McClain v. Alexander , 2023 Ohio 2007 ( 2023 )

[Cite as McClain v. Alexander, 2023-Ohio-2007.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Diana McClain Court of Appeals No. L-22-1268
Appellant Trial Court No. CVG-21-15879
v.
Cheryl R. Alexander DECISION AND JUDGMENT
Appellee Decided: June 16, 2023
*****
Brian J. Ballenger, for appellant.
C. Paul Okafor, for appellee.
*****
MAYLE, J.
{¶ 1} In this landlord-tenant dispute, the plaintiff-appellant, Diana McClain,
appeals a decision by the Toledo Municipal Court, Housing Division that denied her
motion for relief from judgment pursuant to Civ.R. 60(B). The judgment dismissed her
claim for unpaid rent and found her liable as to counterclaims, brought by the defendant-
appellee, Cheryl Alexander. Finding no error, we affirm.
I. Background
{¶ 2} McClain (“landlord”) filed suit on December 13, 2021 seeking restitution of
property located at 3734 Douglas Road in Toledo. Landlord also asserted a claim for
back rent, at a rental rate of $700 per month. Soon after filing suit, Alexander (“tenant”)
vacated the property, leaving only the back rent claim to be tried.
{¶ 3} Tenant counterclaimed. She alleged that the property had been without heat,
hot water and electricity for seven months. Tenant complained of other “substandard
conditions,” including a rodent infestation, broken windows, and “unsafe and unsecured
windows and doors.” Tenant sought compensatory damages under Chapter 5321 of the
Ohio Revised Code (“The Ohio Landlords and Tenants Act”) and other common law
claims. Landlord filed an answer, denying any liability.
{¶ 4} The original trial date was set for June 23, 2022, but was rescheduled for
July 28, 2022, and then again for August 25, 2022 at 9:00 a.m.
{¶ 5} When the case was called for trial, at 10:15 a.m. on August 25, 2022, neither
landlord nor her counsel was present. Under questioning by the court, tenant’s counsel
said that he had a conversation with “somebody” regarding “the whereabouts of
[landlord’s counsel].” Tenant’s counsel was told that landlord’s counsel “never got the
notice [of the trial date]” and had been in the courtroom earlier that morning, around 9
2.
a.m., on another matter. The trial court indicated that it would “note [landlord] * * *
failed to appear” and granted judgment in favor of tenant, as to both landlord’s claim for
back rent and tenant’s counterclaims. The court then heard testimony and received
evidence regarding tenant’s claim for damages. At the conclusion of the hearing, the trial
court awarded tenant $15,000 in damages, plus attorney’s fees.
{¶ 6} Landlord filed a motion to be relieved from judgment pursuant to Civ.R.
60(B). Landlord claimed that the notice of trial “was never received by [her] Counsel,”
despite the fact “that the docket shows that the [notice] was mailed by the Assignment
Commissioner.” The motion also asserts that landlord’s counsel called landlord “late” in
the morning on the day of trial but was unable to reach her. Finally, the motion indicates
that landlord’s counsel is the prosecutor in a neighboring municipal jurisdiction and “has
a docket on Thursdays,” which prevented him from being able to try the case on the day
it was called. Landlord reminded the court that her counsel was “at every [other] court
date scheduled in this matter.” For those reasons, landlord prayed that the motion be
granted and a new trial scheduled. Tenant opposed the motion.
{¶ 7} By judgment dated October 5, 2022, the trial court denied landlord’s motion
for relief. On October 12, 2022, the trial court awarded tenant $4,658.80 in attorney fees,
following submission of affidavits by tenant, for a total judgment of $19,658.80.
{¶ 8} Landlord appealed the October 12, 2022 judgment and asserts two
assignments of error for our review.
3.
ASSIGNMENT OF ERROR NO. 1: The Court erred and abused
its discretion in denying Plaintiff-Appellant’s Motion to vacate its Entry
under Civ.R. 60(B).
ASSIGNMENT OF ERROR NO. 2: The Court committed
reversible error by granting judgment in favor of Defendant/Appellee
without requiring any evidence to be submitted prior to granting judgment.
II. The trial court did not abuse its discretion when it denied landlord’s
Civ.R. 60(B) motion.
{¶ 9} Civ.R. 60 (“Relief from judgment or order”) provides, in relevant part,
(B) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud; Etc. 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
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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.
{¶ 10} To prevail on a Civ.R. 60(B) motion, 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 * * *. GTE Automatic Elec., Inc. v. ARC
Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. If
any one of the three GTE requirements is not met, the motion should be overruled. Rose
Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).
{¶ 11} The decision to grant or deny a motion for relief from judgment pursuant to
Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed absent
an abuse of the discretion. Strack v. Pelton, 70 Ohio St.3d 172, 637 N.E.2d 914 (1994).
