Home S. & L. Co. of Youngstown v. Avery Place, L.L.C. ( 2014 )

[Cite as Home S. & L. Co. of Youngstown v. Avery Place, L.L.C., 2014-Ohio-1747.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The Home Savings and Loan Company :
of Youngstown, Ohio,
:
Plaintiff-Appellee,
: No. 13AP-777
v. (C.P.C. No. 09CVE 9 14464)
:
Avery Place, LLC, c/o James J. Moro, (REGULAR CALENDAR)
Statutory Agent, :
Defendants-Appellants, :
Dispatch Printing Company et al., :
Defendants-Appellees. :
The Home Savings and Loan Company :
of Youngstown, Ohio,
:
Plaintiff-Appellee, No. 13AP-778
: (C.P.C. No. 10CVE 8 11601)
v.
: (REGULAR CALENDAR)
James J. Moro,
:
Defendant-Appellant,
:
Jane Doe, unknown spouse, if any, of
James J. Moro et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on April 24, 2014
Nos. 13AP-777 and 13AP-778 2
Richard L. Goodman Co. L.P.A., and Richard L. Goodman,
for appellant Avery Place, LLC.
James J. Moro, pro se.
Bricker & Eckler LLP, Anthony M. Sharett, and Kenneth C.
Johnson, for appellee Navy Portfolio, LLC.
APPEALS from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} James J. Moro ("Moro") and Avery Place, LLC ("Avery"), defendants-
appellants, appeal the judgment of the Franklin County Court of Common Pleas, in which
the court denied their motion for relief from judgment pursuant to Civ.R. 60(B). Navy
Portfolio, LLC, plaintiff-appellee, has filed a motion to dismiss Avery as a party for failure
to file a brief.
{¶2} Avery owns a condominium development named Avery Place. Avery is a
limited liability company with Moro as its sole member. Moro owns two of the
condominium units in Avery Place. Home Savings & Loan Company of Youngstown, Ohio
("Home Savings") made loans to both Avery and Moro secured by mortgages on the real
property at Avery Place. On September 25, 2009, Home Savings filed a complaint in
foreclosure against Avery. On August 6, 2010, Home Savings filed a complaint in
foreclosure against Moro. The cases were subsequently consolidated.
{¶3} Home Savings filed summary judgment motions against both Avery and
Moro. On December 2, 2011, the trial court granted Home Saving's motions for summary
judgment. Avery and Moro appealed the decision to this court, and in Home S. & L. Co. of
Youngstown v. Avery Place, L.L.C., 10th Dist. No. 11AP-1152, 2012-Ohio-6255 ("Avery
Place I"), this court affirmed the trial court's decision. On November 16, 2012, appellee
was substituted in the trial court as plaintiff for Home Savings.
{¶4} On May 11, 2013, Moro and Avery filed a Civ.R. 60(B) motion for relief from
judgment, which was based upon affidavits that were filed in related Florida proceedings
involving Moro, Avery Place, and Home Savings. On August 12, 2013, the trial court
issued a decision and entry denying Moro and Avery's motion for relief from judgment,
Nos. 13AP-777 and 13AP-778 3
finding that it was without jurisdiction to hear the motion because there was nothing
pending before the court to allow it to grant relief from judgment. Therefore, the trial
court determined that the motion should be "stricken." Avery and Moro appealed the
judgment of the trial court.
{¶5} After briefs were filed, appellee filed a motion to dismiss Avery's appeal. In its
motion to dismiss, appellee argued that Avery did not file an appellate brief, and that
Moro is not permitted to file a brief on behalf of a limited liability company; thus, Avery's
appeal should be dismissed. Moro responded to appellee's motion to dismiss by arguing
that, because Avery has been dissolved and is no longer a limited liability company, and
Moro was the sole shareholder of Avery, Moro was entitled to file the initial brief on
Avery's behalf. However, on February 20, 2014, we filed a journal entry that granted
Avery's motion to permit the re-filing of the merit and reply briefs with Avery's counsel
properly noted thereon. Given our February 20, 2014 entry allowing Avery's counsel to be
properly noted on the pleadings, we find appellee's motion to dismiss is now moot.
{¶6} In their brief, Moro and Avery (hereafter collectively "appellants") assert the
following assignment of error:
The trial court erred when it determined that it was without
jurisdiction to hear Defendant's Motion for Relief from
Judgment.
{¶7} Appellants argue in their assignment of error that the trial court erred in
denying their motion for relief from judgment pursuant to Civ.R. 60(B). Civ.R. 60(B)
provides that a trial court may relieve a party from a final judgment, order or proceeding
for the following reasons:
(1) [M]istake, 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.
Nos. 13AP-777 and 13AP-778 4
The rule requires the motion to 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." Civ.R. 60(B). "A motion for relief from judgment under Civ.R. 60(B) is addressed
to the sound discretion of the trial court, and that court's ruling will not be disturbed on
appeal absent a showing of abuse of discretion." Griffey v. Rajan, 33 Ohio St.3d 75, 77
(1987). The term "abuse of discretion" connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983), citing State v. Adams, 62 Ohio St.2d 151, 157
(1980). When applying an abuse of discretion standard, an appellate court may not
substitute its judgment for that of the trial court. Berk v. Matthews, 53 Ohio St.3d 161,
169 (1990).
