2023 Ohio 4247
Ohio Ct. App.2023Background
- Belmont County Treasurer (K. Kelich) filed an in rem tax-foreclosure complaint for unpaid taxes on 3735 Highland Ave., naming record owners Joseph V. and Mary M. Givens.
- Clerk mailed certified notices to the record owners addressed c/o their grandson Greg Givens; the certified mailings were returned unclaimed. The Treasurer also published foreclosure notice in The Times Leader for three consecutive weeks as required by statute.
- Court entered default judgment (March 18, 2022); sheriff’s sale notices were published in April 2022; John D. Longwell purchased the property at sale; sale was confirmed June 15, 2022.
- Carol Givens (appellant, pro se) filed a Dec. 15, 2022 motion to set aside/vacate the judgment and unwind the sale, alleging lack of notice, fraud, and an oral interest in the property.
- Trial court treated the filing as a Civ.R. 60(B) motion, found appellant lacked standing and failed to establish any Civ.R. 60(B) ground or a meritorious defense, and denied relief. Appellant timely appealed; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Treasurer) | Defendant's Argument (Givens) | Held |
|---|---|---|---|
| 1. Standing to move to vacate (Civ.R.60(B)) | Appellant lacks legal title or record interest, so she has no standing. | Appellant claims an oral agreement/interest in the property and injury from the sale. | Appellant lacked standing; non-party cannot bring Civ.R.60(B) motion here. |
| 2. Statutory notice/service adequacy | Clerk complied with R.C. 5721.18: certified mail to record owners c/o Greg and publication for three weeks. | No actual notice was given; state records show no notice to Givens. | Service by certified mail (though unclaimed) plus statutory publication satisfied due process and the statute. |
| 3. Civ.R.60(B) grounds and meritorious defense | Appellant did not prove any of the five Rule 60(B) grounds nor a meritorious defense. | Alleged fraud, newly discovered evidence, and excusable neglect justify relief. | Even if timely, appellant failed the GTE three-prong test: no standing/meritorious claim and no proven Rule 60(B) ground. |
| 4. Whether default judgment is void for lack of notice | Judgment not void because statutory notice via publication was accomplished. | Judgment is void for lack of proper service and notice. | Judgment not void; trial court did not abuse discretion in denying vacatur and confirming sale. |
Key Cases Cited
- GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.3d 146 (articulates the three-prong standard for relief under Civ.R. 60(B))
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (establishes the three-part constitutional standing test)
- Muze v. Mayfield, 61 Ohio St.3d 173 (recognizes trial court discretion to assess costs under Civ.R. 54(D))
- State v. Torres, 66 Ohio St.3d 340 (cited by appellant regarding joinder/prejudice arguments; court found the joinder claim lacked merit)