Home S. & L. Co. of Youngstown v. Avery Place, L.L.C.
2014 Ohio 1747
Ohio Ct. App.2014Background
- Moro and Avery Place, LLC appeal a Civ.R. 60(B) ruling in a foreclosure case against Avery and Moro; Home Savings holds mortgages on Avery Place properties.
- Avery Place is an LLC with Moro as sole member; Moro owns two units in Avery Place.
- Foreclosure complaints were filed by Home Savings in 2009 (Avery) and 2010 (Moro) and later consolidated.
- Home Savings moved for summary judgment against both Avery and Moro; the trial court granted, which this court affirmed in Avery Place I (2012).
- On May 11, 2013, Moro and Avery sought Civ.R. 60(B) relief based on affidavits from Florida proceedings; the trial court denied, finding no pending matter to grant relief.
- Avery later sought to re-file briefs with proper counsel after a February 2014 journal entry; the motion to dismiss Avery became moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Civ.R. 60(B) motion was timely. | Avery/Moro filed within reasonable time. | Motion timely under Civ.R. 60(B)(2)/(5) depending on ground. | Timeliness denied; motion not within reasonable time. |
Key Cases Cited
- Griffey v. Rajan, 33 Ohio St.3d 75 (1987) (abuse of discretion standard for Civ.R. 60(B))
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion; requires reasonableness)
- GTE Auto. Elec. v. ARC Indus., 47 Ohio St.2d 146 (1976) (three-part test for Civ.R. 60(B))
- State ex rel. Richard v. Seidner, 76 Ohio St.3d 149 (1996) (requires meritorious defense, ground, and timely motion)
- Morris v. Morris, 2014-Ohio-734 (Ohio 2d Dist.) (timeliness and facts support reasonable time)
- In re Guardianship of Brunstetter, 2002-Ohio-6940 (11th Dist.) (reasonable time within discretionary review)
- Stuller v. Price, 2003-Ohio-583 (10th Dist.) (pendency of appeal does not toll reasonable time)
- Joyce v. General Motors Corp., 49 Ohio St.3d 93 (1990) (affirm on alternate grounds if correct)