[Cite as First Internet Bank of Indiana v. Equine Transp. Acceptance Co., 2011-Ohio-5804.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

FIRST INTERNET BANK                                        JUDGES:
OF INDIANA,                                                Hon. William B. Hoffman, P.J.
                                                           Hon. John W. Wise, J.
        Plaintiff-Appellee,                                Hon. Patricia A. Delaney, J.

v.                                                         Case No. 2011CA00094

EQUINE TRANSPORTATION
ACCEPTANCE COMPANY ET AL.,                                 OPINION

        and

JONATHAN MAAS,

        Defendant-Appellant.



CHARACTER OF PROCEEDING:                              Appeal from the Stark County Court of
                                                      Common Pleas, Case No. 2010CV00003


JUDGMENT:                                             Affirmed


DATE OF JUDGMENT ENTRY:                               November 7, 2011


APPEARANCES:


For Plaintiff-Appellee                                For Defendant-Appellant


ROSEMARY TAFT MILBY                                   R. SCOT HARVEY
MATTHEW G. BURG                                       Fisher & Phillips LLP
Lakeside Place, Suite 200                             9150 South Hills Blvd., Suite 300
323 West Lakeside Avenue                              Cleveland, Ohio 44147-3506
Cleveland, Ohio 44113
Stark County, Case No. 2011CA00094                                                      2

Hoffman, P.J.


       {¶ 1} Defendant-appellant Jonathan Maas appeals the March 25, 2011

Judgment Entry entered by the Stark County Court of Common Pleas denying his Civil

Rule 60(B) motion for relief from judgment from a prior judgment entered in favor of

Plaintiff-appellee First Internet Bank of Indiana.

                                  STATEMENT OF THE CASE

       {¶ 2} On January 4, 2010, Appellee initiated the within action against Equine

Transportation Acceptance Company, LLC, an Ohio Limited Liability Company, of which

Appellant was the sole and managing member; Cross Country Capital, LLC; and

Appellant individually. The complaint included a claim of fraud against Appellant.

       {¶ 3} Appellant filed an answer to the complaint on April 7, 2010, denying the

allegations in the complaint, and asserting the complaint failed to state a claim upon

which relief could be granted and further asserting the complaint failed to plead fraud

with particularity as required by Ohio Civil Rule 9(B).

       {¶ 4} The trial court scheduled the case for trial on April 22, 2010. The parties

filed a joint motion for continuance on April 21, 2010. The trial court denied the motion.

However, via Judgment Entry of April 23, 2010, the trial court rescheduled the trial for

May 21, 2010.

       {¶ 5} According to the trial court’s docket, a “Statement of Record” was filed

with the Court on May 20, 2010.

       {¶ 6} On May 25, 2010, the trial court issued a Judgment Entry finding Appellant

personally liable to Appellee on the fraud claim, thereby rendering judgment against
Stark County, Case No. 2011CA00094                                                     3


Appellant in favor of Appellee in the amount of $210,673.10 plus attorney fees in the

amount of $40,000.

      {¶ 7} On August 19, 2010, Appellant filed for Chapter 7 Bankruptcy protection.

      {¶ 8} On February 25, 2011, Appellant filed a motion for relief from judgment

pursuant to Ohio Civil Rule 60(B).

      {¶ 9} Via Judgment Entry of March 25, 2011, the trial court denied Appellant’s

motion for relief from judgment.

      {¶ 10} Appellant now appeals, assigning as error:

      {¶ 11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE

MOTION OF DEFENDANT-APPELLANT JONATHAN MAAS FOR RELIEF FROM THE

TRIAL COURT’S JUDGMENT ENTRY ISSUED ON MAY 25, 2010.”

      {¶ 12} Civ.R. 60 Relief from Judgment or Order, provides

      {¶ 13} “ * * *

      {¶ 14} “(B) Mistakes; inadvertence; excusable neglect; newly discovered

evidence; fraud; etc.

      {¶ 15} “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
Stark County, Case No. 2011CA00094                                                       4


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. A motion under this subdivision (B) does not affect the finality of a judgment or

suspend its operation.

