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Landspan Corp. v. Curtis

December 4, 2008

LANDSPAN CORPORATION PLAINTIFF-APPELLEE
v.
JOHN CURTIS DEFENDANT-APPELLANT



Civil Appeal from the Cuyahoga County Common Pleas Court, Case No. CV-634282, JUDGMENT: AFFIRMED.

The opinion of the court was delivered by: Anthony O. Calabrese, Jr., J.

JOURNAL ENTRY AND OPINION

BEFORE: Calabrese, J., Sweeney, A.J., and McMonagle, J.

{¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of counsel.

{¶2} Defendant-appellant, John Curtis ("Curtis"), appeals the decision of the lower court. Having reviewed the arguments of the parties and the pertinent law, we hereby affirm the lower court.

I.

{¶3} On or about August 29, 2007, plaintiff-appellee, Landspan Corporation ("Landspan"), filed a complaint against Curtis for breach of lease. Curtis admits that he received the complaint and argues that he filed his answer pro se. However, contrary to Curtis's claim that he filed an answer pro se, no such entry appears upon the docket. On November 8, 2007, Landspan filed an application for default judgment. Curtis failed to answer and failed to appear at the December 20, 2007 default hearing. The lower court awarded default judgment to Landspan.

{¶4} Later, in order to collect on its judgment, Landspan transferred the judgment to Cleveland Municipal Court and filed a bank garnishment. On May 2, 2008, Curtis filed a motion for relief from judgment. The lower court denied Curtis's motion on May 20, 2008. Curtis now appeals.

II.

{¶5} Curtis's assignment of error provides the following: "The trial court erred when it denied the defendant's motion for relief from judgment."

III.

{¶6} Curtis argues that the lower court erred when it denied his motion for relief from judgment. We do not find merit in his argument. Pursuant to Civ.R. 60(B), a movant must demonstrate three factors in order to obtain relief from judgment: (1) a meritorious defense or claim if relief is granted; (2) entitlement to relief under Civ.R. 60(B)(1)-(5); and (3) that the motion was filed within a reasonable time, with a maximum time being one year from the entry of judgment if the movant alleges entitlement to relief under Civ.R. 60(B)(1)-(3). GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus.

{¶7} These requirements are independent of one another and in the conjunctive. Strack v. Pelton, 70 Ohio St.3d 172, 174, 1994-Ohio-107, 637 N.E.2d 914. Thus, if the movant fails to satisfy any one of these requirements, the trial court must deny the motion. Id.

{ΒΆ8} The standard of review used to evaluate the trial court's decision to deny or grant a Civ.R. 60(B) motion is an abuse of discretion. State ex rel. Russo v. Deters, 80 Ohio St.3d 152, 153, 1997-Ohio-351, 684 N.E.2d 1237. An abuse of discretion is more than an error in judgment or law; it implies an attitude on the part of the trial court that is unreasonable, ...


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