[Cite as Davis v. Johnson , 2021-Ohio-85.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Douglas C. Davis, et al. Court of Appeals No. L-19-1268 Appellees Trial Court No. CVF-18-19416

v. Douglas G. Johnson

Defendant DECISION AND JUDGMENT [David G. Johnson—Appellant] Decided: January 15, 2021

* * * * * David G. Johnson, pro se.

* * * * *

SINGER, J. {¶ 1} Appellant, David Johnson, appeals the judgment of the Toledo Mu nicipal Court, Housing Division, denying appellant’s motion for relief from the default judgment granted to appellees, Douglas and Irene Davis, on their “Compla int for Money on Land Contract.” For the reasons that follow, we reverse. I. Facts and Procedural Background2. {¶ 2} This litigation commenced on October 29, 2018, when appellees f iled their complaint for breach of performance of a land installment contr act for real property at 16 East Sylvania Avenue, Toledo, Ohio. The land installment co ntract, which was recorded on February 3, 2016, provided that appellees would sel l and convey the property to appellant for $18,800, payable in a down payment of $2,000, with the remaining balance to be paid in monthly installments of $350. The compla int alleged that the defendant failed to abide by the terms and conditions of the co ntract, and failed to make the required payments under the contract. The complaint prayed for a monetary judgment for the unpaid amount. {¶ 3} Relevant here, the caption of the complaint listed the defendan t as “Douglas G. Johnson.” However, in the body of the complaint, a s well as the recorded land installment contract, the defendant was identified as “Dav id G. Johnson.” {¶ 4} On October 31, 2018, service was attempted on “Douglas G. Johns on” by certified mail to an address in Deerfield, Michigan. That serv ice was returned “unclaimed.” Service was then sent to “Douglas G. Johnson” by ordinary mail to the same address in Deerfield, Michigan, on December 4, 2018. The ordinary mail envelope was not returned with an endorsement showing failure of deliver y. {¶ 5} Because the defendant never responded to the complaint, on June 25, 2019, appellees moved for default judgment. The caption for the moti on for default judgment named “David G. Johnson” as the defendant. Likewise, the capti on for the attached proposed judgment entry also named the defendant as “David G. J ohnson.” Appellees3. certified that they served the motion for default judgment on “ David G. Johnson” at the Deerfield, Michigan, address, a Toledo, Ohio, address, and by e lectronic mail to an unspecified address. {¶ 6} Notably, appellees never moved to amend the complaint pursuant to Civ.R. 15(C) to name “David G. Johnson” as the proper defendant

