sale of the property and Appellant discussed the case with Appellee, but due to its

inattention, Appellant failed to file a timely answer. Perry County, Case No. 10-CA-18 8

{¶30} Appellant has failed to establish one of the three required prongs under

the GTE test and therefore Appellant’s motion for relief from judgment must be

overruled. See Rose

Accordingly, it is unnecessary for this Court to

address Appellant’s argument that it also has a meritorious defense to Appellee’s

complaint.

{¶31} Appellant’s third Assignment of Error is overruled.

I., II.

{¶32} We address Appellant’s first and second Assignments of Error together.

{¶33} Appellant argues in its first Assignment of Error that the trial court abused

its discretion extinguishing Appellant’s lien on the property prior to the sale of the

property. Appellant’s second Assignment of Error states that Appellee did not properly

move for default judgment under Civ.R. 55.

{¶34} On August 19, 2009, the trial court issued a judgment entry ordering the

sale of the property at issue and extinguished the liens of Appellant and Capital

Financial Services for their failure to answer the complaint. On October 20, 2009, the

trial court issued a judgment entry confirming the sale and finding the claims of

Appellant and Capital Financial Services were denied because Appellant and Capital

Financial Services failed to timely answer or otherwise plead.

{¶35} Instead of filing an appeal of the August 19, 2009 or October 20, 2009

decisions, Appellant filed a motion for relief from judgment. Appellant then appealed the

trial court’s September 17, 2010 judgment entry denying Appellant’s motion for relief

from judgment. Therefore, the only issue before this Court is whether the trial court Perry County, Case No. 10-CA-18 9

abused its discretion in denying Appellant’s motion for relief from judgment under the

dictates of Civ.R. 60(B).

{¶36} In Appellant’s appeal, however, Appellant raises arguments in its first and

second Assignments of Error that go beyond a decision under Civ.R. 60(B).

Specifically, Appellant raises arguments concerning the trial court’s August 19, 2009

and October 20, 2009 judgment entries. It is well settled that Civ.R. 60(B) “is not

available as a substitute for a timely appeal * * * nor can the rule be used to circumvent

or extend the time requirements for an appeal.” Blasco v. Mislik (1982),

.

{¶37} For this reason, we overrule Appellant’s first and second Assignments of

Error.

{¶38} The judgment of the Perry County Court of Common Pleas, Probate

Division is affirmed.

By: Delaney, J.

Gwin, P.J. and

Wise, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. JOHN W. WISE Perry County, Case No. 10-CA-18 10

IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO

FIFTH APPELLATE DISTRICT

WILLIAM G. MASON, EXECUTOR FOR : THE ESTATE OF ZONA E. MASON : : Plaintiff-Appellee : : -vs- : : WILLIAM G. MASON, ET AL. : JUDGMENT ENTRY : Defendants-Appellees : Case No. 10-CA-18 -vs- : : NATIONAL CITY BANK, NKA PNC : BANK, N.A. : : Defendant-Appellant :

For the reasons stated in our accompanying Memorandum-Opinion, the decision

of the Perry County Court of Common Pleas, Probate Division, is affirmed.

Costs to Appellant National City Bank, NKA PNC Bank, N.A.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. JOHN W. WISE