Opinion
No. 107502
04-18-2019
STATE OF OHIO PLAINTIFF-APPELLEE v. JAMES L. WAVER DEFENDANT-APPELLANT
FOR APPELLANT James L. Waver, pro se Inmate No. A340516 Grafton Correctional Institution 2500 South Avon Belden Road Grafton, Ohio 44044 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Tasha Forchione Diane Smilanick Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-97-351032-ZA BEFORE: Celebrezze, P.J., Sheehan, J., and Headen, J. FOR APPELLANT James L. Waver, pro se
Inmate No. A340516
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
BY: Tasha Forchione
Diane Smilanick
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, James Waver ("appellant"), brings the instant appeal challenging the trial court's judgment denying his Civ.R. 60(B) motion for relief from judgment. Specifically, appellant argues that the trial court erred by denying his motion because he was entitled to relief pursuant to Civ.R. 60(B)(5). After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} In Cuyahoga C.P. No. CR-97-351032-ZA, following a jury trial, appellant was convicted of two counts of rape, both with sexually violent predator specifications, and one count of felonious assault, with a sexual motivation specification. In January 1998, the trial court sentenced appellant to a prison term of ten years to life on both rape counts and a prison term of eight years on the felonious assault count. The trial court ordered all three counts to run consecutively.
{¶3} In February 1998, appellant filed a direct appeal challenging the trial court's judgment. State v. Waver, 8th Dist. Cuyahoga No. 73976, 1999 Ohio App. LEXIS 3860 (Aug. 19, 1999). This court affirmed appellant's convictions but remanded the matter to the trial court for resentencing. Id. at 27.
{¶4} On September 16, 1999, the trial court resentenced appellant to a prison term of ten years on both rape counts and a prison term of eight years on the felonious assault count with a maximum prison term of life imprisonment. The court ordered the counts to run consecutively.
{¶5} On October 14, 1999, appellant filed an application, pursuant to App.R. 26(B), to reopen his appeal. This court denied appellant's application to reopen the appeal on August 28, 2000. State v. Waver, 8th Dist. Cuyahoga No. 73976, 2000 Ohio App. LEXIS 3921 (Aug. 28, 2000). Thereafter, appellant sought relief in the Ohio Supreme Court. The Ohio Supreme Court denied appellant's motion for leave to file a delayed appeal and dismissed the matter. State v. Waver, 106 Ohio St.3d 1408, 2005-Ohio-3154, 830 N.E.2d 342.
{¶6} On April 14, 2016, appellant filed an application for DNA testing. Therein, he requested DNA testing of the following items: (1) black pants collected at the crime scene that contained two blood stains on the pant leg; (2) a "ratchet tool" that had been used to "physically and sexually assault the victim"; and (3) the rape kit.
{¶7} On May 6, 2016, the state filed a motion for an extension of time to respond to appellant's application. The state requested a 30-day extension until June 6, 2016.
{¶8} The trial court granted the state's motion for an extension on May 9, 2016; the trial court's May 9, 2016 journal entry, which was journalized on May 11, 2016, provided, in relevant part, "motion for extension of time to file response to defendant's application for DNA testing is granted. Clerk ordered to send a copy of this order to [defendant.]" The trial court issued a second journal entry on May 11, 2016, which provided, "[j]ournal entry sent by ordinary mail to Deft."
{¶9} On June 9, 2016, the state filed a second motion for an extension of time to respond to appellant's application. Therein, the state requested an additional 30-day extension until July 6, 2016. The record reflects that the trial court did not rule on this motion.
{¶10} On July 6, 2016, the state filed (1) a brief in opposition to appellant's application, and (2) the prosecuting attorney's report pursuant to R.C. 2953.75. In its brief in opposition, the state asserted that the victim's rape kit had been submitted to the Ohio Bureau of Criminal Investigation ("BCI") for testing on August 28, 2013, and the test results were received on February 13, 2014. The test results indicated that the vaginal and anal swabs from the rape kit were negative for acid phosphatase, a component of semen. The state attached the BCI's laboratory results in support of its brief in opposition. The rape kit had originally been tested in May 1997.