An abuse of discretion is more than an error of judgment; it means that the trial court was
unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 12} In its decision, the trial court found,
Because [landlord] does not cite a specific subsection of Rule 60(B),
the court construes the motion under Rule 60(B)(5), given that Plaintiff’s
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cause for relief lies under the allegation that the physical notification of the
trial date was not received by [landlord’s] counsel.
Ohio courts have consistently recognized that the failure of an
attorney to appeal and represent their client does not constitute grounds for
relief under Rule 60(B)(1). CB Group, Inc., v. Hosp., L.L.C., 8th Dist.
Cuyahoga No. 93387, 2009-Ohio-6652. It is also well established that Rule
60(B)(5) does not protect a party “who ignores its duty to protect its
interest.” Lebanon Auto Parts v. Dracakis, 12th Dist. Warren No. CA99-
09-110, 2000 WL 433240 (Apr. 17, 2000), quoting Mount Olive Baptist
Church v. Papkins Paints, 64 Ohio App.2d 285, 414 N.E. 850 (8th
Dist.1979). This, compounded with the fact that both [landlord] themselves
[sic] along with [landlord’s] counsel failed to appear for the third trial date
of the matter, the fact that the court’s certified journal entry indicates that
notice was sent to both parties successfully, and the fact that [landlord] was
unreachable by their [sic] own counsel, all culminate in the failure of
[landlord] to demonstrate entitlement to relief under one of the grounds
stated in Rule 60(B). As failure of a single prong of the GTE test is fatal to
relief, the court will not examine any of the other prongs.
6.
{¶ 13} On appeal, landlord challenges the trial court’s decision to analyze her
motion under Civ.R. 60(B)(5). She claims, “[c]learly, lack of notice of the trial date * * *
should be considered * * * excusable neglect” under Civ.R. 60(B)(1). We disagree.
{¶ 14} As the trial court noted, “[a]n attorney’s failure to appear and represent his
client is not an ‘excusable neglect’ ground under Civ.R. 60(B)(1).” CB Grp., Inc. v.
Starboard Hosp., L.L.C., 8th Dist. Cuyahoga No. 93387, 2009-Ohio-6652, ¶ 21 citing
Whitt v. Bennett, 82 Ohio App.3d 792, 798, 613 N.E.2d 667 (8th Dist.1992) (Noting that
Civ.R. 60(B)(1) is reserved for “matters that concern simple lapses and technical
failures.”). However, an attorney’s failure to represent his client may constitute
“inexcusable neglect,” thereby entitling a party to relief under Civ.R. 60(B)(5). CB Grp.
at ¶ 21 (“Matters of the extraordinary nature are more accurately under the purview of
Civ.R. 60(B)(5).”). In GB Grp., the court found that a party was entitled to relief where
he “demonstrated through his affidavit, which was attached to his motion to vacate
judgment, that his attorney[s] * * * abandoned their representation of him.” Id. at ¶ 22.
{¶ 15} In this case, landlord does not account for the alleged “lack of notice.”
That is, she makes no attempt to explain—through sworn testimony or otherwise—why
the docket indicates that notice was sent if notice was not received, nor does she indicate
what efforts, if any, were taken to track the source of the error. We also take particular
note of landlord’s assertion that, after counsel learned at 10:15 a.m. that trial was set for
that day, August 25, 2022, “the next information [counsel] received was the Notice of the
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Judgment against [landlord] 12 days later.” (Appellant’s brief at 1; emphasis added.)
We conclude from this assertion that—in those 12 days—neither landlord nor counsel
attempted to confirm whether the trial had gone forward or the results. In sum, we see no
evidence that the trial court abused its discretion in finding that landlord was not entitled
to relief under Civ.R. 60(B)(5). Accord Jo–Rene Corp. v. Jastrzebski, 8th Dist.
Cuyahoga Nos. 79933, 80310, 2002-Ohio-1550 (Although defense counsel’s
representation may have been deficient, relief from judgment was not warranted pursuant
to Civ.R. 60(B)(5), because the defendant had constructive notice of the hearing through
the trial court’s docket).
{¶ 16} Although this alone is reason to affirm the trial court’s judgment, we will
also address landlord’s claim on appeal that she “would have provided a meritorious
defense” if relief had been granted.
{¶ 17} “To show the existence of a meritorious defense under Civ.R. 60(B), the
movant need not establish ultimate success on the merits.” K. Ronald Bailey & Assoc.,
L.P.A. v. Martin, 6th Dist. Erie No. E-08-057, 2009-Ohio-2932, ¶ 15, citing Natl. City
Bank v. Mulinex, 6th Dist. Lucas No. L-05-1066, 2005-Ohio-5460, ¶ 13. However, “‘the
movant must provide the trial court with operative facts that would constitute a
meritorious defense if found to be true.’” Id., quoting Natl. City Bank. And, the
operative facts must be alleged “with enough specificity to allow the trial court to decide
whether the movant has met that test.” Id., quoting Syphard v. Vrable, 141 Ohio App.3d
8.