. {¶ 7} On July 11, 2019, the trial court signed and entered the defaul t judgment entry proposed by appellees, thereby entering judgment against “David G. Johnson.” Rather than awarding monetary damages to appellees as prayed fo r in the complaint, the default judgment entry terminated the land installment contract , and awarded immediate possession of 16 East Sylvania Avenue to appellees. A certifie d copy of the judgment entry was issued to “Douglas G. Johnson” on July 12, 2019. {¶ 8} On July 18, 2019, appellant filed a pro se “Emergency Ex Parte Motion to Vacate Default Judgment Pursuant to ORCP 60(B).” In his motion , appellant alleged that counsel for appellees deliberately and fraudulently sued him in the wrong name, and obtained a default judgment against a person who was not a part y. Appellant also alleged that the trial court lacked jurisdiction to foreclose the prope rty because he has paid off the contract. As proof, appellant provided his bank statements thr ough August 2018, purportedly showing that he made the $350 monthly payments. {¶ 9} Also attached to appellant’s motion was his affidavit in which he described that on June 14, 2018, appellees transferred the deed to 16 Eas t Sylvania Avenue to James Clark, Jr. A copy of that deed was recorded on June 26, 2018. On July 18, 2018,4. James Clark, Jr., transferred the property to his son, James M. Clark, III, via a quitclaim deed, which was recorded on the same day. On July 20, 2018, ap pellant, as the Trustee for the David G. Johnson II Family Trust dated November 11, 201 6, purchased the property at 16 East Sylvania Avenue from James M. Clark, III. The July 20, 2018 quitclaim deed was never recorded. {¶ 10} Appellant further alleged that on July 25, 2018, a fraudulent q uitclaim deed was executed purporting to transfer ownership of 16 East Sylvan ia Avenue from James M. Clark, III, to appellees. This deed was recorded on S eptember 5, 2018. Appellant attached an affidavit from James M. Clark, III, dated November 7, 2018, in which Clark states that he sold the property to appellant on Ju ly 20, 2018; that he did not sign the July 25, 2018 quitclaim deed; and that the July 25, 20 18 quitclaim deed is a forgery. {¶ 11} The trial court, on the same day that appellant’s emergency ex parte motion was filed, noted that appellant had not served the motion on ap pellees, and thus denied appellant’s request for an emergency ex parte hearing. The doc ket reflects that appellant subsequently served the motion on appellees on July 26, 2019. {¶ 12} On July 30, 2019, appellees requested mediation, which the tria l court granted on August 2, 2019. {¶ 13} Thereafter, on August 7, 2019, appellant filed an “Objection to Mediation Referral Demand for Hearing on Emergency Ex Parte Motion to Vac ate Default Judgment Pursuant to ORCP 60(B).” In his August 7, 2019 motion , appellant asserted5. that counsel for appellees fraudulently sued the wrong party, a nd that he was never served or notified of the action until after default judgment w as entered. Appellant further reiterated that he has paid off the property, and that counsel for appellees created a cloud in the title to the property through fraud. {¶ 14} Appellees responded to appellant’s August 7, 2019 motion. In t heir response, appellees explained that the deed recorded on June 26 , 2018, transferring the property from appellees to James Clark, Jr., was a mistake. Ac cording to appellees, James M. Clark, III, acknowledged the mistake, and on June 28, 2018, offered to sign a deed transferring the property back to appellees. That deed wa s finally executed on July 25, 2018, and appellees asserted that through August 2018, Clark III repeatedly acknowledged that he mailed the deed to appellees. Ultimately, the July 25, 2018 deed was received and recorded on September 5, 2018. {¶ 15} Beginning on September 8, 2018, appellees and counsel for appel lees began receiving emails and text messages from Clark III threate ning to file criminal charges for forging his initials on the July 25, 2018 deed. Ap pellees believe that they also received threatening texts and phone messages from appella nt, but using Clark III’s

name. {¶ 16} In their response, appellees also asserted that the transfer fr om Clark Jr. to Clark III, and then the sale from Clark III to appellant was al l part of a scam to swindle6. money from appellant. Furthermore, appellees argued that appel lant’s claim that he purchased the property from Clark III smacks of fraud. {¶ 17} On August 12, 2019, the trial court denied appellant’s objectio n to the mediation referral, and confirmed that mediation was to occur o n September 12, 2019. Appellant failed to appear at the mediation. {¶ 18} Thereafter, on October 10, 2019, the trial court entered a judg ment ordering that “the original judgment entry on July 8, 2019 is hereby ado pted by this court. [Appellees] granted immediate possession of the property.” II. Assignments of Error {¶ 19} Appellant has timely appealed the trial court’s October 10, 201 9 judgment entry, and now asserts five assignments of error for our review : 1. The trial court erred when it entered a default judgment ag ainst David G. Johnson II without amending the complaint for the purp ose of suing the proper party. 2. The trial court erred when it assumed in personam jurisdict ion over the appellant who was an unnamed, unserved, and an out of state resident as against federal and state law rendering the judgmen t of default void ab initio because it was issued without jurisdiction to do so. 3. The trial court erred when it assumed in rem jurisdiction o ver the appellant’s property and ordered said property forfeited pursua nt to the judgment of default.7. 4. The trial court erred by failing to schedule a hearing on t he appellant’s emergency ex parte motion to vacate default judgmen t pursuant to ORCP 60(B). 5. The trial court erred in denying the appellant’s emergency ex parte motion to vacate default judgment pursuant to ORCP 60( B), to wit: A. The trial court sanctioned a fraud upon the court as contai ned in the motion which set out facts and law showing that attorney Yo der deliberately sued the wrong party for the purpose of submitting a fraudulent judgment of default. B. The trial court erred in failing to find the quit claim dee d recorded September 5, 2018, a fraud as demonstrated by affidavi ts and

direct evidence. C. The trial court erred when it failed to vacate the judgment of default and dismiss the matter with prejudice pursuant to the a ppellant’s emergency ex parte motion to vacate default judgment pursuant t o ORCP 60(B) because the trial court lacked jurisdiction pursuant to O RC 5313.07. III. Analysis {¶ 20} In his first assignment of error, appellant argues that the tri al court erred in entering a default judgment against him when the complaint name d “Douglas G.