{¶11} The state argued that a prior definitive DNA test had been conducted on the victim's rape kit, initially in 1997, and a second time, using more advanced technology, in 2013. The testing results were negative for sperm on both the vaginal and oral swabs. As a result, the state asserted that further DNA testing of the rape kit would not be outcome determinative.
{¶12} The state further maintained that although the victim's black pants and the ratchet tool had been collected at the crime scene, these items do not substantiate appellant's claims. The items had been tested in 1997, and the pants tested positive for human blood stains, and the ratchet tool tested negative for both semen and blood. Accordingly, the state argued that any further DNA testing of the pants or the tool would not be outcome determinative.
{¶13} On August 1, 2016, appellant filed a motion for default judgment, which was titled, "Motion for default judgment pursuant to prosecuting attorney brief in opposition to inmates application for DNA testing." Therein, appellant alleged that the state (1) failed to file its brief in opposition on or before the June 6, 2016 deadline set forth in the trial court's May 11, 2016 journal entry, and (2) failed to comply with the requirements set forth in R.C. 2953.73(C). Accordingly, appellant argued that he was entitled to default judgment and that his application for DNA testing should be granted. The trial court denied appellant's motion for default judgment on October 31, 2016.
{¶14} On May 12, 2017, appellant filed a motion to proceed to judgment on the application for DNA testing. Therein, he asserted that his application for DNA testing "remain[ed] unopposed by the State" and requested the court to proceed to judgment on his application. Before the trial court ruled on appellant's motion to proceed to judgment, appellant filed three motions on July 20, 2017.
{¶15} First, appellant filed a motion for leave to amend/supplement his April 14, 2016 application for DNA testing. Appellant sought to amend/supplement his application pursuant to Civ.R. 15(A) and 57(B), and in accordance with State v. Noling, Portage C.P. No. 1995-CR-00220, 2014 Ohio Misc. LEXIS 23714 (June 27, 2014).
{¶16} Second, appellant filed a supplemental application for DNA testing. Therein, he requested DNA testing of the following: "all available evidence collected at the crime scene, namely, fingernail scrapings, metal ratchet, blood recovered from any item, and all evidence in the rape kit." Furthermore, in support of his motion to amend/supplement his application for DNA testing, appellant alleged that the "analytical detail" of serologist Joseph Serowik, who had been assigned to his case in 1997, was "known for 'scientific fraud[.]'" Finally, appellant appeared to allege that the fingernail scrapings in the victim's rape kit had not been examined or tested.
{¶17} Third, appellant filed a "courtesy copy" of excerpts from the transcript from his 1998 trial.
{¶18} On July 27, 2017, the trial court denied appellant's application for DNA testing. The trial court's judgment entry, which was journalized on July 31, 2017, provided, "motion for DNA testing is denied. It is both unnecessary and irrelevant to the violent acts committed." Subsequently, on August 2, 2017, the trial court denied appellant's motion for leave to amend/supplement his application for DNA testing.
{¶19} On December 27, 2017, appellant filed a motion to proceed with judgment on his motion for leave to amend/supplement. Therein, he asserted that his first application for DNA testing, filed on April 14, 2016, remained "unopposed by the Court."
{¶20} On January 2, 2018, the trial court denied appellant's motion to proceed with judgment. The trial court's journal entry provided, in its entirety, "Denied as moot. The court has already ruled on the underlying motion."
{¶21} On July 2, 2018, appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B)(5) and requested a hearing. Therein, he asserted that he was entitled to relief from judgment "regarding Civil Rule 58(B)[.]"
{¶22} On July 6, 2018, the trial court denied appellant's motion for relief from judgment without holding a hearing. The trial court's judgment was journalized on July 9, 2018.
{¶23} It is from this judgment that appellant filed the instant appeal on August 2, 2018. He assigns one error for review:
I. The trial court erred in denying [appellant's] Civil Rule 60(B)(5) motion for relief from judgment pursuant to the court [sic] failure to comply with Civil Rule 58(A)-(B).
