[Cite as Ohio Neighborhood Fin. v. Brown, 2011-Ohio-2758.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                    LAWRENCE COUNTY

Ohio Neighborhood Finance, Inc.,      :
                                      :
     Plaintiff-Appellant,             :
                                      :           Case No. 10CA41
     v.                               :
                                      :           DECISION AND
Randy Brown,                          :           JUDGMENT ENTRY
                                      :
     Defendant-Appellee.              :    File-stamped date: 6-02-11
________________________________________________________________

                                          APPEARANCES:

Anthony M. Sharett and Samir B. Dahman, Bricker & Eckler, L.L.P., Columbus, OH, for
Appellant.1
________________________________________________________________

Kline, J.:

{¶1}         Ohio Neighborhood Finance, Inc. (hereinafter “Ohio Neighborhood”) appeals

the judgment of the Ironton Municipal Court, which denied its motion for relief from

judgment. Ohio Neighborhood contends that the trial court abused its discretion when it

entered a default judgment against Randy Brown (hereinafter “Brown”) with an interest

of five percent per annum rather than twenty-five percent. However, because we find

that Ohio Neighborhood used a Civ.R. 60(B) motion as a substitute for a direct appeal,



1
  Defendant-Appellee, Randy Brown, did not file a brief or otherwise enter an
appearance in this appeal. Under App. R. 18(C), we may accept Ohio Neighborhood
Finance Inc.’s statement of the facts and issues as correct and reverse the trial court’s
judgment as long as its brief reasonably appears to sustain reversal. See Sprouse v.
Miller, Lawrence App. No. 06CA37, 2007-Ohio-4397, at fn.1; State v. Miller (1996), 110
Ohio App.3d 159, 161-62. “An appellate court may reverse a judgment based solely on
a consideration of an appellant’s brief.” Sprouse at fn.1; see, also, Ford Motor Credit
Co. v. Potts (1986), 28 Ohio App.3d 93, 96; State v. Grimes (1984), 17 Ohio App.3d 71,
71-72. However, because we find that Ohio Neighborhood Finance Inc. improperly
used a Civ.R. 60(B) motion as a substitute for a direct appeal, we dismiss the appeal.
Lawrence App. No. 10CA41                                                           2


we do not reach the merits of Ohio Neighborhood’s argument. Accordingly, we dismiss

Ohio Neighborhood’s appeal.

                                            I.

{¶2}      Ohio Neighborhood entered into a loan agreement with Brown on February 6,

2009, whereby Ohio Neighborhood loaned Brown $500. Under the loan agreement,

Brown agreed to pay a loan origination charge of $30.00 and a credit investigation fee

of $10.00. Coupled with interest, Brown was obligated to pay Ohio Neighborhood

$545.16 on February 20, 2009. The “PROMISE TO PAY” section of the loan agreement

provides “You [i.e., Brown] promise to pay us [i.e., Ohio Neighborhood] $500.00 (the

Principal Amount of this loan) plus interest at a rate of 25% per annum on the principal

outstanding for the time outstanding from the date of this Customer Agreement until

paid in full. Interest shall be computed daily upon the principal balance outstanding by

using the simple interest method, assuming a 365-day year.”2

{¶3}      Brown did not repay the loan on February 20, 2009. Ohio Neighborhood

demanded payment, but Brown failed to make the payments due and owing on the loan.

On June 24, 2009, Ohio Neighborhood filed its complaint against Brown in Ironton

Municipal Court. Ohio Neighborhood sought judgment against Brown in the sum of

$580.16 with interest at the agreed upon rate of twenty-five percent per annum from the

date of default.




2
  We note that there is an apparent discrepancy in the loan agreement between Ohio
Neighborhood and Brown. The “PROMISE TO PAY” section of the agreement indicates
that the principal amount of the loan is $500, but the itemization portion of the loan
indicates that the principal amount of the loan is $540 (i.e., $500 amount financed; plus
$30 loan origination fee; plus $10 credit investigation fee). Given our disposition of this
appeal, however, any issue caused by this discrepancy is moot.
Lawrence App. No. 10CA41                                                              3


{¶4}      Brown failed to respond or otherwise plead to Ohio Neighborhood’s

complaint. Consequently, on October 9, 2009, Ohio Neighborhood moved for default

judgment against Brown. The magistrate issued a decision on November 17, 2009.

