2011 Ohio 6889
Ohio Ct. App.2011Background
- MWCD leased real property around fourteen lakes for cottage sites with maintenance guidelines.
- MWCD alleged Kellar violated the lease by inoperative/unlicensed vehicles, debris and cat litter accumulation, and unrestrained dogs.
- MWCD gave notices of violation and terminated the lease effective August 8, 2010.
- MWCD filed a breach of contract and declaratory judgment action on August 10, 2010; service by certified mail was unclaimed; regular mail pursuant to Civ.R. 4(D) was sent September 3, 2010.
- Default judgment was entered October 12, 2010 ordering eviction within 30 days and sale of unremoved property.
- Kellar moved under Civ.R. 60(B) to vacate; evidentiary hearing held January 24, 2011; trial court denied relief; judgment affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R.60(B) relief was warranted | Kellar claimed excusable neglect entitles relief. | MWCD contends 60(B) relief requires meritorious defense and timely filing. | No; relief denied as criteria not satisfied. |
| Whether failure to respond constitutes excusable neglect | Kellar relied on misunderstandings and relied on others to handle responses. | Neglect based on misunderstanding is not excusable. | Not excusable neglect. |
| Whether Kellar presented a meritorious defense | Kellar was singled out while others violated the lease. | No evidence of discriminatory intent or breach by MWCD; no meritorious defense shown. | No meritorious defense shown. |
Key Cases Cited
- GTE Automatic Elec. v. ARC Indus., 47 Ohio St.2d 146 (Ohio 1976) (three-part test for Rule 60(B) relief)
- Katko v. Modic, 85 Ohio App.3d 834 (Ohio App.3d 1993) (excusable neglect not established by mere failure to respond)
- Associated Estates Corp. v. Fellows, 11 Ohio App.3d 112 (Ohio App.3d 1983) (lack of reading notices not excusable neglect)
- Griffey v. Rajan, 33 Ohio St.3d 75 (Ohio 1987) (discretion of trial court in 60(B) matters; abuse of discretion standard)
- State ex rel. Richard v. Seidner, 76 Ohio St.3d 149 (Ohio 1996) (Civ.R.60(B) relief requires meritorious defense and timely filing)