[Cite as LSF6 Mercury Reo Invests. v. Garrabrant, 2012-Ohio-4883.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

LSF6 MERCURY REO INVESTMENTS 

 Plaintiff-Appellee 

-vsRICK L. GARRABRANT 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P.J. 

Hon. William B. Hoffman, J. 

Hon. Sheila G. Farmer, J. 

Case No. 11CAE040037 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of 

Common Pleas, Case No. 09CVE121780 

JUDGMENT: Dismissed 

DATE OF JUDGMENT ENTRY: October 12, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

AMY CARR JOHN SHERROD 

4805 Montgomery Road, Ste. 320 2130 Arlington Avenue 

Cincinnati, Ohio 45212 Columbus, Ohio 43221 
Delaware County, Case No. 11CAE040037 2

Hoffman, J. 

{¶1} Defendant-appellant Rick Garrabrant appeals the April 15, 2011 Judgment 

Entry entered by the Delaware County Court of Common Pleas, which denied his Civ. 

R. 60(B) motion for relief from judgment. Plaintiff-appellee is LSF6 Mercury Reo 

Investments. 

STATEMENT OF THE CASE1

{¶2} On December 9, 2009, Appellee filed a Complaint for Foreclosure against 

Appellant. Appellant was personally served on or about December 23, 2009. Appellant 

filed a Motion for Extension of Time to Answer or Otherwise Plead in Order to Mediate 

with the Plaintiff/Lender, which the trial court granted. The court-appointed mediator 

filed a report on July 21, 2010, advising the trial court the mediation had been 

unsuccessful. The trial court issued a scheduling entry, instructing Appellant to file his 

Answer no later than August 9, 2010. Rather than file his Answer on the assigned date, 

Appellant filed a motion to dismiss, which the trial court denied on October 26, 2010. 

Appellant never filed an Answer in this matter. 

{¶3} On November 17, 2010, Appellee filed a motion for default judgment. The 

trial court scheduled an oral hearing on the motion before the magistrate on December 

16, 2010. Appellant failed to appear at the hearing. The magistrate filed her decision 

granting default judgment in favor of Appellee on December 17, 2010. The trial court 

approved and adopted the magistrate’s decision on the same day. The trial court 

issued a Final Judgment Entry on December 21, 2010. Appellant did not file an appeal 

from this judgment entry. 

 

1

 A Statement of the Facts is not necessary for our disposition of this Appeal. 
Delaware County, Case No. 11CAE040037 3

{¶4} A Sheriff’s Sale was conducted on February 16, 2011, and the property 

was sold for $116,580. The trial court confirmed the sale and ordered distribution via 

Judgment Entry filed March 10, 2011. 

{¶5} On April 4, 2011, Appellant filed a Motion for Relief from Judgment 

Pursuant to Civ. R. 60(B), alleging, as his meritorious defense, Appellee’s lack of 

standing. The trial court denied the motion via Judgment Entry filed April 15, 2011. 

Appellant filed a timely Notice of Appeal to this Court. 

{¶6} The appeal was stayed upon Appellant’s filing a petition in bankruptcy. 

Via Order filed April 19, 2012, this Court reinstated the case to the active docket. 

{¶7} It is from the April 15, 2011 Judgment Entry Appellant appeals, assigning 

as error: 

{¶8} “I. THE TRIAL COURT ERRED IN GRANTING APPELLE’S MOTION 

FOR DEFAULT JUDGMENT BECAUSE APPELLANT HAD ‘APPEARED’ IN THE 

ACTION IN ACCORDANCE WITH CIV.R. 55. 

{¶9} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION 

FOR RELIEF FROM JUDGMENT PURSUANT TO CIV.R. 60(B).” 

II 

{¶10} For ease of discussion, we shall begin by addressing Appellant’s second 

assignment of error first. 

{¶11} The decision to grant or deny a motion for relief from judgment pursuant to 

Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed 

absent an abuse of the discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172. An abuse 

of discretion is more than an error of judgment; it means that the trial court was 
Delaware County, Case No. 11CAE040037 4

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 

5 Ohio St.3d 217. An abuse of discretion demonstrates “perversity of will, passion, 

prejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd. (1993), 66 Ohio 

St.3d 619. When applying the abuse of discretion standard, this Court may not 

substitute its judgment for that of the trial court. Id.

