[Cite as Milton Banking Co. v. Dulaney, 2012-Ohio-1494.]

 

IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

 JACKSON COUNTY 

THE MILTON BANKING COMPANY, : 

 

Plaintiff-Appellant, : Case No. 11CA1 

 

vs. : 

BRIAN W. DULANEY, et al., : DECISION AND JUDGMENT ENTRY 

 

 

Defendants-Appellees. : 

 APPEARANCES: 

COUNSEL FOR APPELLANTS, Robert R. Miller, Oths, Heiser & 

THE MILTON BANKING CO. & Miller, Sixteen East Broadway, 

FIRST NATIONAL BANK OF P.O. Box 309, Wellston, Ohio 45692 

WELLSTON: 

COUNSEL FOR APPELLEE: Darryl E. Gormley, Reimer, 

CHASE HOME FINANCE, Arnovitz, Chernek & Jeffrey Co. 

L.L.C.: L.P.A., 2450 Edison Boulevard, P.O. Box 968, Twinsburg, 

Ohio 44087 

CIVIL APPEAL FROM COMMON PLEAS COURT 

DATE JOURNALIZED: 3-28-12 

ABELE, P.J. 

{¶ 1} This is an appeal from a Jackson County Common Pleas Court order that granted 

Civ.R. 60(B) relief on a default judgment taken against Chase Home Finance, L.L.C. (Chase), 

defendant below and appellee herein. The Milton Banking Company (Milton), plaintiff below 

and appellant herein, and First National Bank of Wellston (Wellston), defendant below and 
JACKSON, 11CA1 2

appellant herein, assign the following errors for review: 

FIRST ASSIGNMENT OF ERROR: 

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN 

GRANTING CHASE HOME FINANCE LLC’S MOTION FOR 

RELIEF FROM JUDGMENT.” 

SECOND ASSIGNMENT OF ERROR: 

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN 

ORDERING A MARGINAL NOTE TO BE MADE UPON VOL. 

12, PG. 1313 OF THE JACKSON COUNTY RECORD OF 

MORTGAGE AND THE RECORDER INDEX TO SHOW THE 

EFFECT OF THE TRIAL COURT’S ENTRY.” 

THIRD ASSIGNMENT OF ERROR: 

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN 

FINDING (A) THAT DEFENDANT CHASE HAS 

DEMONSTRATED RELIEF UNDER CIVIL RULE 60(B); (B) 

THAT DEFENDANT CHASE HAS DEMONSTRATED THAT 

IT HAS A MERITORIOUS DEFENSE OR CLAIM TO 

PRESENT IF RELIEF IS GRANTED; (C) THAT DEFENDANT 

CHASE IS ENTITLED TO RELIEF UNDER CIVIL RULES 

60(B)(1),(3), (4) AND (5); AND (D) THAT DEFENDANT 

CHASE HAS MADE THE MOTION WITH A REASONABLE 

TIME UNDER CIV.R. 60(B)(4) AND (5) AND UNDER 60(B)(1) 

AND (3) NOT MORE THAN ONE YEAR AFTER 

JUDGMENT.” 

{¶ 2} This is the third time this case has visited this Court. Consequently, we take much 

of our factual recitation from previous opinions. On July 29, 2003, Brian W. Dulaney executed 

a $210,000 note to Chase's predecessor-in- interest. He and his wife, Shauna N. Dulaney, also 

conveyed a mortgage on their 776 Rock Run Road property as security for that note. 

{¶ 3} On March 6, 2006, Milton obtained a $407,706.05 judgment against the Dulaneys 

and levied a lien against their property. Milton commenced this action on October 20, 2006 to 
JACKSON, 11CA1 3

marshal all liens on the Dulaney property and to foreclose on its interest (case No. 06CIV272). 

The Dulaneys, however, had previously filed a Chapter 7 liquidation in the United States 

Bankruptcy Court, thus staying the action. During that stay, Milton requested default judgment 

on Chase's mortgage interest, as Chase had not answered Milton’s complaint. On June 8, 2007, 

the trial court granted a default judgment against Chase and ordered that Chase's interest be 

cancelled of record. 

{¶ 4} In the meantime, the Dulaney property was abandoned from the bankruptcy estate. 

 Chase commenced an action in January 2008 to foreclose on its mortgage interest and joined 

Milton and Wellston as defendants. Both lienholders filed Civ.R. 12(B)(6) motions to dismiss the 

foreclosure and argued that Chase no longer had an interest in the premises due to the 

aforementioned default judgment. 

{¶ 5} This prompted Chase to file a Civ.R. 60(B) motion for relief from the default 

judgment. Chase argued that the default judgment was void because it violated the bankruptcy 

stay. The trial court agreed with Chase that the default judgment was void ab initio and, thus, 

denied the Civ.R. 12(B)(6) motions to dismiss. An appeal was taken from that judgment that we 

dismissed for lack of a final appealable order. Milton Banking Co. v. Dulaney, 182 Ohio 

App.3d 634, 914 N.E.2d 433, 2009-Ohio-1939, at ¶¶7-8 (Milton I). 

{¶ 6} Subsequently, the trial court re-entered the judgment but, this time, with language 

that satisfied the finality requirements of Ohio law. In the second appeal we agreed with 

Chase’s argument that the default judgment violated the bankruptcy law's automatic stay. 

Milton Banking Co. v. Dulaney, Jackson App. No. 09CA10, 2010-1907, at ¶16 (Milton II). 
JACKSON, 11CA1 4

However, we disagreed that the default judgment was void ab initio and that the trial court had 

inherent power to vacate that judgment. Rather, we held that the judgment was voidable and 

that to vacate it the trial court must issue a ruling under Civ.R. 60(B). Milton II, at ¶¶25-27. 

