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Susany v. DiBlasio

Court of Appeals of Ohio, Seventh District, Mahoning

February 24, 2017

MARILYN SUSANY PLAINTIFF-APPELLEE
v.
BEN DiBLASIO DEFENDANT-APPELLANT

         Civil Appeal from the Struthers Municipal Court of Mahoning County, Ohio

          For Plaintiff-Appellee: Atty. Mark Lavelle

          For Defendant-Appellant: Atty. Lynn Sfara Bruno Atty. Charles A.J. Strader

          Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb

          OPINION

          WAITE, J.

         {¶1} 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.

         Factual and Procedural History

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} Pursuant to Civ.R. 55(B), a court is empowered to set aside a default judgment in accordance with Civ.R. 60(B). Provenzano v. Yarnish, 7th ...


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