II. Law and Analysis
{¶24} Appellant appeals from the trial court's July 9, 2018 judgment denying his Civ.R. 60(B) motion for relief from judgment. Appellant's notice of appeal does not appeal from the trial court's July 31, 2017 judgment denying his application for DNA testing.
{¶25} In his sole assignment of error, appellant argues that the trial court erred by denying his motion for relief from judgment.
A. Standard of Review
{¶26} In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the movant must demonstrate (1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the timeliness of the motion. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976). If any of the three requirements are not met, the motion should be denied. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); Svoboda v. Brunswick, 6 Ohio St.3d 348, 351, 453 N.E.2d 648 (1983).
{¶27} This court reviews a trial court's ruling on a Civ.R. 60(B) motion for relief from judgment under an abuse of discretion standard. Rose Chevrolet at id. An abuse of discretion occurs when the court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
B. Relief From Judgment
{¶28} In his motion for relief from judgment, appellant argued that he was entitled to relief under the catchall provision, Civ.R. 60(B)(5), which provides that the trial court may grant relief for any reason justifying relief from the judgment. Appellant's motion pertained to the following three judgments issued by the trial court: (1) the trial court's July 27, 2017 judgment, journalized on July 31, 2017, denying his application for DNA testing, (2) the trial court's August 2, 2017 judgment denying his motion for leave to amend/supplement the application for DNA testing, and (3) the trial court's October 31, 2016 judgment, journalized on November 2, 2016, denying his motion for default judgment. Specifically, in regards to all three rulings, appellant asserted that the trial court did not comply with Civ.R. 58(B), he did not receive service of the trial court's judgments, and as a result, he was denied his right to file an appeal because the 30-day time limit under App.R. 4 expired.
{¶29} Appellant's application for DNA testing was a collateral attack on his criminal convictions. Accordingly, appellant's application is subject to the rules of civil procedure. See State v. Harris, 8th Dist. Cuyahoga No. 94186, 2010-Ohio-3617, ¶ 7. Civ.R. 58, governing entry of judgment, provides, in relevant part,
(A) Preparation; Entry; Effect; Approval.
(1) Subject to the provisions of Rule 54(B), upon a general verdict of a jury, upon a decision announced, or upon the determination of a periodic payment plan, the court shall promptly cause the judgment to be prepared and, the court having signed it, the clerk shall thereupon enter it upon the journal. A judgment is effective only when entered by the clerk upon the journal.
(2) Approval of a judgment entry by counsel or a party indicates that the entry correctly sets forth the verdict, decision, or determination of the court and does not waive any objection or assignment of error for appeal."[I]f notice is not served or noted on the docket, the time for appeal does not begin to run." Harris at ¶ 7, citing In re Anderson, 92 Ohio St.3d 63, 67, 748 N.E.2d 67 (2001); Agee v. Cty. of Cuyahoga, 8th Dist. Cuyahoga No. 103464, 2016-Ohio-2728, ¶ 4 ("Pursuant to App.R. 4(A)(3), in a civil case, if the clerk does not complete service within the three-day period prescribed in Civ.R. 58(B), then the 30-day period will begin to run on the date when the clerk actually completes service.").
(B) Notice of filing. When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete. The failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided in App.R. 4(A).
{¶30} The trial court's July 31, 2017 judgment denying appellant's application for DNA testing is a final appealable order. R.C. 2953.73(E); see State v. Montgomery, 8th Dist. Cuyahoga No. 97143, 2012-Ohio-1640, ¶ 13. App.R. 4(A) provides that "a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry." Compliance with App.R. 4(A) is a jurisdictional requirement. Accordingly, this court does not have jurisdiction to entertain an appeal in which a notice of appeal is not timely filed. Wells Fargo Bank, N.A. v. Fields, 2015-Ohio-4580, 48 N.E.3d 971, ¶ 14 (8th Dist.); Bounce Properties, L.L.C. v. Rand, 8th Dist. Cuyahoga No. 92691, 2010-Ohio-511, ¶ 6.