{¶8} To prevail under Civ.R. 60(B), the movant must show that: (1) the movant has
a meritorious defense or claim to present if relief is granted, (2) the movant 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. v. ARC Industries, 47 Ohio St.2d
146 (1976), paragraph two of the syllabus. The movant must satisfy all three of these
requirements to obtain relief. State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151
(1996).
{¶9} In the present case, the trial court found that it was without jurisdiction to
hear appellants' motion and, as such, there was nothing pending before the court to allow
it to grant relief from judgment. Appellants argue that the trial court erred when it
determined that it had no jurisdiction. Although the underlying basis of the trial court's
decision is not clear, it appears that the trial court reasoned that, because it issued a
foreclosure decree, and this court affirmed the decree in Avery Place I, the issue was no
longer pending before the court.
{¶10} Notwithstanding the trial court's unclear basis for having the motion
"stricken," we find there is another reason to affirm the judgment of the trial court. An
appellate court must affirm a trial court's judgment if there are any valid grounds to
support it. See Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96 (1990) (noting an
appellate court must affirm the judgment on review if that judgment is legally correct on
other grounds, as any error is not prejudicial in view of the correct judgment the trial
Nos. 13AP-777 and 13AP-778 5
court reached). Although the trial court here found that it had nothing pending before it to
allow it to grant a motion for relief from judgment, we find, instead, that the motion for
relief from judgment should have been denied as being untimely filed. Although
appellants did not identify in their motion upon which Civ.R. 60(B) ground they were
basing it, it appeared to be based upon Civ.R. 60(B)(2), newly discovered evidence. In
their motion, appellants argued that Moro had "recently discovered that [Home Savings],
in the course of its filing notices of recording of a foreign judgment in the State of Florida,
filed on the same day, September 4, 2009, in two different Circuit Courts, two (2)
affidavits of Stan Foraker, Senior Vice President of Plaintiff, which were contradictory,
and therefore constituted 'robo-signing', and, as such, constitutes an invalid affidavit."
The alleged contradiction was that each affidavit listed a different address for Moro.
{¶11} As noted above, a motion filed, pursuant to Civ.R. 60(B)(2), must be made
within a reasonable time but not more than one year after the judgment. In their reply
appellate brief, appellants deny that their motion was based upon Civ.R. 60(B)(2) and
suggest that it was filed, pursuant to Civ.R. 60(B)(5), which does not have the one-year
limit and must only be made within a reasonable time. Although there exists some
dispute as to whether the intervening appeal in Avery Place I should toll the one-year
period for filing under Civ.R. 60(B)(2), the pendency of an appeal does not affect the
reasonable time requirement under Civ.R. 60(B). See Stuller v. Price, 10th Dist. No.
02AP-29, 2003-Ohio-583. Therefore, in the present cases, regardless of under which
ground appellants meant to file their motion, they still must have done so within a
reasonable time.
{¶12} The determination of whether a motion for relief from judgment under
Civ.R. 60(B) has been filed within a reasonable time necessarily involves consideration of
the facts and circumstances of the particular case. Morris v. Morris, 2d Dist. No. 2013-
CA-29, 2014-Ohio-734, ¶ 34. The determination of what constitutes a reasonable time is
within the sound discretion of the trial court. In re Guardianship of Brunstetter, 11th
Dist. No. 2002-T-0008, 2002-Ohio-6940, ¶ 14, citing Shell v. Cryer, 11th Dist. No. 2001-
L-083, 2002-Ohio-848. A movant must offer some operative facts or evidentiary material
demonstrating the timeliness of his or her motion. Id.Nos. 13AP-777 and 13AP-778 6
{¶13} Here, appellants failed to present operative facts to demonstrate that they
filed their motion for relief from judgment within a reasonable time. The judgment from
which appellants seek relief was entered by the trial court on December 2, 2011.
Appellants filed their motion for relief from judgment on May 11, 2013. In their motion for
relief from judgment, appellants stated that Moro "recently discovered" the affidavits filed
in the Florida proceedings. Appellants did not further explain when Moro discovered the
affidavits. Importantly, the affidavits were filed on September 4, 2009, and appellants do
not explain why Moro could not have discovered them sooner, given Moro and Avery were
parties to the Florida proceedings. Given the circumstances, Moro should have been well
aware of the affidavits long in advance of the trial court's final judgment in this case.
However, appellants did not file the motion for relief from judgment until 17 months after
the trial court's decision and five months after this court issued Avery Place I. Therefore,
we find appellants' motion for relief from judgment filed 17 months after the final
judgment was not made within a reasonable time. For these reasons, based on the facts of
this case, we conclude the trial court properly denied appellants' motion for relief from
judgment, albeit for a different reason than that relied upon by the trial court. Appellants'
assignment of error is overruled.
{¶14} Accordingly, appellants' single assignment of error is overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed. Furthermore,
appellee's motion to dismiss Avery as a party to the appeal is moot.
Judgment affirmed.
DORRIAN and O'GRADY, JJ., concur.
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