[Cite as State v. Williams, 2014-Ohio-3169.]




               IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO/WRIGHT STATE                               :
UNIVERSITY

        Plaintiff-Appellee                               :       C.A. CASE NO.         2013 CA 74

v.                                                       :       T.C. NO.     CVF1200211

BRIAN K. WILLIAMS                                        :        (Civil appeal from
                                                                   Municipal Court)
        Defendant-Appellant                              :

                                                         :

                                               ..........

                                               OPINION

                         Rendered on the          18th       day of         July       , 2014.

                                               ..........

CHARLES F. GEIDNER, Atty. Reg. No. 0023889 and BRENT E. RAMBO, Atty. Reg. No.
0076969, 15 W. Fourth Street, Suite 250, Dayton, Ohio 45402
      Attorneys for Plaintiff-Appellee

BRIAN K. WILLIAMS, P. O. Box 4931, Newark, Ohio 43058
     Defendant-Appellant

                                               ..........

FROELICH, P.J.

                 {¶ 1} Brian K. Williams appeals from a judgment of the Fairborn Municipal

Court, which denied his Civ.R. 60(B) motion to set aside a default judgment. For the
following reasons, the trial court’s judgment will be affirmed.

       {¶ 2}     On February 14, 2012, the State of Ohio brought an action in the municipal

court claiming that Williams owed $5,085.44 for goods and services rendered to him

through Wright State University. The exhibits attached to the complaint indicated that

Williams owed a principal balance of $2,688.77, interest in the amount of $667.62, and

collection costs of $1,729.05. Williams was served with the complaint on February 28, 2012,

as reflected by a United States Postal Service delivery confirmation card. Williams did not

respond to the complaint. Consequently, in April 2012, the State moved for a default

judgment. On April 12, 2012, the trial court granted the motion and awarded a default

judgment to the State in the amount of $5,085.44, with statutory interest.

       {¶ 3}     Williams appealed from the default judgment.          We affirmed the trial

court’s judgment, noting that Williams had failed to file an answer as required by Civ.R.

12(A)(1), that the State’s complaint clearly set forth the amount owed, and the amount was

supported with documentary evidence. Wright State Univ. v. Williams, 2d Dist. Greene No.

2012-CA-37, 2012-Ohio-5095. We commented that, “[i]f Williams believes that grounds

exist for setting aside the default judgment, he may be able to file a motion with the trial

court, setting forth reasons why the default judgment should be set aside.” Id. at ¶ 10. We

stated no opinion as to whether any such motion would have merit. Id.

       {¶ 4}     On April 11, 2013, Williams filed a “motion to set aside default judgment.”

 He stated that he did not answer the summons because he could not secure counsel to

represent him due to his lack of employment and funds to employ an attorney. He further

stated that he “was not educated enough to put forth an answer by himself because he had

not attended any civil law classes or was pursuing a law degree.” Williams indicated that
                                                                                           3

he had a valid defense to the university’s claim, because he did not owe the full amount

claimed by the university. Williams provided documentation to support his assertion that

he owed a lesser principal balance.

          {¶ 5}   The matter was referred to a magistrate, who scheduled a hearing for May

21, 2013. Williams did not appear for the hearing. On May 24, 2013, the magistrate ruled

that Williams’s motion alleged a meritorious defense, but his reasons for failing to respond

to the complaint did not constitute excusable neglect. The magistrate noted that pro se

litigants are held to the same standards as other litigants. The trial court adopted the

magistrate’s decision.

          {¶ 6}   On June 3, 2013, Williams filed a “motion to vacate judgment and request

an evidentiary hearing,” which the trial court construed as objections to the magistrate’s

ruling. Williams again emphasized that he did not owe the principal balance claimed by

Wright State University, and he asserted that he was misled by the university’s financial aid

counselor about what aid would be awarded to him for the spring quarter of 2004. In

response, Wright State University argued that Williams’s motion was not timely and failed

to establish excusable neglect. The trial court ordered Williams to have a transcript of the

May hearing transcribed, but no transcript was filed.        The trial court scheduled an

evidentiary hearing for July 30, 2013. The record reflects that both parties appeared for the

July 30 hearing, but a transcript of that hearing was not ordered and is also not part of the

record.

          {¶ 7}   On October 31, 2013, the trial court overruled Williams’s objections and

denied his motion to set aside the default judgment. The court found that Williams’s
                                                                                               4

motion was timely and that he presented a meritorious defense to the judgment. It further

found, however, that Williams failed to demonstrate that he was entitled to relief under

Civ.R. 60(B)(1) through (5).

       {¶ 8}     Williams appeals from the trial court’s judgment, claiming that “the trial

court erred by denying Appellant’s motion to set aside default judgment.” Williams asserts

that relief should have been granted because his motion was timely and he has a meritorious

defense to the judgment.