{¶12} Civ.R. 60(B) states, in relevant part: 

 “On motion and upon such terms as are just, the court may relieve 

a party or his legal representative from a final judgment, order or 

proceeding for the following reasons: (1) mistake, inadvertence, surprise 

or excusable neglect; (2) newly discovered evidence which by due 

diligence could not have been discovered in time to move for a new trial 

under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or 

extrinsic), misrepresentation or other misconduct of an adverse party; (4) 

the judgment has been satisfied, released or discharged, or a prior 

judgment upon which it is based has been reversed or otherwise vacated, 

or it is no longer equitable that the judgment should have prospective 

application; or (5) any other reason justifying relief from the judgment. The 

motion shall be made within a reasonable time, and for reasons (1), (2) 

and (3) not more than one year after the judgment, order or proceeding 

was entered or taken.” 

{¶13} A party seeking relief from a default judgment pursuant to Civ.R. 60(B) 

must show (1) the existence of a meritorious defense, (2) entitlement to relief under one 

of the grounds set forth in the rule, and (3) that the motion is timely filed. See GTE 
Delaware County, Case No. 11CAE040037 5

Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 

113; Blasco v. Mislik (1982), 69 Ohio St.2d 684, 433 N.E.2d 612. 

{¶14} The December 21, 2010 Final Judgment Entry constituted a final decision 

on the merits. Appellant's remedy was to appeal that decision. Appellant did not do so. 

Rather, Appellant subsequently filed a Civ. R. 60(B) motion for relief from judgment. 

{¶15} Civ.R. 60(B) was intended to provide relief from a final judgment in 

specific, enumerated situations and cannot be used as a substitute for a direct, timely 

appeal. See Doe v. Trumbull County Children Services Board (1986), 28 Ohio St.3d 

128, 502 N.E.2d 605, at paragraph two of the syllabus. “If a party raises the same 

question in a Civ.R. 60(B) motion as [it] could have raised on a direct appeal, [that party] 

could get an indirect extension of time for appeal by appealing the denial of the Civ.R. 

60(B) motion.” Newell v. White, Pickaway App. No. 05CA27, 2006–Ohio–637, at ¶ 15, 

citing Parke–Chapley Construction Co. v. Cherrington (C.A.7, 1989), 865 F.2d 907, 915. 

Thus, “[w]hen a Civ.R. 60(B) motion is used as a substitute for a timely appeal, and 

when the denial of that motion is subsequently appealed, the proper response is the 

dismissal of the appeal.” Garrett v. Gortz, Cuyahoga App. No. 90625, 2008–Ohio–4369, 

at ¶ 14, citing State ex rel. Richard v. Cuyahoga Cty. Commrs., 89 Ohio St.3d 205, 729 

N.E.2d 755, 2000–Ohio–135. See, also, Elliott v. Smead Mfg. Co., Hocking App. Nos. 

08CA13 & 08AP13, 2009–Ohio–3754, at ¶ 12–13. 

{¶16} Accordingly, we reject Appellant’s second assignment of error and dismiss 

his appeal. 
Delaware County, Case No. 11CAE040037 6

I 

{¶17} In light of our disposition of Appellant’s second assignment of error, we 

need not address Appellant’s first assignment of error. 

By: Hoffman, J. 

Gwin, P.J. and 

Farmer, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin _____________________

 HON. W. SCOTT GWIN 

 s/ Sheila G. Farmer __________________

 HON. SHEILA G. FARMER 

 
Delaware County, Case No. 11CAE040037 7

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

LSF6 MERCURY REO INVESTMENTS : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

RICK L. GARRABRANT : 

 : 

 Defendant-Appellant : Case No. 11CAE040037 

 For the reason stated in our accompanying Opinion, this appeal is ordered 

dismissed. Costs to Appellant. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin _____________________

 HON. W. SCOTT GWIN 

 s/ Sheila G. Farmer __________________

 HON. SHEILA G. FARMER