Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Struthers Municipal Court of Mahoning County,
Plaintiff-Appellee: Atty. Mark Lavelle
Defendant-Appellant: Atty. Lynn Sfara Bruno Atty. Charles
Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb
Appellant Ben DiBlasio appeals an April 8, 2015 decision of
the Struthers Municipal Court denying his motion to vacate a
default judgment. Asserting Civ.R. 60(B)(1) grounds,
Appellant argues that his failure to respond to the complaint
is excusable because of his unfamiliarity with the legal
system. Additionally, he argues that he was not served with
the motion for default judgment, which he claims is grounds
for excusable neglect. For the reasons that follow,
Appellant's argument is without merit and the judgment of
the trial court is affirmed.
and Procedural History
Appellant and Appellee Marilyn Susany entered into a
non-written lease involving rental property located at 711
Eighth Street in Struthers, Ohio. The record does not provide
details of the parties' agreement; however, based on the
damages award, it appears that the rent was $400 per month.
According to Appellant, he voluntarily vacated the property
on July 1, 2014. On August 25, 2014, Appellee filed a
complaint alleging that Appellant failed to pay rent in
February, July, and August of 2014. The complaint also
alleged that Appellant damaged the property and removed
several items from the property without permission.
Appellant admits that he was served with the summons and
complaint on August 29, 2014. Although the summons and
complaint were initially sent to Appellant at the rental
property address, the docket sheet reflects that a new
address at 204 Creed Street was provided and Appellant was
served at that address. The summons stated, in relevant part,
"[f]ailure to appear and present a defense to this
complaint will result in a judgment by default being rendered
against you for the relief demanded in the complaint."
(8/26/14 Summons.) The language of the complaint also
informed Appellant that he had 28 days to respond.
Appellant claims that, when he received service, he called
Appellee's attorney who allegedly advised him that he had
three options: (1) he could hire an attorney, (2) he could
answer the complaint, or (3) he could do nothing. Appellant
claims that he then called the Mahoning County Bar
Association and that someone there told him he did not have
to take any action. He also claims that he consulted with an
attorney online, who provided similar advice. Appellant chose
not to respond to the compliant. Consequently, on October 30,
2014, Appellee filed a motion for default judgment. Although
Appellant states that he was not served with this motion, the
certificate of service states that a copy of the motion was
sent by regular mail to him at 204 Creed Street, Struthers,
Ohio. Appellant admits that he received the summons and
complaint at this address. Appellant again failed to respond.
Consequently, on November 7, 2014, the trial court granted
Appellee's motion for default judgment.
On January 7, 2015, Appellant was served at his 204 Creed
Street address with a notice of a debtor's exam hearing.
Shortly thereafter, Appellant obtained counsel. On January
30, 2015, his counsel filed a motion to vacate the default
judgment based on Civ.R. 60(B)(1) grounds. On April 8, 2015,
the court held a hearing and denied Appellant's motion
that same day. On May 13, 2015, the trial court granted
Appellant's motion for a stay pending appeal. We note
that Appellee did not file a brief in this matter.
Assignment of Error
That pursuant to Civil Rule 60(B), the trial court erred in
overruling the Defendant/Appellant's, Ben DiBlasio,
Motion to Vacate the Default Judgment of November 7, 2014.
Pursuant to Civ.R. 55(B), a court is empowered to set aside a
default judgment in accordance with Civ.R. 60(B).
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