460, 463, 751 N.E.2d 564 (6th Dist.2001). In K. Ronald Bailey, we found that the trial
court abused its discretion in granting relief under Civ.R. 60(B) where the movant “failed
to assert a meritorious defense or claim of any kind.” Id. at ¶ 15.
{¶ 18} Here, although landlord now argues that she would have provided a
meritorious claim or defense, her motion before the trial court failed to make any such
assertion. Likewise, landlord failed to present any evidentiary material in support of the
motion from which the requisite operative facts supporting relief from judgment could
have been ascertained. Because landlord did not meet her burden to allege the existence
of a meritorious claim or defense, or any operative facts in support thereof, we find that
the trial court did not abuse its discretion in denying her motion for relief from judgment.
{¶ 19} If any one of the three GTE requirements is not met, the motion should be
overruled. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).
Here, landlord failed to show that she was entitled to relief under the first and second
prongs of the GTE test. We therefore find that the trial court did not abuse its discretion
in denying landlord’s motion. Landlord’s first assignment of error is found not well-
taken.
III. The trial court did not err in granting tenant judgment as to her
counterclaims.
{¶ 20} In her second assignment of error, landlord claims that “the Court granted
judgment for [tenant] without taking any evidence.” Specifically, landlord claims that no
evidence was presented regarding “the owner of the real property, whether [a] rental
9.
agreement existed, and * * * fault.” Landlord also complains that the court granted
judgment in tenant’s favor despite the absence of any motion for judgment on the
pleadings. She argues that it was error to enter judgment against her under these
circumstances. Again, we disagree.
{¶ 21} “After the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings.” Civ.R. 12(C). “A
determination of a motion for judgment on the pleadings is limited to the allegations in
the pleadings and any documents attached and incorporated thereto.” (Citations omitted.)
M. C. v. Choudhry, 9th Dist. Summit Nos. 29859, 29866, 2022-Ohio-915, ¶ 29.
{¶ 22} In her complaint, it was landlord who alleged that she “is the Owner/Agent
of the premises located at 3734 Douglas Rd., Toledo 43613, Lucas County, Ohio.” In
support, she attached to the complaint a document indicating that the property was
transferred to landlord on November 4, 2020. Landlord also alleged that tenant was “in
default of * * * her lease or rental agreement [due to] Non Payment.”
{¶ 23} Likewise, in tenant’s answer and counterclaim, she alleged that landlord
violated R.C. 5321.04 for “failing to maintain the rental unit in a safe and habitable
condition, despite [tenant’s] repeated requests that they [sic] do so. Specifically,
[landlord] failed to remedy the rodent infestation, the broken windows, the unsecured
door to the roof, the furnace, the hot water tank, the broken backyard staircase, and the
cracked front screen door.” Upon review, we find that the allegations set forth in the
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pleadings, taken as true, establish ownership of the property, the existence of a rental
agreement, and landlord’s liability.
{¶ 24} We further note that, after granting judgment in favor of tenant, the trial
court heard testimony and received evidence regarding the living conditions of the
property. Tenant testified that, when the ownership of the home transferred to landlord,
she agreed that the conditions—including rats that were living in the back yard—would
be “taken care of.” One month later, landlord “made it clear to [tenant] that she wasn’t
going to fix anything.” Landlord even told tenant to put some gloves on and “pick [the
rats] up” herself. Although tenant’s $750 monthly rental rate included utilities, landlord
turned the lights, water and gas off “in the middle of winter.” According to tenant, “[i]t
was freezing,” and tenant was “scared” because she had a new baby, along with a five
and six-year old. Tenant paid rent “for about six months * * * in full,” and in that six
months, the home was without utilities for four months, ultimately forcing tenant to move
out and live at a hotel or with family. Moreover, when the utilities were shut off, the
inside of the house became “infested with rats * * *.” According to tenant, the rats
“made nests, they ate up everything. We lost everything, everything.” In support of her
claims, tenant submitted photographs of the interior and exterior of the property.
{¶ 25} We find that the trial court did not err in entering judgment in favor of
tenant, based upon the allegations set forth in the pleadings and the documents attached
thereto. We also find that the trial court did not err in granting judgment, even in the
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absence of an express motion under Civ.R. 12(C). See, e.g., Id. at ¶ 29. (“[T]he trial
court was permitted to sua sponte enter judgment on the pleadings * * *). For these
reasons, we find landlord’s second assignment of error not well-taken.
IV. Conclusion
{¶ 26} We find that the trial court did not abuse its discretion in denying
landlord’s motion for relief from judgment and further did not err in granting judgment in
favor of tenant as to tenant’s counterclaims. Accordingly, we find that landlord’s
assignments of error are not well-taken, and the October 12, 2022 judgment of the Toledo
Municipal Court if affirmed. Landlord is ordered to pay the costs of this appeal pursuant
to App.R. 24. It is so ordered.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
12.
Diana McClain
v. Cheryl R. Alexander
L-22-1268
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
13.