JAMES HARRIS v. THOMAS H. JOHNSON, JR.
Case No. 10 CA 22
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 23, 2011
2011-Ohio-3102
Hоn. W. Scott Gwin, P. J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 06 CV 00375; JUDGMENT: Affirmed
For Plaintiff-Appellee
JAMES HARRIS
PRO SE
67 South Parkview Avenue
Columbus, Ohio 43209
For Defendant-Appellant
LUIS M. ALCALDE
KEGLER BROWN HILL & RITTER
Suite 1800, 65 East State Street
Columbus, Ohio 43215
{¶1} Defendant-appellant Thomas H. Johnson, Jr. appeals from the December 3, 2010, Judgment Entry entered in the Perry County Court of Common Pleas, denying his Motion for Relief from Judgment pursuant to
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On October 3, 2006 Plaintiff-Appellee, James Harris, (hereinafter “Harris“) filed a Complaint in the Perry County Court of Common Pleas to “Quiet Title” to various properties. The Complaint, which named over fifty (50) defendants, provided addresses for service of process for only six (6) of the defendants.
{¶4} Defendant-Appellant Thomas Johnson was one of those defendants for which no address was provided.
{¶5} On October 6, 2006, Appellee Harris moved the trial court for permission to serve by publication those named defendants for which he had provided no addresses.
{¶6} In an affidavit attached to the Motiоn for Service by Publication, Appellee Harris generally attested that the residence of certain of the named defendants “cannot with reasonable diligence be ascertained” and that “he has made a diligent search in public records, by talking with possible relatives, and checking electronic databases to determine the name and addresses of the persons named as defendants ... and that he has provided all of the addresses he was able to find.”
{¶7} Defendant-Appellant Johnson did not file аn answer in this matter and default judgment was granted. Quiet title was granted in Appellee‘s name.
{¶9} On July 19, 2010, Appellee filed a Motion in Opposition to Appellant‘s Motion for Relief from Judgment and Affidavit in Support and on August 2, 2010, Appellant filed a Reply to Appellee‘s Motion in Opposition.
{¶10} On August 6, 2010, the trial сourt conducted an oral hearing on Appellant‘s motion.
{¶11} By Judgment Entry filed December 3, 2010, the trial court denied Appellant‘s Motion for Relief from Judgment, finding that there was sufficiency of process in this matter. The trial court further found that Appellant‘s motion for relief was not timely filed after his discovery of the judgment against him.
{¶12} It is from this decision that Appellant nоw appeals, raising the following assignments of error for review:
ASSIGNMENT OF ERROR
{¶13} “I. THE TRIAL COURT ERRED IN NOT VACATING THE JUDGMENT OF JANUARY 11, 2007 AND GRANTING DEFENDANT-APPELLANT JOHNSON RELIEF THEREFROM ON THE BASIS OF LACK OF JURISDICTION.
{¶14} “II. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT-APPELLANT JOHNSON RELIEF FROM THE JUDGMENT OF JANUARY 11, 2007 PURSUANT TO
I., II.
{¶15} Appellant‘s Assignments of Error involve the trial court‘s denial of Appellant‘s motion for relief from judgment under
{¶16} A motion for relief from judgment under
{¶17}
{¶18} “On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment, order or proceedings for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under
{¶19} A party seeking relief from judgment pursuant to
{¶20} Further,
{¶21}
{¶22} Here, Appellant asserts that he is entitled tо relief from judgment under
{¶23} Pursuant to
{¶25} When a party challenges the existence or sufficiency of service of process, the court is ” ‘guided by the premise that service is proper where the civil rules on service are followed, unless sufficiеnt evidence exists to rebut this principle.’ ” Bowling v. Grange Mut. Cas. Co., 10th Dist. No. 05AP-51, 2005-Ohio-5924, quoting Neiswinter v. Nationwide Mut. Fire Ins. Co., 9th Dist. No. 21691, 2004-Ohio3943. “In determining whether a defendant has sufficiently rebutted the presumption of valid service, a trial court may assess the credibility and competency of the submitted evidence demonstrating non-service.” Bowling at ¶ 33.
{¶26} The trial court below found that Appellee‘s Motion and Affidavit for Publication was sufficient to allow publiсation in the lower court case. Further, Appellee provided the trial court a more detailed Affidavit setting forth the efforts he made to discover the address of Appellant in 2006. Additionally, the trial court found that the tax bills submitted by Appellant in support of his argument that his address was readily ascertainable were prepared in February, 2008, well after the default judgment was granted in this matter.
{¶27} As Appellant has not filed a transcript of the hearing on his
{¶28} Moreover, we find that Appellant‘s motion was not timely. In the case sub judice, Appellant moved for relief under subsection (B)(5) which is “any other reason justifying relief from the judgment.” Although a
{¶29} The judgment entry and the record herein, without a transcript, reflect that Appellant became aware of the default judgment and the transfer of the real property sometime betwеen 2007-2008. During that time Appellant attempted to pay the taxes on the property and correct his mailing address on those records. However, Appellant did not file his mоtion for relief from judgment until July 8, 2010, approximately 3 ½ years after the default judgment was granted.
{¶30} Appellant offers no explanation for the significant period of delay betwеen the time he discovered the default judgment and the time he filed his motion for relief from judgment.
{¶32} Based on the foregoing, we find that the trial court did not abuse its discretion in denying Appellant‘s motion for relief from judgment.
{¶33} Appellant‘s assignments of error are overruled.
{¶34} For the foregoing reasons, the Judgment of the Court of Common Pleas, Perry County, Ohio, is affirmed.
By: Wise, P. J.
Gwin, J., and
Delaney, J., concur.
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JUDGES
JWW/d 0613
JAMES HARRIS v. THOMAS H. JOHNSON, JR.
Case No. 10 CA 22
IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Perry County, Ohio, is affirmed.
Costs assessed to Appellant.
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JUDGES