Johnson” as the defendant.8. {¶ 21} Civ.R. 3(A) provides that “[a] civil action is commenced by fil ing a complaint with the court, if service is obtained within one yea r from such filing upon a named defendant, or upon an incorrectly named defendant whose n ame is later corrected pursuant to Civ.R. 15(C).” {¶ 22} In support of his position that an action was never properly co mmenced, appellant cites Patterson v. V & M Auto Body , 63 Ohio St.3d 573, 576, 589 N.E.2d 1306 (1992), in which the Ohio Supreme Court determined, “If a defen dant in a lawsuit is not an actual or legal entity, then any judgment rendered against t hat entity is void. * * * No action has been commenced pursuant to Civ.R. 3(A).” (Internal citations omitted). In

Patterson , the plaintiff sued V & M Auto Body, which was a fictitious na me used by Victor Searfoss acting as a sole proprietor. Despite being not ified on at least three occasions that the proper defendant was Searfoss, the plaintiff never moved to amend the complaint. Ultimately, while recognizing that “[t]he spirit of the Civil Rules is the resolution of cases upon their merits, not upon pleading defici encies,” the Ohio Supreme Court held that “since this lawsuit was brought against a nonen tity, it was never properly

commenced.” Id. at 577. {¶ 23} Here, in contrast, appellees did not sue a fictitious entity, b ut rather simply made a mistake by captioning the complaint with “Douglas G. Joh nson” as the defendant instead of “David G. Johnson.” In that way, this case is more akin to Owners Ins. Co. v.

Blakemore , 6th Dist. Lucas No. L-01-1342, 2002-Ohio-239. In Owners , the plaintiff filed a complaint against “Timothy Blakemore.” The defendant’s correct name, however,9. was “Timothy Blakeman.” The complaint and summons was served b y certified mail to “Timothy Blakemore” at an address in Maumee, Ohio, and were sig ned for by “Timothy Blakeman.” The defendant never filed an answer, and the plaint iff moved for default judgment against “Timothy Blakemore.” After the assessment hea ring, the trial court awarded the plaintiff $25,000 against “Timothy Blakeman.” This was the first time that “Timothy Blakeman” appeared in the record, and the plaintiff ne ver moved to amend the complaint. Blakeman moved to vacate the judgment, arguing that the trial court lacked personal jurisdiction over him. The trial court disagreed, rea soning that (1) service of the complaint was sent to the address listed in the relevant accide nt report; (2) Blakeman acknowledged the fact that he signed the return receipt for ser vice of process; (3) Blakeman admitted to being the driver of the vehicle involv ed in the accident; and (4) Blakeman and Blakemore are very similar names. {¶ 24} On appeal, this court reversed. This court relied on the Edito r’s Note to Civ.R. 3(A), which states, “‘if a plaintiff timely files his ac tion within the limitations period and perfects service within one year on the proper defen dant, but inadvertently misspells that defendant’s name in the complaint , the plaintiff may amend his complaint in order to set forth defendant’s correct name, and that amendm ent, pursuant to Civ.R. 15(C), will relate back to the time of the commencement of the action.’ (Emphasis added.)” Owners at *3. This court reasoned that the plaintiff failed to amend the complaint to correct the defendant’s misspelled name, and thus “this cause was never10. commenced against Timothy Blakeman, the court never acquired pe rsonal jurisdiction over Blakeman and, consequently, the default judgment was void ab initio .” Id. {¶ 25} Although akin to Owners , we find the present case to be meaningfully distinguishable. Notably, unlike Owners , the rest of the complaint, and all other filings,

