[Cite as Perkins v. Nocum, 2011-Ohio-4167.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

MAUREEN PERKINS 

 Appellee 

 v. 

MARGUERITE NOCUM, et al. 

 Appellant 

C.A. No. 10CA0098-M 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF MEDINA, OHIO 

CASE No. 07CIV1095 

DECISION AND JOURNAL ENTRY

Dated: August 22, 2011 

 

 BELFANCE, Presiding Judge. 

{¶1} Robert Klooz appeals from the trial court’s denial of his motion to vacate a 

default judgment. For the reasons set forth below, we reverse. 

I. 

{¶2} In July 2007, Maureen Perkins filed an action against multiple defendants, 

including Mr. Klooz. This was her second action against these defendants, having voluntarily 

dismissed the original action in May 2007. In both complaints, she stated claims for fraud, that 

the defendants had breached a real estate sales agreement, engaged in deceptive sales acts, and 

breached express and implied warranties. In that earlier action, Mr. Klooz, after being served 

with the complaint, had written a letter to Ms. Perkins’ counsel, stating that he had cleaned the 

septic tank on November 11, 2003, and that his job entailed working with just the tank and not 

the entire system. He also informed Ms. Perkins’ counsel that he only dealt with the previous 
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owner of the home. He concluded the letter by saying, “Should you require additional 

information, please contact me.” 

{¶3} Mr. Klooz did not respond to the second complaint, and Ms. Perkins moved for a 

default judgment against Mr. Klooz on September 26, 2008. The trial court entered a judgment 

against Mr. Klooz on October 22, 2008, and it found that Ms. Perkins was entitled to $50,250 in 

compensatory damages, $50,250 in punitive damages, and $33,500 in attorney fees. Mr. Klooz 

was not present at this hearing, and, apparently, no record of the proceedings was made. 

According to Mr. Klooz, Ms. Perkins’ counsel never contacted him about the default judgment 

until October 23, 2009. 

{¶4} Mr. Klooz filed a Civ.R. 60(B) motion to vacate the default judgment on 

November 25, 2009, in which he argued that his motion was timely, that he had a meritorious 

defense, and that he was entitled to relief under Civ.R. 60(B)(5). After learning that the journal 

entry for his default judgment was not a final appealable order, he filed a supplemental 

memorandum in which he argued that his motion had come within a year of the actual final 

judgment and, therefore, he was also entitled to relief under Civ.R. 60(B)(1) and (3). The trial 

court denied his motion, determining that, while it was timely, Mr. Klooz failed to demonstrate 

excusable neglect. Mr. Klooz has appealed, alleging four assignments of error. As the 

resolution of Mr. Klooz’s third assignment of error is dispositive, we address it first. 

II. 

ASSIGNMENT OF ERROR III 

“THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DENIAL OF THE 

DEFENDANT’S MOTION FOR RELIEF FROM JUDGMENT BROUGHT 

PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 60(B)(5) 

REFERENCING A DEFAULT JUDGMENT ENTERED BY THE TRIAL 

COURT AS THE APPELLANT DESERVED SUCH RELIEF IN THE 

INTERESTS OF JUSTICE AND EQUITY.” 
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{¶5} Mr. Klooz argues that the trial court should have granted his Civ.R. 60(B) motion 

because he was entitled to relief pursuant to Civ.R. 60(B)(5) and he satisfied the other elements 

required for relief. 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, paragraph two of the syllabus. 

“Where timely relief is sought from a default judgment and the movant has a meritorious 

defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that 

cases may be decided on their merits.” Id. at paragraph three of the syllabus. 

{¶6} Civ.R. 60(B) provides that: 

“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 should have prospective application; or 

(5) any other reason justifying relief from the judgment.” 

Civ.R. 60(B)(5) reflects “the inherent power of a court to relieve a person from the unjust 

operation of a judgment.” State ex rel. Gyurcsik v. Angelotta (1977), 50 Ohio St.2d 345, 346. 