{¶31} In the instant matter, as noted above, appellant asserted that he was never served with notice of the trial court's judgments. After reviewing the record, we agree.
{¶32} The trial court's November 2, 2016, July 31, 2017, and August 2, 2017 judgment entries do not contain a notation directing the clerk to serve appellant and the state with notice of the judgment, nor does the trial court's docket indicate that the orders were, in fact, sent to appellant. On the other hand, the trial court's May 11, 2016 judgment entry granting the state's first request for an extension of time to respond to appellant's application for DNA testing does contain a notation ordering the clerk to send a copy of the judgment entry to appellant. Furthermore, a May 11, 2016 docket entry indicates that the trial court's order was sent to appellant by ordinary mail.
{¶33} In his motion for relief from judgment, appellant appeared to argue that his Civ.R. 60(B) motion, rather than an appeal to this court, was the proper procedure for resolving the improper service issue. We disagree.
{¶34} We begin by recognizing that the Ohio Supreme Court and other appellate courts in the state, including the Eighth District, have held that a party may attack a judgment on the basis that he or she did not receive notice of the judgment through a Civ.R. 60(B) motion. In State ex rel. Smith v. Fuerst, 8th Dist. Cuyahoga No. 77325, 2000 Ohio App. LEXIS 468 (Feb. 10, 2000), relator filed a mandamus action against the clerk of courts in which he sought to have the common pleas court order the clerk to re-serve notice of the court's judgment denying his motion for postconviction relief that he did not receive. This court recognized that the clerk complied with its duty to serve notice. Relator submitted evidence indicating that he may not have received notice of the trial court's judgment. This court concluded that relator's evidence did not demonstrate that the clerk failed to comply with its duty to issue notice to relator. Finally, this court concluded that relator was not entitled to a writ of mandamus: "Relator has an adequate remedy through the use of Civ.R. 60(B)(5) to raise the issue of failing to receive notice of a final judgment which prevented a timely appeal." (Emphasis added.) Id. at 4.
{¶35} The Ohio Supreme Court affirmed this court's judgment, concluding that Civ.R. 60(B) is a proper avenue to attack a judgment when the party claims that he or she did not receive notice. State ex rel. Smith v. Fuerst, 89 Ohio St.3d 456, 457, 732 N.E.2d 983 (2000). The court went on to explain that relator "had adequate remedies at law by a Civ.R. 60(B) motion for relief from judgment or appeal to raise his claim that he was entitled to additional time to perfect his appeal from the October 17, 1996 judgment [denying relator's motion for postconviction relief]." (Emphasis added.) Id. at 457.
{¶36} In Defini v. Broadview Hts., 76 Ohio App.3d 209, 601 N.E.2d 199 (8th Dist.1991), this court held that the trial court properly granted the appellant's Civ.R. 60(B) motion for relief from judgment "to allow appellant sufficient time to appeal[.]" (Emphasis added.) Id. at 214. However, this court explained that appellant did not need to file a Civ.R. 60(B) motion in order to protect and/or exercise his right to appeal the trial court's judgment:
on the authority of [Atkinson v. Grumman Ohio Corp., 37 Ohio St.3d 80, 523 N.E.2d 851 (1988)], the interest of judicial economy and on the authority of App.R. 4(A), it was not necessary to file a Civ.R. 60(B) motion. Appellant could have filed his notice of appeal within thirty days from the date the notice of the trial court's judgment was served on him.Id. Accordingly, this court concluded that appellant did not need to invoke Civ.R. 60(B) to exercise his right to appeal the trial court's judgment.