referred to “David G. Johnson” as the defendant. Ohio courts h ave held that “[t]he caption of the case is not controlling. It is the substance of a pleading that determines its operative effect. * * * Courts can look to the body of the comp laint to determine the parties to the complaint.” (Internal citations omitted). Engelhart v. Bluett , 1st Dist. Hamilton No. C-160189, 2016-Ohio-7237, ¶ 12. See also Auer v. Paliath , 2d Dist. Montgomery No. 27004, 2016-Ohio-5353, ¶ 43; Briggs v. Wilcox , 8th Dist. Cuyahoga No. 98364, 2013-Ohio-1541, ¶ 37; Shelton v. LTC Mgmt. Servs. , 4th Dist. Highland No. 03CA10, 2004-Ohio-507, ¶ 7. Thus, while it certainly would hav e been a best practice for appellees to move to amend the complaint to change the capt ion, it is clear from the substance of the complaint that appellant was the properly name d defendant. Therefore, we hold that the action was commenced against appellant under C iv.R. 3(A). {¶ 26} Accordingly, appellant’s first assignment of error is not well- taken. {¶ 27} In his second and third assignments of error, appellant argues that he was not properly served, and therefore the trial court did not have jurisdiction over him. {¶ 28} Civ.R. 4.1(A)(1)(a) provides for service by certified mail. Ci v.R. 4.6(D) provides that where service by certified mail is returned uncla imed, and the serving party requests service by ordinary mail, “the clerk shall send by Uni ted States ordinary mail a11. copy of the summons and complaint or other document to be serve d to the defendant at the address set forth in the caption, or at the address set for th in written instructions furnished to the clerk.” “Service shall be deemed complete whe n the fact of mailing is entered of record, provided that the ordinary mail envelope is not returned by the postal authorities with an endorsement showing failure of delivery.” Id. {¶ 29} In this case, service was first attempted by certified mail, wh ich was returned unclaimed. Service was then sent by ordinary mail to “Douglas G. Johnson” at the Deerfield, Michigan address. The ordinary mail envelope wa s not returned. {¶ 30} “If the plaintiff follows the Civil Rules governing service of process, courts presume that service is proper unless the defendant rebuts this presumption with

sufficient evidence of nonservice.” Treasurer of Lucas Cty. v. Mt. Airy Invests. Ltd. , 6th Dist. Lucas No. L-18-1254, 2019-Ohio-3932, ¶ 15, citing Cavalry Invests., LLC v. Clevenger , 6th Dist. Lucas No. L-05-1103, 2005-Ohio-7003, ¶ 10. “Before finding that an underlying judgment is void for lack of service, the trial c ourt must determine whether the defendant presented ‘sufficient evidence of nonservice’ to rebut the presumption of proper service.” Id. , quoting United Home Fed. v. Rhonehouse , 76 Ohio App.3d 115, 125, 601 N.E.2d 138 (6th Dist.1991). “The presumption of prope r service can be rebutted by ‘demonstrating a procedural flaw in the service: u se of the wrong address, receipt by someone who is not a proper person, or untimely mail ing or receipt.’” Id. , quoting Gaston v. Medina Cty. Bd. of Revision , 133 Ohio St.3d 18, 2012-Ohio-3872, 975 N.E.2d 941, ¶ 14.12. {¶ 31} Appellant claims that service was flawed because it was sent to “Douglas G. Johnson.” However, where service of process is att empted first by certified mail and then by ordinary mail, and defendant’s first name is m isidentified, service may be deemed completed where defendant’s surname and address are c orrect and the ordinary mail envelope was not returned. Bentz v. Carter , 55 Ohio App.3d 120, 122, 562 N.E.2d 925 (8th Dist.1988) (service on “Barbara A. Carter” inst ead of “Robert A. Carter” was proper where complaint identified correct surname and the d efendant’s true address); see also Advance Sign Co., Inc. v. Mak Motel, Inc. , 9th Dist. Lorain No. 91CA005041, 1991 WL 215010 (Oct. 16, 1991) (service proper when defendant s erved as “Bob Patel,” but his real name is “Bhupendra Patel” and complaint identified Patel as the party named in the action and Patel’s address was correct). {¶ 32} In this case, the defendant’s surname was correctly identified as Johnson. Further, the ordinary mail envelope containing the copy of the complaint and summons was not returned. Finally, the Deerfield, Michigan address was correct since appellant never denied that it was his address, and he actually received the default judgment at that address as evidenced by the fact that he attached to his emerge ncy ex parte motion to vacate a copy of the envelope that was sent to “Douglas A. John son.” Therefore, we hold that appellant was properly served, and the trial court had jur isdiction to enter the default judgment. {¶ 33} Accordingly, appellant’s second and third assignments of error are not

