Luszczynski v. Walters, Unpublished Decision (8-5-2004) , 2004 Ohio 4087 ( 2004 )

{¶ 17} I respectfully dissent. I would affirm the trial court's denial of Walters' Civ.R. 60(B) motion. The majority states that "Walters does offer an explanation for its delay in filing the 60(B) motion." However, Walters' explanation is not contained in the 60(B) motion, the issue before us on appeal.

{¶ 18} The instant case is analogous to Abrams v. AALIndustries, Cuyahoga App. No. 82831, 2003-Ohio-6179, in which AAL offered no facts in its motion explaining its delay in filing the motion. As this court stated in Abrams:

{¶ 19} "[W]e have consistently recognized that filing a Civ.R.60(B) motion for relief from judgment several months after theparty received actual notice of the judgment and absent anyexplanation for the delay is considered unreasonable. A.Packaging Serv. Co., Inc. v. Siml (Sept. 21, 2000), CuyahogaApp. No. 77708."

{¶ 20} Counsel for Walters admitted at oral argument that Walters was aware of the judgment in late June and that the 60(B) motion did not address timeliness. The authority Walters relied on in his 60(B) motion set forth a two-prong test to obtain relief from a judgment taken upon a cognovit note: (1) establish a meritorious defense, (2) in a timely application. Matson v.Marks (1972), 32 Ohio App.2d 319, 327; Society National Bankv. Val Halla Athletic Club Rec. Center (1989),63 Ohio App.3d 413, 418; Meyers v. McGuire (1992), 80 Ohio App.3d 644. Yet, Walters made no mention of timeliness or any explanation for his seven-month delay in his eight-page motion. Therefore, I would find no abuse of the trial court's discretion and I would affirm.

It is ordered that appellant recover of appellee his costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Dyke, P.J., concurs. Cooney, J., Dissents. (See dissenting opinion attached).