SLSC Holdings, L.L.C. v. George

[Cite as SLSC Holdings, L.L.C. v. George, 2014-Ohio-1049.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

SLSC HOLDINGS, LLC, : APPEAL NO. C-130468 TRIAL NO. A-0903986 Plaintiff-Appellant, :

vs. : O P I N I O N. SHAWN GEORGE, :

Defendant-Appellee. : Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Reversed Date of Judgment Entry on Appeal: March 21, 2014 Donnellon, Donnellon & Miller and Meghan Donnellon Hyden, for Plaintiff-Appellant, James J. Whitfield, for Defendant-Appellee. Please note: this case has been removed from the accelerated calendar.

OHIO FIRST DISTRICT COURT OF APPEALS

S YLVIA S IEVE H ENDON , Presiding Judge.

{¶1} Plaintiff-appellant SLSC Holdings, LLC, (“SLSC”) appeals the judgment of the Hamilton County Court of Common Pleas granting defendant-appellee Shawn George’s Civ.R. 60(B) motion to set aside the default judgment entered in favor of SLSC’s predecessor in interest, Schott, Inc., (“Schott”).

{¶2} In October 2009, Schott obtained a default judgment against George in the amount of $20,628.37 in its action upon a promissory note. Shortly thereafter, Schott initiated garnishment proceedings against George. George did not appeal.

{¶3} In October 2012, Schott assigned its rights and interest in the judgment to

SLSC.

{¶4} In February 2013, after SLSC had collected the entire amount owed by George on the judgment, the trial court terminated the garnishment of George’s earnings and entered a satisfaction of judgment.

{¶5} In April 2013, George filed a Civ.R. 60(B) motion to set aside the October 2009 default judgment. He alleged that the documentation supporting Schott’s claim had contained errors and inconsistencies that “may [have] amount[ed] to fraud” by Schott. Following a hearing, the trial court granted the motion pursuant to Civ.R. 60(B)(3), which allows a judgment to be set aside for “fraud * * *, misrepresentation, or other misconduct of an adverse party.”

{¶6} In a single assignment of error, SLSC argues that the trial court erred by granting George’s Civ.R. 60(B) motion to set aside the default judgment. We review a trial court’s Civ.R. 60(B) determination for an abuse of discretion. See State ex rel. Russo v. Deters, 80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997).

{¶7} To prevail on a Civ.R. 60(B) motion for relief from judgment, the movant must establish 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)

OHIO FIRST DISTRICT COURT OF APPEALS

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.

{¶8} In this case, George’s Civ.R. 60(B)(3) motion was filed more than three years after the default judgment, and thus well outside the one-year time limit set forth in Civ.R. 60(B). See, e.g., Kell v. Verderber, 1st Dist. Hamilton No. C-120665, 2013-Ohio-4223 (trial court did not err in denying a Civ.R. 60(B)(3) motion because it was filed more than one year after the final decree); Melton v. Melton, 1st Dist. Hamilton No. C-130123, 2013-Ohio-4790 (trial court did not abuse its discretion in denying a Civ.R. 60(B)(1) motion made more than two years after the judgment). Consequently, the trial court erred by granting George’s untimely Civ.R. 60(B)(3) motion.

{¶9} We sustain the assignment of error and reverse the trial court’s judgment.

Judgment reversed. DINKELACKER and DEWINE, JJ., concur. Please note:

The court has recorded its own entry on the date of the release of this opinion.