2011 Ohio 3102
Ohio Ct. App.2011Background
- Harris filed a civil action to quiet title in Perry County Common Pleas Court naming over 50 defendants.
- Johnson was served without an address and did not answer; Harris sought publication service for those lacking addresses.
- Harris filed a Motion for Service by Publication; an affidavit claimed defendants’ residences could not be ascertained with reasonable diligence.
- Johnson did not respond; a default judgment and quiet title in Harris’s name were entered.
- Johnson moved for relief from judgment under Civ.R. 60(B); Harris opposed; there was an August 6, 2010 hearing.
- The trial court denied relief from judgment on December 3, 2010; Johnson appealed the decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 60(B)(5) relief was proper | Johnson lacks meritorious defense; relief untimely | Service by publication void; judgment voidable under Civ.R. 60(B)(5) | No abuse of discretion; not timely or proper relief |
| Whether service by publication was sufficient | Publication was proper under the affidavit and diligent efforts | Defective service due to insufficient detailing of efforts to locate address | Publication sufficient; service valid |
Key Cases Cited
- Griffey v. Rajan, 33 Ohio St.3d 75 (Ohio 1987) (Civ.R. 60(B) relief requires discretionarily sound decision)
- GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (Ohio 1976) (three-part test for Civ.R. 60(B) relief)
- Blasko v. Mislik, 69 Ohio St.2d 684 (Ohio 1982) (Civ.R. 60(B) not an appeal substitute; timeliness considerations)
- Mt. Olive Baptist Church v. Pipkins Paints & Home Impr. Ctr., Inc., 64 Ohio App.2d 285 (Ohio Ct. App. 1979) (unreasonable delay defeats Civ.R. 60(B)(5) relief)
- Colley v. Bazell, 64 Ohio St.2d 243 (Ohio 1980) (balance between finality and justice in Civ.R. 60(B))
- Adomeit v. Baltimore, 39 Ohio App.2d 97 (Ohio Ct. App. 1974) (extraordinary cases for Civ.R. 60(B) relief)
- In re Marriage of Watson, 13 Ohio App.3d 344 (Ohio Ct. App. 1983) (reasonable time standard for Civ.R. 60(B) motions)
- Bowling v. Grange Mut. Cas. Co., 2005-Ohio-5924 (Ohio Ct. App. 2005) (presumption of valid service; credibility of evidence matters)