well-taken.13. {¶ 34} In his fourth and fifth assignments of error, appellant argues that the trial court erred in denying his Civ.R. 60(B) motion for relief from judgment, and that it erred in doing so without a hearing. We review the denial of a Civ.R . 60(B) motion for an

abuse of discretion. Griffey v. Rajan , 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). An

abuse of discretion connotes that the trial court’s attitude wa s unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶ 35} To prevail on a motion under Civ.R. 60(B), the movant must demo nstrate: “(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, 150-151, 351 N.E.2d 113 (1976). “These requ irements are independent and in the conjunctive; thus the test is not fulfil led if any one of the requirements is not met.” Strack v. Pelton , 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994). {¶ 36} “If the movant files a motion for relief from judgment and it c ontains allegations of operative facts which would warrant relief under Civil Rule 60(B), the trial court should grant a hearing to take evidence and verify these facts before it rules on the14. motion.” Coulson v. Coulson , 5 Ohio St.3d 12, 16, 448 N.E.2d 809 (1983), quoting

Adomeit v. Baltimore , 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th Dist.1974). {¶ 37} Here, because appellant has alleged operative facts that would warrant relief under Civ.R. 60(B), we hold that the trial court erred w hen it denied appellant’s motion without a hearing. {¶ 38} As to the first prong of the GTE test, appellant has alleged two meritorious defenses. The first is that he has paid the land installment c ontract. As evidence, appellant attached several years of his bank statements, many o f which show a payment of $350. The second defense is that appellees fraudulently obt ained title to the property in dispute. In support of this defense, appellant attached the affidavit of James M. Clark III, in which Clark avers that the July 25, 2018 deed transferr ing the property back to appellees was a forgery. Either of these, if true, would const itute a defense in part or in whole to the cause of action, and are therefore meritorious. See Parts Pro Automotive

Warehouse v. Summers , 2013-Ohio-4795, 4 N.E.3d 1054, ¶ 11 (8th Dist.) (“A defense i s meritorious if it is not a sham and when, if true, it states a defense in part or in whole to the cause of action set forth.”). {¶ 39} Turning to the second prong, appellant has alleged that counsel for appellees has committed a fraud upon the court, which would fal l under the catch-all category of Civ.R. 60(B)(5). See Caruso-Ciresi, Inc. v. Lohman , 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraph one of the syllabus (“Civ.R. 60(B )(5) is intended as a catch-all provision reflecting the inherent power of a court to relieve a person from the15. unjust operation of a judgment, but is not to be used as a subs titute for any of the other more specific provisions of Civ.R. 60(B).”). In addressing the difference between “fraud upon the court” under Civ.R. 60(B)(5) and “fraud” under Civ.R. 60(B)(3), the Ohio Supreme Court adopted the reasoning that: “‘Fraud upon the court’ should, we believe, embrace only that s pecies of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by the officers of the court so that the judicial m achinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Fraud, inter partes , without more, should not be a fraud upon the court, but redress should be left to a motion under 60(b)(3) or to the independent action.” 7 Moore’s Federal Prac tice (2 Ed.1971) 515, Paragraph 60.33.

Coulson at 15. {¶ 40} Specifically, appellant alleges two instances of fraud. The fi rst is that appellees fraudulently brought an action against the wrong part y for purposes of deception and ultimately obtaining a judgment against appellant . This would fall under fraud upon the court under Civ.R. 60(B)(5). But, as discussed above, appellees’ mistake was limited to the misnaming of appellant in the caption of the complaint. The rest of the complaint, and all other subsequent filings properly named appe llant as the defendant. Consequently, the action was properly commenced against appella nt as the defendant.16. Thus, on this point, appellant has not alleged facts that would constitute fraud upon the

court. {¶ 41} His second allegation, in contrast, alleges that appellees forg ed the deed transferring the property from James M. Clark, III back to them . Thus, appellant is alleging fraud between the parties, which would fall under Civ. R. 60(B)(3) (“fraud (whether heretofore denominated intrinsic or extrinsic), misrep resentation or other misconduct of an adverse party”). However, “the fraud, misrepr esentation, or other misconduct contemplated by Civ.R. 60(B)(3) refers to deceit or other unconscionable conduct committed by a party to obtain a judgment and does not refer to conduct that

