Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Jeffrey L. Kocian, for appellee.
Law, L.L.C., and John P. Malone, Jr., for appellant.
JOURNAL ENTRY AND OPINION
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
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 does not apply in this case and the
motion for relief from judgment is not a substitute for an
III. Plaintiffs did not perfect service of the complaint on
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
for Relief from Judgment
7} Pursuant to Civ.R. 60(B), a trial court has the authority