The magistrate’s decision provided for judgment in the amount of $580.16 and interest

at the “statutory rate” of interest, which was five percent per annum.

{¶5}      Ohio Neighborhood filed an objection to the magistrate’s decision on

November 30, 2009. Ohio Neighborhood argued that the interest rate on the judgment

should be twenty-five percent as provided in the loan agreement between Ohio

Neighborhood and Brown.

{¶6}      The trial court’s June 7, 2010 Judgment Entry affirmed the magistrate’s

decision. The Judgment Entry provides for judgment in favor of Ohio Neighborhood

against Brown in the amount of $580.16, with interest at the rate of five percent.

{¶7}      On August 2, 2010, Ohio Neighborhood moved for relief from judgment under

Civ.R. 60(B). In its motion, Ohio Neighborhood argued that the magistrate improperly

reduced the interest rate on Brown’s loan from twenty-five percent to five percent. Ohio

Neighborhood attached a copy of Ohio Neighborhood Fin., Inc. v. Dotson, Lawrence

App. No. 09CA27, 2010-Ohio-3366. In Dotson, we addressed a substantially similar

issue, though not in the Civ.R. 60(B) context. We held that where a loan agreement

provides for a specific interest rate, and such a rate is authorized by statute, the trial

court errs when it reduces the interest rate below the rate specified in the loan

agreement.

{¶8}      The magistrate held a motion hearing on September 27, 2010, and, on

September 28, 2010, the magistrate recommended denial of Ohio Neighborhood’s
Lawrence App. No. 10CA41                                                          4


motion without explanation. On October 18, 2010, the trial court denied Ohio

Neighborhood’s motion for relief without explanation.

{¶9}      Ohio Neighborhood appeals and asserts the following assignment of error:

“THE TRIAL COURT ABUSED ITS DISCRETION AFFIRMING THE MAGISTRATE’S

DECISION TO REDUCE TO 5% PER ANNUM, THE INTEREST RATE ON THE DEBT

IN THE DEFAULT JUDGMENT GRANTED IN FAVOR OF APPELLANT OHIO

NEIGHBORHOOD FINANCE, INC.”

                                             II.

{¶10}     Ohio Neighborhood argues that the trial court abused its discretion when it

affirmed the magistrate’s decision. Specifically, Ohio Neighborhood objects to the trial

court’s decision to reduce the interest rate on Brown’s debt from twenty-five percent per

annum, as provided in the loan agreement, to five percent. Despite framing its

argument in this fashion, Ohio Neighborhood actually appeals the denial of its motion

for relief from judgment under Civ.R. 60(B).

{¶11}     We review a trial court’s decision regarding a motion for relief from judgment

under an abuse of discretion standard. Dayton Power and Light v. Holdren, Highland

App. No. 07CA21, 2008-Ohio-5121, at ¶10; Harris v. Anderson, 109 Ohio St.3d 101,

2006-Ohio-1934, at ¶7. An abuse of discretion connotes more than a mere error of

judgment; it implies that the court’s attitude is arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

{¶12}     Civ.R. 60(B) provides: “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
Lawrence App. No. 10CA41                                                             5


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 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.”

{¶13}     “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)(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, order or proceeding was entered or taken.” GTE Automatic Elec., Inc. v.

ARC Industries, Inc. (1976), 47 Ohio St.2d 146, at paragraph two of the syllabus.

{¶14}     Initially, we note that in its sole assignment of error, Ohio Neighborhood

focuses its challenge on the merits of the trial court’s decision. That is, Ohio

Neighborhood argues that the trial court abused its discretion by reducing the interest

rate on Brown’s debt in its judgment. The trial court entered judgment against Brown on

June 7, 2010, which provided for a five percent per annum interest rate as opposed to
Lawrence App. No. 10CA41                                                             6


the twenty-five percent rate from the loan agreement. Ohio Neighborhood filed its

motion for relief from judgment on August 2, 2010.