{¶37} In Frazier v. Cincinnati School of Med. Massage, 1st Dist. Hamilton No. C-060359, 2007-Ohio-2390, the First District addressed the issue of whether "a Civ.R. 60(B) motion for relief from judgment is an appropriate device when the clerk has not served notice of a court's entry." Id. at ¶ 19. The court, citing In re Anderson, 92 Ohio St.3d 63, 748 N.E.2d 67, acknowledged that the Ohio Supreme Court "has suggested that a Civ.R. 60(B) motion is an adequate remedy at law to request an additional 30 days to perfect an appeal when a party claims not to have received notice." (Emphasis added.) Frazier at id. The court went on to conclude, however, that, when a trial court fails to serve a party with notice of its judgment, as required by Civ.R. 58(B), a Civ.R. 60(B) motion "is a futile and unnecessary act[.]" Id. The court explained,
If the clerk has failed to serve a party with notice, then the 30 days to appeal cannot beg[i]n to run. This is what makes the Civ.R. 60(B) motion ineffective — if the time to appeal has not begun to run, why waste judicial resources on a motion that isn't necessary? The party simply needs to file a notice of appeal.Id. at ¶ 23. Finally, the court recognized that a Civ.R. 60(B) motion would be the proper remedy for a party that is neither notified of nor aware that litigation has commenced, and only learns of a trial court's judgment after the fact. Id. at ¶ 24.
{¶38} In the instant matter, after reviewing the record, we find that the proper remedy for appellant to challenge the trial court's judgment is an appeal, not a Civ.R. 60(B) motion. The facts and circumstances of this case are similar to those in Harris, 8th Dist. Cuyahoga No. 94186, 2010-Ohio-3617.
{¶39} In Harris, the defendant-appellant filed a motion for relief from judgment in which he argued that he failed to file a timely appeal from the trial court's judgment denying his petition for postconviction relief because the trial court failed to properly notify him of the judgment. Id. at ¶ 5. On appeal, appellant "ask[ed] this court to order the trial court to vacate and reenter its order denying his petition for postconviction relief so that he can appeal now." Id. at ¶ 6. This court concluded that the 30-day time period under App.R. 4(A) had not expired, or even begun to run, because the trial court did not comply with Civ.R. 58(B):
[t]he judgment entry does not contain a notation directing the clerk to serve him and appellee with notice of the judgment. Therefore, the time for appeal never commenced pursuant to App.R. 4(A). Nothing precluded appellant — then or now — from filing a notice of appeal from the denial of his petition for postconviction relief despite the lack of notice.Id. at ¶ 9. This court went on to hold,
Under Civ.R. 60(B), a court may relieve a party from a final judgment for, e.g., mistake, inadvertence, surprise, or excusable neglect. Appellant here did not demonstrate that the judgment was the result of any mistake, inadvertence, surprise or excusable neglect. Rather, he sought to have the court reenter the judgment so that he might pursue a timely appeal. As noted above, appellant may timely appeal without reentering the judgment because the clerk has not noted on the docket that notice of the judgment was sent. Therefore, the court did not abuse its discretion by denying appellant's motion for relief from judgment.Id. at ¶ 10.
{¶40} In the instant matter, a review of appellant's motion for relief from judgment indicates that appellant's primary argument/concern was that the trial court's failure to comply with Civ.R. 58(B) denied him his right to file an appeal. As was the case in Harris, appellant did not argue or demonstrate that the trial court's judgments with respect to his application for DNA testing, motion for leave to amend/supplement his application, or his motion for default judgment were the result of mistake, inadvertence, surprise, or excusable neglect. Rather, appellant requested the trial court to reenter the judgments on his motions in order to enable him to exercise his right to file a timely appeal.
{¶41} Because the trial court failed to properly serve appellant with its judgment entries in compliance with Civ.R. 58(B), the 30-day time period during which appellant is required to file an appeal did not, and has not commenced. See Harris at ¶ 9. Accordingly, the relief that appellant requested in his Civ.R. 60(B) motion — that he be given an opportunity to file an appeal challenging the trial court's denial of his application for DNA testing — is still available to him. In fact, appellant acknowledged as much in his Civ.R. 60(B) motion. Specifically, appellant recognized that (1) pursuant to App.R. 4(A), a trial court's failure to perfect service under Civ.R. 58 tolls the time period for filing an appeal, and (2) because the trial court failed to comply with Civ.R. 58(B) and did not provide him with reasonable notice of its judgments, an appeal would be timely under App.R. 4(A). See motion for relief from judgment, p. 6. In order to obtain this relief, appellant simply needs to file a notice of appeal from the trial court's July 31, 2017 judgment denying his application for DNA testing.
