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Apple v. Dimons6/27/2002
Judgment: REVERSED AND REMANDED
. Defendant-appellant James Rivalsky appeals from the order of the Common Pleas Court overruling his motion for relief from judgment pursuant to Civ.R. 60(B). For the reasons that follow, we reverse and remand.
. On or about July 5, 1996, plaintiff Patricia Apple was awarded a default judgment against Dimon's, Inc. in Cuyahoga County Court of Common Pleas Case No. 287693 in the amount of $80,000 plus interest. Dimon's, Inc. was an Ohio corporation. Dimon's, Inc. failed to file an answer or otherwise plead. On July 18, 1996, a certificate of judgment was filed as Judgment Lien JL029811 upon the property located at 11607 and 11609 Detroit Avenue, Cleveland, Ohio 44102 ("the property").
. On June 25, 1997, plaintiff filed an action in foreclosure against the property to recover on the default judgment. The State of Ohio Department of Taxation and defendant were also named as new party-defendants. Defendant timely filed an Answer.
. On November 10, 1998, plaintiff filed a motion for summary judgment. Defendant filed a brief in opposition stating that he owned the property, not Dimon's, Inc., and that he was not made a party to the original complaint. On June 18, 1998, the trial court granted plaintiff's motion for summary judgment without opinion. The matter was then referred to a magistrate. On June 30, 1999, the magistrate rendered a decision in favor of plaintiff, which was adopted by the trial court on July 29, 1999.
. On or about October 12, 1999, the property was sold at Sheriff's sale; however, the buyer defaulted and the case was reinstated on September 9, 2000. On October 27, 2000, the magistrate issued a Supplemental Decision and granted default judgment in plaintiff's favor.
. On December 6, 2000, defendant, represented by other counsel, filed objections to the Supplemental Decision and moved to vacate the original order granting summary judgment pursuant to Civ.R. 60(B). Affidavits attached to the motion set out the foregoing facts and showed that defendant, the equitable owner of the property, was not a party to the original personal injury complaint and was unaware that the deed had not been transferred to him when he purchased the property in 1979. Defendant also alleged that he was unable to contact his former counsel and was not given a forwarding address. Finally, defendant alleged that he was told by his insurance company, Utica First Insurance, that it had retained Ulmer and Berne to represent him in the matter. On March 12, 2001, the trial judge overruled defendant's objections and denied his motion to vacate without hearing or opinion. It is from that decision that defendant now appeals and raises one assignment of error:
. I. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-APPELLANT'S CIV.R. 60(B) MOTION TO VACATE WITHOUT A HEARING.
. In his sole assignment of error, defendant argues that the trial court erred in denying his motion for relief from judgment without first conducting an evidentiary hearing. Plaintiff maintains that the defendant was not entitled to a hearing because he did not meet two of the three prongs necessary for relief under Civ.R. 60(B). The issue here is whether the trial court erred in failing to conduct a hearing on the defendant's motion for relief from judgment.
. Civ.R. 60(B) provides in 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 hav
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