Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
A. FRIEDLANDER, Attorney for Plaintiff-Appellee.
JONES, Defendant-Appellant-Pro Se.
1} Defendant-appellant Eti Jones appeals, pro se,
from a judgment of the Montgomery County Court of Common
Pleas granting default judgment on the complaint in
foreclosure filed by plaintiff-appellee Tax Ease, L.L.C.
("Tax Ease"). Because we conclude that the trial
court did not abuse its discretion in granting the default
judgment, we affirm.
2} On May 30, 2017, Tax Ease filed a complaint in
foreclosure against Jones in relation to her real property
located at 5090 Altrim Road in Dayton. In the complaint, Tax
Ease alleged that it was the purchaser and current holder of
tax certificates, by which it had acquired the first lien,
previously held by Montgomery County, for the amount of
delinquent taxes, assessments, interest, and penalties
charged against the property. Among other relief, Tax Ease
asked for a determination of the amounts due on the
certificates plus interest, an order of sale directing the
sheriff to conduct a sale of the property with certain
conditions, and an order directing that proceeds from the
sale be applied to satisfy the amounts owed to it. Service
was perfected on Jones on June 3, 2017. Jones did not file an
answer, and on July 21, 2017, Tax Ease filed a motion seeking
default judgment. The trial court entered default judgment
and issued a Decree in Foreclosure. Jones appeals.
3} We begin by noting that Jones's appellate
brief fails to conform to App.R. 16(A)(3) which requires that
an appellate brief contain a "statement of the
assignments of error presented for review, with reference to
the place in the record where each error is reflected."
A review of her appellate brief demonstrates that Jones fails
to raise any objections or concerns regarding the validity of
the default judgment. Rather, she states that she believes
the real estate taxes assessed upon the subject property were
too high. She further contends that she contacted Tax Ease to
inform them that she planned to make payments once she
received a "small settlement coming in due to an
automobile accident." She attached a copy of what
appears to be text messages between her and her personal
injury attorney regarding the settlement. Finally, she claims
that she received the settlement monies the same day that
default judgment was entered.
4} Civ.R. 55(A) provides that "[w]hen a party
against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these
rules, the party entitled to a judgment by default shall
apply in writing or orally to the court therefor; * * * If
the party against whom judgment by default is sought has
appeared in the action, he shall be served with written
notice of the application for judgment at least seven days
prior to the hearing on such application." A trial
court's grant or denial of a motion for default judgment
will not be reversed absent an abuse of discretion.
Equable Ascent Fin., LLC. v. Christian, 196 Ohio
App.3d 34, 2011-Ohio-3791, 962 N.E.2d 322, ¶ 6 (10th
Dist.). " 'Abuse of discretion' has been defined
as an attitude that is unreasonable, arbitrary or
unconscionable. (Internal citation omitted). It is to be
expected that most instances of abuse of discretion will
result in decisions that are simply unreasonable, rather than
decisions that are unconscionable or arbitrary. A decision is
unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the
reviewing court, were it deciding the issue de novo, would
not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that
would support a contrary result." AAAA Enterprises,
Inc. v. River Place Community Redevelopment, 50 Ohio
St.3d 157, 161, 553 N.E.2d 597 (1990).
5} In Ohio, "[l]itigants who choose to proceed
pro se are presumed to know the law and correct procedure,
and are held to the same standards as other litigants."
Yocum v. Means, 2d Dist. Darke No. 1576,
2002-Ohio-3803, ¶ 20. In this case, Jones failed to
answer the complaint, to otherwise defend, or to make any
type of appearance before the trial court. And on appeal, she
fails to set forth any argument relevant to the entry of the
default judgment. Furthermore, "[a]n appellate court is
limited to reviewing the record, and will disregard alleged
facts that are not of record in the trial court."
(Citations omitted.) Chase Manhattan Mtg. Corp. v.
Locker, 2d Dist. Montgomery No. 19904, 2003-Ohio-6665,
¶ 10. Thus, we cannot consider her arguments regarding
the tax assessment on her property or her conversations with
Tax Ease as neither of these issues are set forth in the
record before us.
6} We do note that Civ.R. 55(B) states that "if
a judgment by default has been entered, the court may set it
aside in accordance with Rule 60(B)." "To prevail
on a motion brought under Civ.R. 60(B), the movant must
demonstrate that: (1) the party has a meritorious defense or
claim to present if relief is granted; (2) the party is
entitled to relief under one of the grounds stated in Civ.R.
60(B)(1) through (5); and (3) the motion is made within a
reasonable time, and, where the grounds of relief are Civ.R.
60(B)(1), (2) or (3), not more than one year after the
judgment, order or proceeding was entered or taken."
GTE Automatic Elec., Inc. v. ARC Industries, Inc.,
47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of
the syllabus. A year has not yet elapsed from the time that
the default judgment was entered against Jones. Therefore, if
she believes that grounds exist for setting aside the default
judgment, she may file a motion with the trial court, setting
forth reasons why the default judgment should be set aside.
We express no opinion on the merits of such a motion.
7} We conclude that, on this record, the trial court
did not abuse its discretion in granting the motion for
default judgment. ...