{¶15}     Ohio Neighborhood asserts that it “chose to file its Civ.R. 60(B) motion in lieu

of directly appealing the court’s decision because [Ohio Neighborhood] contemplated

that once it brought the [holding of Dotson] to the trial court’s attention, the court would

promptly modify the judgment accordingly and alleviate the need to burden the docket

with an appeal.” Appellant’s Brief at 4.

{¶16}     We find, however, that Ohio Neighborhood used a Civ.R. 60(B) motion as a

substitute for a direct appeal. “‘[W]here the remedy of appeal is available to a party,

and where the issues raised in a motion for relief from judgment are those which could

properly have been raised on appeal, a motion for relief from judgment will be denied.’”

Newell v. White, Pickaway App. No. 05CA27, 2006-Ohio-637, at ¶14, quoting

Burroughs Real Estate Co. v. Zennie R. Heath (Mar. 20, 1980), Cuyahoga App. No.

40476. “In order to bring [itself] within the limited area of Civ.R. 60(B), [Ohio

Neighborhood] must establish the existence of extraordinary circumstances which

rendered [it] unable to appeal[.] * * * [A] party should not be permitted to circumvent the

appeals process through application of Civ.R. 60(B), since it is the function of the

appellate court to correct legal errors committed by the trial court.” Newell at ¶14,

quoting Taylor v. Taylor (Mar. 27, 1987), Lawrence App. No. 1801 (emphasis sic). See,

also, Plotkin v. Pacific Tel. & Tel. Co. (C.A.9, 1982), 688 F.2d 1291; 7 Moore Federal

Practice (1985), Paragraph 60.18(8).

{¶17}     In short, Civ.R. 60(B) was intended to provide relief from a final judgment in

specific, enumerated situations and cannot be used as a substitute for a direct, timely
Lawrence App. No. 10CA41                                                            7


appeal. See Doe v. Trumbull County Children Services Board (1986), 28 Ohio St.3d

128, at paragraph two of the syllabus; Newell at ¶15. “If a party raises the same

question in a Civ.R. 60(B) motion as [it] could have raised on a direct appeal, [that party]

could get an indirect extension of time for appeal by appealing the denial of the Civ.R.

60(B) motion.” Newell at ¶ 15, citing Parke-Chapley Construction Co. v. Cherrington

(C.A.7, 1989), 865 F.2d 907, 915. Thus, “[w]hen a Civ.R. 60(B) motion is used as a

substitute for a timely appeal, and when the denial of that motion is subsequently

appealed, the proper response is the dismissal of the appeal.” Garrett v. Gortz,

Cuyahoga App. No. 90625, 2008-Ohio-4369, at ¶14, citing State ex rel. Richard v.

Cuyahoga Cty. Commrs., 89 Ohio St.3d 205, 2000-Ohio-135. See, also, Elliott v.

Smead Mfg. Co., Hocking App. Nos. 08CA13 & 08AP13, 2009-Ohio-3754, at ¶12-13.

{¶18}     Here, Ohio Neighborhood did not directly appeal the trial court’s judgment.

On a direct appeal, Ohio Neighborhood could have raised the same issue that it raised

in its Civ.R. 60(B) motion. That is, Ohio Neighborhood could have argued that the

interest rate on the judgment against Brown should have been twenty-five percent per

annum as provided in the loan agreement rather than the five percent rate awarded by

the trial court. Therefore, Ohio Neighborhood improperly used a Civ.R. 60(B) motion as

a substitute for a direct appeal.

{¶19}     Accordingly, we reject Ohio Neighborhood’s assignment of error and dismiss

its appeal.

                                                                    APPEAL DISMISSED.
Lawrence App. No. 10CA41                                                            8


                                   JUDGMENT ENTRY

       It is ordered that the APPEAL BE DISMISSED. Appellant shall pay the 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
Ironton Municipal 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. Exceptions.


       Abele, J.: Concurs in Judgment and Opinion.
       McFarland, J.: Concurs in Judgment Only.


                                   For the Court


                                   BY:_____________________________
                                      Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