“The grounds for invoking Civ.R. 60(B)(5) should be substantial.” Caruso-Ciresi, Inc. v. 

Lohman (1983), 5 Ohio St.3d 64, paragraph two of the syllabus. A trial court’s decision on a 

Civ.R. 60(B) motion is reviewed for an abuse of discretion. Strack v. Pelton (1994), 70 Ohio 
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St.3d 172, 174. An abuse of discretion “implies that the court’s attitude is unreasonable, 

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

{¶7} The trial court determined that Mr. Klooz’s Civ.R. 60(B) motion was timely, a 

determination that has not been disputed by Ms. Perkins. Thus, our focus is upon the remaining 

elements required under GTE Automatic. 

{¶8} This Court has previously addressed a similar issue in Ross v. Shively, 9th Dist. 

No. 23719, 2007-Ohio-5118. In Ross, Martha Ross filed an action against the driver of the car 

that struck her, Progressive Insurance, State Farm Insurance, and United Healthcare. Id. at ¶3. 

Ms. Ross had been covered by her husband’s employer-provided insurance provider, which was 

United Healthcare, and it had covered a portion of her medical expenses. Id. at ¶2. She sought a 

judgment “‘against the Defendants, jointly and severally, in excess of Twenty-Five Thousand 

Dollars ($25,000), together with costs and expenses incurred therein.’” Id. at ¶4. United 

Healthcare did not respond to the complaint, and the trial court entered a default judgment 

against United Healthcare. Id. United Healthcare moved to vacate the judgment under Civ.R. 

60(B)(5), but the trial court denied the motion. Id. 

{¶9} On appeal, this Court noted that, while “a default judgment may be entered 

[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or 

otherwise defend as provided by these rules[,] * * * default judgment is improper when the 

complaint fails to state a claim against the defendant.” (Internal citations and quotations 

omitted.) Id. at ¶¶9-10; see, also, Civ.R. 55(A). For this reason, this Court recognized that “[t]he 

improper entry of default judgment constituted substantial grounds for relief from judgment 

pursuant to Civ.R. 60(B)(5) [when] the default judgment subjected [the defendant] to liability on 

claims that were not asserted.” Ross at ¶14. 
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{¶10} Ms. Ross’s complaint only contained a single reference to United Healthcare: 

“‘At all times relevant hereto, Plaintiff CHARLES L. ROSS, husband of Plaintiff, 

MARTHA A. ROSS, had medical and hospitalization coverage with the 

Defendant, UNITED HEALTHCARE SERVICES, through his employer, that 

made certain payments for the Plaintiff, MARTHA A. ROSS, as and for medical 

and hospitalization services, claiming that they have expended the sum of 

$17,539.96 for said services to date.’” Id. at ¶12. 

“Although the prayer for damages stated that Mr. & Mrs. Ross demanded judgment against ‘all 

defendants,’ the complaint did not allege any liability on the behalf of United Healthcare * * *. 

By failing to answer the complaint, therefore, United Healthcare conceded only that it provided 

health insurance coverage to Mrs. Ross through her husband’s employer and that it claimed to 

have expended $17,539.96 for her care and treatment.” Id. at ¶13. Accordingly, this Court 

concluded that the trial court had abused its discretion when it denied United Healthcare’s 

motion. 

{¶11} In Ms. Perkins’ complaint, she alleged, “[Mr.] Klooz is the owner and operator of 

Klooz Septic Service operating under the laws of the state of Ohio as a sole proprietorship. [Mr.] 

Klooz performed service on the septic system of the real estate that is the subject of this litigation 

on an every-other-year basis.” She also alleged that, “[o]n October 31, 2003[,] [Joseph] Guthrie 

presented evidence to [Ms. Perkins] that the septic tank was scheduled to be pumped by [Mr.] 

Klooz on November 11, 2003, and that [Mr.] Klooz cleaned the tank every two years.” Ms. 

Perkins never alleged that she had a contract with Mr. Klooz, that he represented anything to her, 

or even that he did not empty the septic tank. 