        {¶ 16} “The procedure for obtaining any relief from a judgment shall be by motion

as prescribed in these rules.”

        {¶ 17} To prevail on a motion to vacate a judgment pursuant to Civ. R. 60(B), the

movant must demonstrate that: (1) the party has a meritorious defense 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. GTE Automatic Electric Company, Inc. v. ARC Industries, Inc. (1976), 47

Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus.

        {¶ 18} Where timely relief is sought from a default judgment, and the movant has

a meritorious defense, doubt should be resolved in favor of the motion to set aside the

judgment so that cases may be decided on their merits. GTE Automatic, supra. at

paragraph three of the syllabus. The GTE Automatic factors are “independent and

conjunctive, not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986), Fairfield App. No. 12–

CA–86. “[F]ailing to meet one is fatal, for all three must be satisfied in order to gain

relief.” Id. at 5.

        {¶ 19} Our standard of review of a court's decision as to whether to grant a Civ.R.

60(B) motion is abuse of discretion. GTE at 148, 351 N.E.2d 113.
Stark County, Case No. 2011CA00094                                                        5


       {¶ 20} Civil Rule 60(B) relief is not a substitute for a direct appeal, and where an

issue is capable of being raised on direct appeal a 60(B) motion cannot be used a

substitute for an appeal and does not toll the time for filing the appeal. Key v. Mitchell

81 Ohio St.3d 89, 1998-Ohio-643; Bobardier Captial, Inc. v. W.W. Cycles, Inc. 155

Ohio App.3d 484, 2003-Ohio-6716; See, Vasko v. Vasko, 2005-Ohio-3188.

       {¶ 21} Appellant’s Civil Rule 60(B) motion asserts the complaint herein failed to

present the essential elements of a fraud claim, and his actions were not the result of

fraud. Appellant’s arguments are barred by the doctrine of res judicata as they were

capable of being raised on direct appeal, and Appellant cannot now substitute his Civil

Rule 60(B) motion for a direct appeal.

       {¶ 22} Appellant additionally claims he does “not recall” receiving notice of the

rescheduled trial date. However, the trial court docket indicates on April 23, 2010, via

Judgment Entry, the trial court issued an order rescheduling the date for trial; Appellant

was notified by both certified mail, which went unclaimed, and by ordinary mail. The

address to which the notice was sent was the same address as that listed in the original

complaint. We find the trial court did not abuse its discretion in finding Appellant has not

demonstrated excusable neglect, particularly when Appellant does not affirmatively aver

he did not receive notice.

       {¶ 23} Appellant did not file the Rule 60(B) motion for nine months after final

judgment, as he assumed the judgment would be discharged in his bankruptcy filing,

and upon learning otherwise, he filed the motion. Appellant asserts ignorance of the

law and excusable neglect as grounds for the 60(B) motion; however, the record does

not support such a finding.
Stark County, Case No. 2011CA00094                                                   6


      {¶ 24} For the reasons set forth above, we find the trial court did not abuse its

discretion in denying Appellant’s Civil Rule 60(B) motion for relief from judgment. The

March 25, 2011 Judgment Entry of the Stark County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur

                                           / William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ John W. Wise______________________
                                           HON. JOHN W. WISE


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY
Stark County, Case No. 2011CA00094                                               7


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


FIRST INTERNET BANK                      :
OF INDIANA,                              :
                                         :
       Plaintiff-Appellee,               :
                                         :
v.                                       :         JUDGMENT ENTRY
                                         :
EQUINE TRANSPORTATION                    :
ACCEPTANCE COMPANY ET AL.,               :
                                         :
       and                               :
                                         :
JONATHAN MAAS,                           :
                                         :
       Defendant-Appellant.              :         Case No. 2011CA00094



       For the reasons stated in our accompanying Opinion, the March 25, 2011

Judgment Entry entered by the Stark County Court of Common Pleas is affirmed. Costs

to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ John W. Wise _____________________
                                         HON. JOHN W. WISE


                                         s/ Patricia A. Delaney _________________
                                         HON. PATRICIA A. DELANEY
