Retirement Mgt. Co. v. Nsong
2017 Ohio 5869
| Ohio Ct. App. | 2017Background
- In 2009 Nsong bought commercial property and business assets (a retirement community) from RMC under an "Installment Land Contract" with ancillary documents (including a cognovit note); payments and tax obligations were required and default provisions allowed RMC to re-enter after default.
- RMC alleged defaults (missed payments and unpaid property taxes) and served a three-day statutory notice; it filed a forcible-entry-and-detainer (eviction) complaint in March 2015 seeking possession.
- Nsong did not appear at the March 30, 2015 eviction hearing; the magistrate awarded RMC restitution and costs.
- Nsong filed a Civ.R. 60(B) motion to vacate arguing lack of service, failure to receive the three-day notice, and that the action required foreclosure under R.C. 5313.07 (land installment statute) because a dwelling existed on the property.
- The trial court held an evidentiary hearing, found service and notice were proper, concluded the property was commercial (so R.C. 5313.07 did not apply), and denied the Civ.R. 60(B) motion; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (RMC) | Defendant's Argument (Nsong) | Held |
|---|---|---|---|
| Whether R.C. 5313.07 (land-installment foreclosure procedure) applied | Property was commercial; R.C. 5313.07 governs residential dwellings only | Existence of a dwelling on the premises requires R.C. 5313.07 and foreclosure procedure | Court: Property was "most essentially commercial"; R.C. 5313.07 inapplicable; forcible-entry-and-detainer proper |
| Whether statutory three-day notice and service of process were satisfied | RMC served the three-day notice and summons according to statute; trial-court records and affidavits support compliance | Nsong said she never received the notice or summons; contested service sufficiency | Court: Trial court credited RMC evidence and record; service and notice found sufficient |
| Whether lack of service could justify relief under Civ.R. 60(B) | Lack of service goes to jurisdiction and is not a Civ.R. 60(B) ground; movant must use proper jurisdictional challenge | Characterized nonservice as excusable neglect/other reason under Civ.R. 60(B)(5) | Court: Nonservice challenges jurisdiction and are not resolved under Civ.R. 60(B); Nsong failed to meet Civ.R. 60(B) requirements |
| Whether trial court abused its discretion denying Civ.R. 60(B) relief | Trial court properly weighed credibility, applied law, and followed procedure | Trial court abused discretion and committed reversible error in findings and denial | Court: No abuse of discretion; denial affirmed |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (defines "abuse of discretion" standard)
- Griffey v. Rajan, 33 Ohio St.3d 75 (Ohio 1987) (appellate review of trial-court discretion)
- Berk v. Matthews, 53 Ohio St.3d 161 (Ohio 1990) (appellate court must not substitute its judgment for trial court's under abuse-of-discretion review)
- GTE Automatic Electric, Inc. v. Arc Industries, Inc., 47 Ohio St.2d 146 (Ohio 1976) (standards for Civ.R. 60(B) relief)