{¶42} "The clear purpose of Civ.R. 58(B) is to prevent the party adversely affected by the order from losing the opportunity to file a timely appeal." MBA Realty v. Little G, Inc., 116 Ohio App.3d 334, 338, 688 N.E.2d 39 (8th Dist.1996), citing Atkinson, 37 Ohio St.3d 80, 523 N.E.2d 851. "[T]he proper mechanism for defendant-appellant to make his objections after the time for appeal had run would have been a motion for relief from judgment pursuant to Civ.R. 60[B](3)." (Emphasis added.) MBA Realty at 339.
{¶43} In the instant matter, based on the foregoing analysis, we find that appellant's remedy to challenge the trial court's judgment denying his application for DNA testing is an appeal, not a Civ.R. 60(B) motion. The time for filing an appeal has not run, appellant was not and is not prevented from filing a timely appeal, and he does not need additional time to perfect his appeal from the trial court's July 31, 2017 judgment. As noted above, the 30-day time period for filing an appeal has not expired because the trial court did not comply with Civ.R. 58(B) in serving notice of its judgment.
{¶44} Because appellant's notice of appeal appeals only from the trial court's July 9, 2018 judgment denying his Civ.R. 60(B) motion for relief from judgment, the sole issue before this court is whether the trial court abused its discretion in denying appellant's motion. Appellant did not designate the trial court's July 31, 2017 judgment denying his application for DNA testing in his notice of appeal, and thus, the propriety of that judgment is not properly before this court at this time. See App.R. 3(D).
{¶45} For all of the foregoing reasons, we find no basis upon which to conclude that the trial court abused its discretion in denying appellant's motion for relief from judgment. As noted above, appellant was required to demonstrate (1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the timeliness of the motion. GTE, 47 Ohio St.2d at 150-151, 351 N.E.2d 113. Appellant moved for relief from judgment under Civ.R. 60(B)(5) based on his assertion that he had not received notice of the trial court's judgment entries. Although the trial court's journal entries indicate that appellant was not served with notice in compliance with Civ.R. 58(B), appellant failed to satisfy the first prong of the GTE test — that he had a meritorious defense or claim to present if relief was granted. Rather, appellant argued that the trial court should reenter its judgments to enable him to file an appeal.
{¶46} Appellant can file an appeal without the trial court reentering its judgments because appellant was not served with notice in compliance with Civ.R. 58(B). See Harris, 8th Dist. Cuyahoga No. 94186, 2010-Ohio-3617, at ¶ 10. "It is axiomatic that '[a] party [may] not use a Civ.R. 60(B) motion as a substitute for a timely appeal.'" Crown Auto Sales, Inc. v. Copart of Connecticut, Inc., 8th Dist. Cuyahoga No. 104366, 2016-Ohio-7896, ¶ 8, quoting Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the syllabus. Because appellant failed to demonstrate that he was entitled to relief under Civ.R. 60(B)(5), the trial court's judgment denying his motion for relief from judgment was not unreasonable, arbitrary, or unconscionable. See Frazier, 1st Dist. Hamilton No. C-060359, 2007-Ohio-2390, at ¶ 43 (in order to avoid the "difficult" abuse of discretion standard applied to a trial court's ruling on a Civ.R. 60(B) motion, "a party who has not been served with the final judgment entry may simply appeal — because the time has not run[.]")
{¶47} Appellant's sole assignment of error is overruled.
{¶48} Judgment affirmed.
It is ordered that appellee recover of appellant 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 common pleas court 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. /s/_________
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE MICHELLE J. SHEEHAN, J., and
RAYMOND C. HEADEN, J., CONCUR