       {¶ 9}     Civ.R. 60(B) permits trial courts to relieve parties from a final judgment for

the following reasons: (1) “mistake, inadvertence, surprise or excusable neglect;” (2) newly

discovered evidence; (3) fraud, misrepresentation or other misconduct of an adverse party;

(4) the judgment has been satisfied, released or discharged; or (5) any other reason justifying

relief from the judgment. To prevail on a motion brought under Civ.R. 60(B), the movant

must demonstrate that (1) the party has a meritorious defense or claim to present if relief is

granted, (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B), and

(3) the motion is made within a reasonable time and, for reasons under Civ.R. 60(B)(1)-(3),

not more than one year after judgment. GTE Automatic Elec., Inc. v. ARC Industries, Inc.,

47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. All of these

requirements must be satisfied, and the motion should be denied if any one of the

requirements is not met. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994);

Cincinnati Ins. Co. v. Schaub, 2d Dist. Montgomery No. 22419, 2008-Ohio-4729, ¶ 15.

       {¶ 10}    We review the trial court’s determination of a Civ.R. 60(B) motion for an

abuse of discretion. State ex rel. Jackson v. Ohio Adult Parole Authority, Slip Opinion No.
                                                                                                5

2014-Ohio-2353, ¶ 22; Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). An

abuse of discretion means that the court’s attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 11}    At the outset, we reiterate that Williams failed to provide a transcript of the

May hearing before the magistrate and of the July hearing before the trial court. As a result

of that failure, we have no record of the evidence presented to the magistrate and the trial

court at those hearings, and we cannot review their factual findings. See Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980) (duty to provide transcript for

appellate review); Civ.R. 53(D)(3)(b)(iii) (objection to magistrate’s factual findings). With

the limited record before us, we find no abuse of discretion in the trial court’s ruling.

       {¶ 12}    First, the trial court did not abuse its discretion when it found that Williams

did not establish that his failure to respond to the complaint was due to excusable neglect.

The Ohio Supreme Court has defined “excusable neglect” in the negative, stating that “the

inaction of a defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard

for the judicial system.’” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d

1102 (1996); State ex rel. Jackson at ¶ 23. Williams claimed in his motion that he did not

respond to the complaint due to his inability to hire an attorney and his lack of legal training.

       {¶ 13}    In finding no excusable neglect, the trial court noted that Williams did not

argue that he did not know that he had to file a response to the complaint or that he was not

served with the complaint. The trial court found that Williams had received the complaint

and summons and that he was on notice of both the requirement that he respond to the

complaint and that, if he did not respond, Wright State University could be granted a default
                                                                                          6

judgment against him for the amount stated in the complaint. The court emphasized that

pro se litigants are held to the same standards as other litigants. The court concluded that

Williams’s explanation for his failure to respond (i.e., he lacked legal training and was

unable to hire an attorney) was not a justifiable excuse for his failure to attempt a timely

response to the complaint. On the record before us, the trial court’s determination was not

an abuse of discretion.

       {¶ 14}    Second, the court found that Williams was not entitled to relief from

judgment under Civ.R. 60(B)(3), concerning fraud, misrepresentation or other misconduct

by an adverse party. Williams had argued that he was misled by a Wright State University

financial aid counselor that he would not be receiving financial aid in the spring of 2004.

The trial court noted that Williams had acknowledged receiving documentation about the

financial aid in 2004. The trial court concluded: “[N]one of this documentation is newly

discovered.     Defendant also did not present any information that he appealed the

University’s decision. Taking all of the documents provided by Defendant in tandem, the

Court cannot ascertain any fraud, misrepresentation, or other misconduct by Plaintiff in its

actions notifying Defendant that he was not eligible for federal student aid for the spring

quarter of 2004 or how that alleged activity impacted whether Defendant owed monies on

account to Plaintiff.”

       {¶ 15}    Williams’s arguments do not demonstrate that he can satisfy Civ.R.

60(B)(3).     “The fraud or misconduct contemplated by Civ.R. 60(B)(3) is fraud or

misconduct on the part of the adverse party in obtaining the judgment by preventing the

losing party from fully and fairly presenting his defense, not fraud or misconduct which in
                                                                                         7

itself would have amounted to a claim or defense in the case.” Wells Fargo Bank, N.A. v.

Brandle, 2d Dist. Champaign No. 2012 CV 2, 2012-Ohio-3492, ¶ 13. Even accepting

Williams’s argument that Wright State University misled him about the issuance of financial

aid, that argument may have constituted a defense to Wright State University’s original

claim or may have concerned a potential claim against the university for fraud; it does not

allege that Wright State University engaged in any conduct that prevented him from timely

responding to the complaint and presenting a defense. The trial court did not abuse its

discretion in finding that Williams failed to satisfy Civ.R. 60(B)(3).

       {¶ 16}    Williams’s assignment of error is overruled.

       {¶ 17}    The trial court’s judgment will be affirmed.

                                          ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Charles F. Geidner
Brent E. Rambo
Brian K. Williams
Hon. Beth W. Root