would have been a defense to or claim in the case itself.” Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 13. In th is case, the allegation of a forged deed would have been a defense to appellees’ claim. I t is not the type of fraud that deceived appellant to obtain a judgment. Indeed, appellee s’ conduct in allegedly forging the deed did not in any way prevent appellant from defe nding against appellees’ claim as the affidavit of James M. Clark, III, that appellant r elies upon, was signed and notarized by Clark III on November 7, 2018, which was before ap pellant was even served with the complaint by ordinary mail. Thus, appellant has not a lleged facts that would entitle him to relief under Civ.R. 60(B)(3). See Kuchta at ¶ 14 (defendant’s allegation that bank committed fraud by falsely claiming to be the owner o f the note and mortgage when it filed the foreclosure action did not prevent defendant from appearing and17. presenting a full defense, and thus did not establish entitleme nt to relief under Civ.R. 60(B)(3)). {¶ 42} Alternatively, appellant argues in his brief that the trial cou rt lacked jurisdiction to foreclose on the property pursuant to R.C. 5313 .07, which provides that “If the vendee of a land installment contract * * * has paid toward the purchase price a total sum equal to or in excess of twenty per cent thereof, the vendo r may recover possession of his property only by use of a proceeding for foreclosure and judicial sale of the foreclosed property as provided in section 2323.07 of the Revis ed Code.” Initially, we note that R.C. 5313.07 is not a jurisdictional statute, but rat her is a limit on the remedies

available to the trial court in an action for breach of a land installment contract. Nevertheless, while appellant has framed his argument as being jurisdictional, we find

that it also raises the issue that the trial court awarded reli ef to appellees that it was not permitted to award, which would fall under the catchall provisi on of Civ.R. 60(B)(5). {¶ 43} Civ.R. 54(C) provides that “[a] judgment by default shall not b e different in kind from or exceed in amount that prayed for in the demand for judgment.” “[T]he limitations on default judgments in Civ.R. 54(C) protect defend ants from being subjected to unpled liability as a consequence of failing to answer a com plaint and * * * the primary purpose of the rule is to afford parties notice of pote ntial liability so they may

determine whether to defend a case.” Fors v. Beroske , 6th Dist. Fulton No. F-12-001, 2013-Ohio-1079, ¶ 25, citing Masny v. Vallo , 8th Dist. Cuyahoga No. 84983, 2005-Ohio2178, ¶ 18. “In our view, providing relief from such judgments under Civ.R. 60(B)(5)18. operates to promote the protections afforded under Civ.R. 54(C) and to present a means to relieve litigants from unjust operation of judgments violati ng the rule.” Id. Here, in their complaint, appellees prayed only for “judgment against th e Defendant, David G. Johnson, in an amount that will be proven at hearing, interest at a rate of 6% pursuant to the land installment contract as well at (sic) the costs of thi s action.” When they moved for default judgment, however, appellees sought—and the trial c ourt awarded— immediate possession of the property. Because the default judg ment award was different in kind from that prayed for in the complaint, we hold that app ellant has alleged operative facts that would entitle him to relief under Civ.R. 60(B)(5). {¶ 44} Finally, as to the third prong of the GTE test, we find that the motion for relief from judgment was filed timely within seven days of the default judgment. {¶ 45} Therefore, we find that appellant has alleged operative facts t hat, if proven true, would entitle him to relief under Civ.R. 60(B). Furtherm ore, we find that the trial court’s denial of appellant’s motion without a hearing was arbi trary in that at no point did the court attempt to address the merits of appellant’s motion, but instead appeared to summarily deny the motion because appellant did not participate in mediation. As a result, we hold that the trial court abused its discretion when it denied appellant’s motion for relief from judgment without a hearing. {¶ 46} Accordingly, appellant’s fourth and fifth assignments of error are welltaken.19. IV. Conclusion {¶ 47} Having found that the trial court committed prejudicial error t o appellant and that substantial justice has not been done, the judgment of the Toledo Municipal Court, Housing Division, is reversed and the October 10, 2019 j udgment is vacated. This matter is remanded to the trial court for a hearing on appellan t’s motion for relief from judgment and other further proceedings consistent with this dec ision. Appellees are ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment reversed and remanded.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _________________

______________ JUDGE Thomas J. Osowik, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.