UNION SAVINGS BANK, Plаintiff-Appellant, vs. JAMES MARTIN TRUCKING, LTD, JAMES E. MARTIN a.k.a. JAMES E. MARTIN, JR., JANE DOE, UNKNOWN SPOUSE OF JAMES E. MARTIN a.k.a. JAMES E. MARTIN, JR., GEORGIA LEE REEVES a.k.a. GEORGIA L. REEVES, JOHN DOE, UNKNOWN SPOUSE OF GEORGIA LEE REEVES a.k.a. GEORGIA L. REEVES, ADRIAN R. REEVES, HERBERT R. SIES, BENNY MUNCY, CYNTHIA MUNCY, LYKINS OIL COMPANY, GENERAL ELECTRIC CAPITAL CORPORATION, CITIBANK (SOUTH DAKOTA), N.A., STATE OF OHIO, DEPARTMENT OF TAXATION, UNITED STATES OF AMERICA, and STATE OF OHIO, BUREAU OF WORKERS’ COMPENSATION, Defendants, and T-MOBILE CENTRAL, LLC, Defendant-Appellee.
APPEAL NO. C-120224
TRIAL NO. A-1100582
COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 7, 2012
2012-Ohio-5758
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 7, 2012
Graydon Head & Ritchey LLP, J. Michael Debbeler, Jeffrеy M. Hendricks, and Brittany L. Griggs, for Plaintiff-Appellant,
Thompson Hine LLP, John B. Kopf III, Scott A. Campbell, and Jerry Vande Werken, for Defendant-Appellee.
Please note: This case has been removed from the accelerated calendar.
{¶1} Plaintiff-appellant Union Savings Bank (“USB“) has appealed the judgment of the Hamilton County Common Pleas Court denying its motion for partial relief from a deсree of foreclosure. For the following reasons, we affirm the judgment.
Factual Background
{¶2} In December 2004, James E. Martin, Jr., Georgia Lee Reeves, аnd Adrian R. Reeves executed a mortgage in favor of USB, granting a security interest in certain property, consisting of three parcels. The mortgage was recorded on January 3, 2005, and was re-recorded on February 25, 2005.
{¶3} On December 8, 2006, a memorandum of a lеase was recorded. The lease was made between Martin and defendant-appellee T-Mobile Central, LLC, (“T-Mobile“) regarding one of the parcels covered by the USB mortgage.
{¶4} In January 2011, USB named T-Mobile as a defendant in its foreclosure action on the mortgage. T-Mobile filed an answer to the complaint, asserting its leasehold rights and interests, and seeking to have any sale of the property made subject to its interests.
{¶5} The mortgagors did not file a responsive pleading to the foreclosurе complaint, so USB sought a default judgment against them.
{¶6} USB‘s attorney prepared a draft of a decree of foreclosurе and circulated it to the parties who had filed a responsive pleading, including T-Mobile, for approval. Counsel for T-Mobilе proposed language to be added to the decree that ensured that its lease would survive the foreclosure salе and that any purchaser would take the property subject to T-Mobile‘s leasehold interests.
{¶7} Shortly thereafter, USB‘s attorney responded that another lienholder would not agree to the proposed language unless T-Mobile agreed to make the terms of the lease
{¶8} The decree was amended to address another defendant that had entered an appearance. The amendment did not change the language that had protected T-Mobile‘s interest in the property. The amended dеcree was entered May 10, 2011.
USB‘s Motion for Relief from Judgment
{¶9} On June 30, 2011, USB sought partial relief from the amended decree of foreclosure pursuant to
{¶10} T-Mobile opposed the motion. A magistrate of the common pleas cоurt denied the relief sought by USB. The trial court overruled USB‘s objections and adopted the magistrate‘s decision. USB appealed.
{¶11} In two assignments of error, USB argues that the trial court erred by denying its motion for relief pursuant to
Civ.R. 60(B)
{¶12} To prevail on a
{¶14} In this case, USB argues that it was entitled to relief under
{¶15} For purposes of
{¶16} Generally, “excusable neglect” results from an attorney‘s omission to do an act. See Len-Ran, Inc. v. Erie Ins. Group, 11th Dist. No. 2006-P-0025, 2007-Ohio-4763, ¶ 30; Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996). But if an attorney‘s inaction can be labeled as a “complete disregard for the judicial system,” the conduct is not excusable neglect. Kay at 20, citing GTE at 153. For example, we have held that a рarty did not demonstrate excusable neglect under
{¶17} On the other hand, courts are not inclined to find excusable nеglect in situations where an attorney‘s allegedly neglectful conduct is an affirmative act. See Len-Ran, supra; Social Psychologicаl Servs., Inc. v. Magellan Behavioral Health, Inc., 10th Dist. No. 10AP-326, 2010-Ohio-6531. For instance, we have held that a party failed to demonstrate excusable neglect in a case where the attorney had inadvertently dismissed his client‘s claims with prejudice. Poe, supra.
{¶18} In this case, USB‘s attorney had affirmatively participated in the negotiation, drafting, and submission of two foreclosure decrees that subordinated USB‘s interest in the property to that of T-Mobile. The attorney‘s failure to recognize that the inclusion of the subordinating language could negatively impact his client did not constitute excusable neglect for purposes of
{¶19} USB also argues that the trial court erred by denying its motion for relief from the foreclosure judgment under
Conclusion
{¶20} Because USB failed to demonstrаte that it was entitled to relief under
Judgment affirmed.
CUNNINGHAM J., concurs.
FISCHER, J., dissents.
Please note:
The court has recorded its own entry on the date of the release of this opinion.