Thus, we remanded the case for the trial court to enter appropriate findings pursuant to that rule. 

Id. at ¶29. 

{¶ 7} On December 3, 2010, the trial court entered judgment and granted Chase Civ.R 

60(B) relief from the default judgment. In so doing, the court found that the motion was brought 

within an appropriate time and that Chase established entitlement to relief under subparts (1), (3), 

(4) and (5). The trial court ordered the default judgment vacated and Chase’s mortgage 

reinstated. This appeal followed.1

 I 

{¶ 8} We jointly consider the three assignments of error because they involve the same 

issue - whether the trial court erred by granting Chase relief from judgment. 

{¶ 9} A Civ.R. 60(B) motion for relief from judgment is committed to the trial court's 

sound discretion and its ruling will not be disturbed absent an abuse of that discretion. State ex 

rel. Russo v. Deters (1997), 80 Ohio St.3d 152, 153, 684 N.E.2d 1237; Griffey v. Rajan (1987), 

 1

Before we turn to the merits of the assignments of error, we pause to address a procedural issue. App.R. 

16(A)(7) requires an appellant’s brief to contain arguments “with respect to each assignment of error.” (Emphasis 

added.) Although appellate courts have the option to address two or more assignments of error at once, the parties do 

not. See Powell v. Vanlandingham, Washington App. No. 10CA24, 2011-Ohio-3208, at ¶24; Keffer v. Cent. Mut. 

Ins. Co., Vinton App. No. 06CA652, 2007–Ohio–3984, at ¶8, fn. 2. Parties must comply with the Ohio Rules of 

Appellate Procedure. If not, App.R. 12(A)(2) permits us to disregard those assignments of error that are not 

separately argued. 

In the case sub judice, appellants’ three assignments of error are not separately argued. Thus, we could 

simply disregard them and uphold the trial court’s judgment. Nevertheless, in the interests of justice, we will 

consider the assignments of error. 
JACKSON, 11CA1 5

33 Ohio St.3d 75, 77, 514 N.E.2d 1122. We note that generally an abuse of discretion is more 

than an error of law or judgment; rather, it implies that a trial court's attitude is unreasonable, 

arbitrary or unconscionable. Landis v. Grange Mut. Ins. Co. (1998), 82 Ohio St.3d 339, 342, 695 

N.E.2d 1140; Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440, 448, 659 N.E.2d 

1242. In applying the abuse of discretion standard, appellate courts must not substitute their 

judgment for that of the trial court. State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 

Ohio St.3d 728, 732, 654 N.E.2d 1254; In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-138, 

566 N.E.2d 1181. 

{¶ 10} One reason for our remand in this case was our difficulty in discerning the trial 

court's reasons for granting Civ.R. 60(B) relief. Also, because neither party had submitted 

motions we could not review their respective arguments. Milton II, at ¶27. Chase did file a 

supplemental memorandum on August 4, 2010 and set out its reasons for Civ.R. 60(B) relief. 

We note that generally to prevail on such motion, Chase must meet the following test: 

“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.” See 

GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 

N.E.2d 113, at paragraph two of the syllabus. 

A failure to satisfy these criteria will result in a denial of the motion. Strack v. Pelton (1994), 

70 Ohio St.3d 172, 174, 637 N.E.2d 914; Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 

17, 20, 520 N.E.2d 564. 

{¶ 11} Chase argued in its supplemental brief that it has a mortgage lien on the Dulaney 
JACKSON, 11CA1 6

property and, thus, a meritorious defense to present if relief is granted. Civ.R. 60(B)(3) also 

allows for relief when a party commits some misrepresentation or misconduct. As Chase notes, 

we observed in Milton II that the default judgment was taken in violation of the automatic stay. 

Id. at ¶16. This is sufficient to meet the Civ.R. 60(B)(3) requirement. Finally, the motion was 

filed within one year after the default judgment. See Milton I, supra at ¶¶4-6. 

{¶ 12} In short, we agree with the trial court's conclusion that Chase satisfied all the 

requirements for relief under Civ.R. 60(B), as well as GTE Automatic Elec., Inc., supra, at 

paragraph two of the syllabus. Furthermore, courts must strive to decide cases on their merits 

when possible, rather than on pleading technicalities. See, generally, In re Kister, 194 Ohio 

App.3d 270, 955 N.E.2d 1029, 2011-Ohio-2678, at ¶17; Smith v. Redecker, Athens App. No. 

08CA33, 2010-Ohio-505, at ¶26. Thus, we agree with the trial court's conclusion that the 

interests of justice in this case are best served by vacating the default judgment and requiring the 

parties to establish lien priority. 

{¶ 13} Accordingly, we find that the trial court committed no abuse of discretion by 

granting Chase relief from a prior default judgment. Thus, we hereby overrule Milton's 

assignments of error and affirm the trial court's judgment. 

JUDGMENT AFFIRMED. 
JACKSON, 11CA1 7

Kline, J., concurring. 

{¶ 14} I concur in judgment and opinion with one exception. Although I agree that we 

should strive to decide cases on their merits, I would not characterize a default judgment as a 

pleading technicality. Instead, I would simply note that, generally, “the law disfavors default 

judgments[.]” Suki v. Blume, 9 Ohio App.3d 289, 290, 459 N.E.2d 1311 (8th Dist.1983). 

{¶ 15} I concur in judgment and opinion in all other respects. 

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee to 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 Jackson County 

Common Pleas Court to carry this judgment into execution. 

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

Kline, J.: Concurs in Judgment & Opinion with Opinion McFarland, J.: Concurs in 

Judgment & Opinion 

For the Court 
JACKSON, 11CA1 8

BY: 

 Peter B. Abele 

 Presiding 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.