Tax Ease Ohio, L.L.C. v. Jones ( 2017 )

[Cite as Tax Ease Ohio, L.L.C. v. Jones, 2017-Ohio-9053.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
TAX EASE OHIO, LLC :
:
Plaintiff-Appellee : Appellate Case No. 27687
:
v. : Trial Court Case No. 2017-CV-2543
:
ETI JONES, et al. : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 15th day of December, 2017.
...........
DANIEL A. FRIEDLANDER, Atty. Reg. No. 0011909, 323 West Lakeside Avenue, Suite
200, Cleveland, Ohio 44113
Attorney for Plaintiff-Appellee
ETI JONES, 5090 Altrim Road, Dayton, Ohio 45417
Defendant-Appellant-Pro Se
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TUCKER, J.
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{¶ 1} Defendant-appellant Eti Jones appeals, pro se, from a judgment of the
Montgomery County Court of Common Pleas granting default judgment on the complaint
in foreclosure filed by plaintiff-appellee Tax Ease, L.L.C. (“Tax Ease”). Because we
conclude that the trial court did not abuse its discretion in granting the default judgment,
we affirm.
I. Procedural History
{¶ 2} On May 30, 2017, Tax Ease filed a complaint in foreclosure against Jones in
relation to her real property located at 5090 Altrim Road in Dayton. In the complaint, Tax
Ease alleged that it was the purchaser and current holder of tax certificates, by which it
had acquired the first lien, previously held by Montgomery County, for the amount of
delinquent taxes, assessments, interest, and penalties charged against the property.
Among other relief, Tax Ease asked for a determination of the amounts due on the
certificates plus interest, an order of sale directing the sheriff to conduct a sale of the
property with certain conditions, and an order directing that proceeds from the sale be
applied to satisfy the amounts owed to it. Service was perfected on Jones on June 3,
2017. Jones did not file an answer, and on July 21, 2017, Tax Ease filed a motion
seeking default judgment. The trial court entered default judgment and issued a Decree
in Foreclosure. Jones appeals.
II. Analysis
{¶ 3} We begin by noting that Jones’s appellate brief fails to conform to App.R.
-3-
16(A)(3) which requires that an appellate brief contain a “statement of the assignments
of error presented for review, with reference to the place in the record where each error
is reflected.” A review of her appellate brief demonstrates that Jones fails to raise any
objections or concerns regarding the validity of the default judgment. Rather, she states
that she believes the real estate taxes assessed upon the subject property were too high.
She further contends that she contacted Tax Ease to inform them that she planned to
make payments once she received a “small settlement coming in due to an automobile
accident.” She attached a copy of what appears to be text messages between her and
her personal injury attorney regarding the settlement. Finally, she claims that she
received the settlement monies the same day that default judgment was entered.
{¶ 4} Civ.R. 55(A) provides that “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend as provided by these
rules, the party entitled to a judgment by default shall apply in writing or orally to the court
therefor; * * * If the party against whom judgment by default is sought has appeared in
the action, he shall be served with written notice of the application for judgment at least
seven days prior to the hearing on such application.” A trial court's grant or denial of a
motion for default judgment will not be reversed absent an abuse of discretion. Equable
Ascent Fin., L.L.C. v. Christian, 196 Ohio App. 3d 34, 2011–Ohio–3791, 962 N.E.2d 322,
¶ 6 (10th Dist.). “ ‘Abuse of discretion’ has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is to be
expected that most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary. A decision is
unreasonable if there is no sound reasoning process that would support that decision. It
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is not enough that the reviewing court, were it deciding the issue de novo, would not have
found that reasoning process to be persuasive, perhaps in view of countervailing
reasoning processes that would support a contrary result.” AAAA Enterprises, Inc. v.
River Place Community Redevelopment, 50 Ohio St. 3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 5} In Ohio, “[l]itigants who choose to proceed pro se are presumed to know the
law and correct procedure, and are held to the same standards as other litigants.”
Yocum v. Means, 2d Dist. Darke No. 1576, 2002–Ohio–3803, ¶ 20. In this case, Jones
failed to answer the complaint, to otherwise defend, or to make any type of appearance
before the trial court. And on appeal, she fails to set forth any argument relevant to the
entry of the default judgment. Furthermore, “[a]n appellate court is limited to reviewing
the record, and will disregard alleged facts that are not of record in the trial court.”
(Citations omitted.) Chase Manhattan Mtg. Corp. v. Locker, 2d Dist. Montgomery No.
19904, 2003–Ohio–6665, ¶ 10. Thus, we cannot consider her arguments regarding the
tax assessment on her property or her conversations with Tax Ease as neither of these
issues are set forth in the record before us.
{¶ 6} We do note that Civ.R. 55(B) states that “if a judgment by default has been
entered, the court may set it aside in accordance with Rule 60(B).” “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., 47 Ohio St. 2d 146, 351 N.E.2d
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113 (1976), paragraph two of the syllabus. A year has not yet elapsed from the time that
the default judgment was entered against Jones. Therefore, if she believes that grounds
exist for setting aside the default judgment, she may file a motion with the trial court,
setting forth reasons why the default judgment should be set aside. We express no
opinion on the merits of such a motion.
{¶ 7} We conclude that, on this record, the trial court did not abuse its discretion in
granting the motion for default judgment. Accordingly, the judgment of the trial court is
affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
Daniel Friedlander
Eti Jones
Michele Phipps
Hon. Erik Blaine