[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 

OF INDIANA, 

 Plaintiff-Appellee, 

v. 

EQUINE TRANSPORTATION 

ACCEPTANCE COMPANY ET AL., 

and 

JONATHAN MAAS, 

 Defendant-Appellant. 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. John W. Wise, J. 

Hon. Patricia A. Delaney, J. 

Case No. 2011CA00094 

O P I N I O N 

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