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Antonyzyn v. Kelly

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 11, 2019

MICHAEL ANTONYZYN, ET AL., Plaintiffs-Appellees,
v.
KEVIN KELLY, ET AL., Defendants-Appellants.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-827623

          Jeffrey L. Kocian, for appellee.

          Malone Law, L.L.C., and John P. Malone, Jr., for appellant.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., JUDGE.

         {¶ 1} Defendant-appellant, Kevin Kelly ("Kelly"), appeals the trial court's denial of his motion for relief from judgment. Finding no merit to the appeal, we affirm.

         {¶ 2} In 1998, Kelly and Nicholas Pyrtko ("Pyrtko") entered into a land contract agreement for a two-family house located on Castle Avenue in Cleveland's Tremont neighborhood. Kelly and Pyrtko resided in side-by-side units on the property until Pyrtko died in 2010.

         {¶ 3} In 2013, Michael Antonyzyn ("Antonyzyn") purchased one-half of the real estate from Pyrtko's estate. Antonyzyn subsequently filed a foreclosure complaint in May 2014, alleging that Kelly owed $40, 435 on his portion of the land contract. Kelly did not file an answer or otherwise respond to the complaint.

         {¶ 4} In 2015, Anytonyzyn moved for summary judgment. The motion was unopposed and granted by decision of a magistrate. The trial court adopted the magistrate's decision in January 2016.[1]

         {¶ 5} Twenty months later, in September 2017, Kelly filed a motion for relief from judgment and for stay of execution and eviction, claiming he never received the complaint and did not know about the lawsuit until he received an eviction notice. The magistrate held a hearing and overruled Kelly's motion. Kelly filed objections to the magistrate's decision. In October 2018, the trial court overruled Kelly's objections and adopted the magistrate's findings. This appeal followed.

         {¶ 6} Kelly assigns five errors for review:

I. The trial court erred when it denied appellant's motion for relief because the judgment was void for lack of jurisdiction and it was abuse of discretion to find that plaintiff appellees had standing to commence the lawsuit.
II. The Supreme Court's holding in Kuchta[2] does not apply in this case and the motion for relief from judgment is not a substitute for an appeal.
III. Plaintiffs did not perfect service of the complaint on appellant.
IV. There is no proof or finding that appellant's rights under the terms of the land contract were extinguished under Ohio Revised Code section 5313.06.
V. The evidence submitted in support of summary judgment did not comply with Civil Rule 56(e) and it was error to grant summary judgment.

         Motion for Relief from Judgment

         {¶ 7} Pursuant to Civ.R. 60(B), a trial court has the authority to ...


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