[Cite as Glass v. Vinicky,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99953

MARIJANA GLASS, ET AL.

PLAINTIFFS-APPELLEES

vs.

JANICEMARIE K. VINICKY DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Civil Appeal from the Shaker Heights Municipal Court Case No. 12 CVG00869

BEFORE: E.A. Gallagher, J., S. Gallagher, P.J., and Stewart, J. RELEASED AND JOURNALIZED: February 27, 2014 ATTORNEY FOR APPELLANT

Rick Ferrara Rick L. Ferrara, Esq. 2077 East 4th Street Second Floor Cleveland, OH 44114

ATTORNEY FOR APPELLEES

Geoffrey C. Hanahan 8570 Mentor Avenue Mentor, OH 44060 EILEEN A. GALLAGHER, J.:

{¶1} Janicemarie Vinicky appeals the decision of the trial court denying her

motion for relief from judgment. Vinicky argues that she excusably neglected to

defend the case and, thus, the trial court abused its discretion when it denied her motion

for relief from judgment. Finding no merit to the instant appeal, we affirm the decision

of the trial court.

{¶2} Plaintiffs-appellees Marijana Glass and Nicole Basista, by and through her

legal guardian Marijana Glass, are the owners of real property located at 2531 Milton

Road in University Heights, Ohio. On July 20, 2010, plaintiffs-appellees entered into a

land contract and purchase agreement with Vinicky. The purchase agreement obligated

Vinicky to pay $170,000 for the property with $3,000 as earnest money to be paid

directly to the sellers. The installment land contract, which incorporated the terms of

the purchase agreement, obligated Vinicky to pay 360 equal payments of $797.28 to

plaintiffs-appellees.

{¶3} On July 10, 2012, plaintiffs-appellees filed a complaint in the Shaker

Heights Municipal Court. Plaintiffs-appellees asserted that Vinicky failed to make her

rental payments from August 1, 2010 to May 2, 2011, for a total loss of $12,027.20.

Plaintiffs-appellees also argued that Vinicky failed to pay the real estate taxes pursuant

to the land contract for an additional loss of $4,643.63. Plaintiffs-appellees sought total

damages of $15,000, cancellation of the land contract, restitution of the premises and forfeiture of Vinicky’s rights to the premises.

{¶4} On August 13, 2012, plaintiffs-appellees filed their first set of

interrogatories, request for admissions and request for production of documents.

Vinicky failed to respond and, on September 26, 2012, plaintiffs-appellees moved the

trial court to deem the admissions admitted. On October 5, 2012, plaintiffs-appellees

filed a motion for summary judgment, based in part on Vinicky’s failure to respond in

any meaningful way to the lawsuit. On December 19, 2012, the trial court granted

plaintiffs-appellees’ motion, finding as follows:

In this case the defendant has not supplied affidavits or other material specified in Civ.R. 56(C) which suggests that a question of material fact exists. Defendant has also not responded to plaintiffs’ requests for admissions. Therefore the facts therein are deemed admitted. Furthermore defendant has not presented any opposition whatsoever to the motion. Consequently, the court finds that there exists no genuine issue of material fact and that plaintiffs are entitled to judgment as a matter of law.

{¶5} On March 28, 2013, Vinicky filed a motion for relief from judgment. In

her motion, Vinicky argued that she excusably neglected to respond to the lawsuit and

that the contract upon which the lawsuit was based was void because Marijana Glass had

no authority to sign or enforce the installment land contract on behalf of Nicole Basista.

In particular, Vinicky states that the sudden and violent death of her father during the

same year the instant lawsuit was filed constitutes excusable neglect. Further, Vinicky

argues that the land contract is unenforceable because Marijana Glass, who signed the land contract, was not a guardian of Basista until after the parties signed the land

contract. Thus, Vinicky claims, the agreement was void and she is entitled to relief

from judgment.

{¶6} Plaintiffs-appellees responded and the trial court denied Vinicky’s motion.

Vinicky appeals, raising the following assigned error:

The trial court abused its discretion in denying Appellant’s motion for relief from judgment.

{¶7} In GTE Automatic Elec. Inc., v. ARC Industries, Inc.,

,

(1976), paragraph two of the syllabus, the Ohio Supreme Court stated the

following:

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.

{¶8} The trial court’s ruling on a motion for relief from judgment will be reversed

only for an abuse of discretion. Griffey v. Rajan,

,

(1987). An “abuse of discretion means more than an error of law or judgment; it

implies that the trial court’s decision was unreasonable, arbitrary, or unconscionable.”

Blakemore v. Blakemore,

,

(1983).

{¶9} Vinicky argues that she is entitled to relief under Civ.R. 60(B)(1), excusable neglect, because of “the sudden and violent death of her father in the same year it was

filed, and subsequent, personal medical issues that occurred as a consequence.” We

disagree. Although “severe depression and emotional strain may support a ground for

relief under Civ.R. 60(B)(1) excusable neglect,” the cases in which such relief has been

granted have involved debilitating emotional or psychological illness such that the

person seeking relief alleged an utter incapacity to act with respect to the litigation. See

In re Wood, 10th Dist. Franklin No. 97APE01-77,

(Aug.

12, 1997).

{¶10} In the present case, we find no abuse of discretion in the trial court’s denial

of Vinicky’s Civ.R. 60(B) motion. Although the materials submitted to the trial court

indicate that she was certainly suffering after the sudden death of her father, they failed

to establish that Vinicky’s condition was so debilitating that she could not attend, in any

manner, to the litigation at issue. In fact, one month after her father’s passing, Vinicky

did participate in the litigation by filing an answer to the instant complaint. Vinicky

failed to respond to any discovery or dispositive motion served upon her after that time.

However, Vinicky demonstrated an awareness of the complaint and an ability to partake

in the litigation through the filing of her answer.

{¶11} We find no merit to Vinicky’s argument that she excusably neglected to

participate in the litigation.

{¶12} Further, Vinicky failed to present evidence of a meritorious defense or claim should relief be granted. In her motion, Vinicky argues plaintiff Marijana Glass

had no authority to sign or act on Nicole Basista’s behalf at the time the land contract

was signed and, therefore, the land contract was void. However, at all times during the

negotiation for the sale of the property, Marijana Glass was acting on behalf of Nicole

Basista and even became her court-appointed guardian with legal authority to act on her

behalf. Vinicky’s attached exhibit validated this authority in that the Geauga County

Probate Court found Marijana Glass authorized to sell the real estate. The effort to sell

the property was eventually terminated and the parties subsequently petitioned the

Shaker Heights Municipal Court for relief pursuant to the land-contract agreement. The

record is clear that Nicole Basista had been deemed incompetent (due to her minority),

that her mother Marijana Glass was her appointed guardian, and that the land contract

was signed by Vinicky and Marijana Glass as both an owner of the property, as well as in

the capacity of the mother and guardian of Basista, a minor.

{¶13} We cannot say that the trial court’s denial of the Civ.R. 60(B) motion was

unreasonable, arbitrary or unconscionable and we overrule Vinicky’s assigned error.

{¶14} The judgment of the trial court is affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and MELODY J. STEWART, J., CONCUR

KEYWORDS: #99953 - Marijana Glass, Et al. v. Janicemarie K. Vinicky

Judgment affirmed; excusable neglect; motion for summary judgment; admissions; motion for relief from judgment. The judgment of the trial court is affirmed. Vinicky failed to establish that she was entitled to relief from judgment pursuant to excusable neglect. Vinicky failed to establish a meritorious defense had relief been afforded.