{¶12} By not responding to her complaint, Mr. Klooz merely admitted that he was the 

owner and operator of Klooz Septic Service, that he serviced the tank every two years, and that a 

man told Ms. Perkins that Mr. Klooz was scheduled to pump the tank on November 11, 2003, 

and that Mr. Klooz pumped the tank every two years. As Mr. Klooz averred in his affidavit 
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submitted with his Civ.R. 60(B) motion, “I did in fact pump the tank every two years, and was 

scheduled to and did pump the tank on November 11, 2003. * * * I still do not understand [how 

that allegation could make me responsible for a judgment in excess of $100,000] to this day.” 

{¶13} Mr. Klooz’s confusion is understandable given that Ms. Perkins’ complaint is 

devoid of a claim against him. For example, she alleged a breach of contract by the defendants 

but never alleged that she had a contract with Mr. Klooz. She also alleged that the defendants 

made fraudulent statements and representations to her but never alleged that Mr. Klooz made any 

statements or representations to her. She did not even allege he failed to clean the septic tank as 

was represented by Mr. Guthrie. Accordingly, Mr. Klooz did not admit to any liability when he 

failed to respond to the complaint. Mr. Klooz has a meritorious defense against the judgment 

and is entitled to relief under Civ.R. 60(B)(5). Thus, he has satisfied all the prongs of the GTE 

Automatic test. 

{¶14} Given that Ms. Perkins’ complaint did not allege a claim against Mr. Klooz, there 

are substantial grounds for granting his Civ.R. 60(B) motion, and it was unreasonable for the trial 

court to deny it. Mr. Klooz’s third assignment of error is sustained. 

ASSIGNMENT OF ERROR I 

“THE TRIAL COURT ABUSED ITS DISRECTION IN ITS DENIAL OF THE 

DEFENDANT’S MOTION FOR RELIEF FROM JUDGMENT BROUGHT 

PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 60(B)(1) 

REFERENCING A DEFAULT JUDGMENT ENTERED BY THE TRIAL 

COURT AS THE APPELLANT ASSERTED NUMEROUS AND 

MERITORIOUS DEFENSES JUSTIFYING RELIEF.” 

ASSIGNMENT OF ERROR II 

“THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DENIAL OF THE 

DEFENDANT’S MOTION FOR RELIEF FROM JUDGMENT BROUGHT 

PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 60(B)(3) 

REFERENCING A DEFAULT JUDGMENT ENTERED BY THE TRIAL 
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COURT AS THE APPELLANT ASSERTED NUMEROUS AND 

MERITORIOUS DEFENSES JUSTIFYING SUCH RELIEF.” 

ASSIGNMENT OF ERROR IV 

“THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DENIAL OF THE 

DEFENDANT’S MOTION FOR RELIEF FROM JUDGMENT BROUGHT 

PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 60(B)(1) THROUGH 

(B)(5) WITHOUT A HEARING AND WITHOUT THE ABILITY TO 

PRESENT TESTIMONY IN SUPPORT OF THE ERRORS ALLEGEDLY 

COMMITTED.” 

{¶15} Mr. Klooz’s remaining assignments of error are rendered moot by our resolution 

of his third assignment of error. Thus, we do not address them. See App.R. 12(A)(1)(c). 

III. 

{¶16} Mr. Klooz’s third assignment of error is sustained. His first, second, and fourth 

assigned errors are moot. See App.R. 12(A)(1)(c). The judgment of the Medina County Court 

of Common Pleas is reversed, and the matter is remanded for further proceedings consistent with 

this opinion. 

Judgment reversed, 

and cause remanded. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is 
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellee. 

 

 EVE V. BELFANCE 

 FOR THE COURT 

MOORE, J. 

CONCURS

DICKINSON, J. 

CONCURS, SAYING:

{¶17} I concur in the majority's judgment and most of its opinion. While I acknowledge 

that the Ohio Supreme Court has written that an abuse of discretion standard applies to the 

review of a ruling on a motion for relief from judgment, in practice, both the Supreme Court and 

this Court have applied a de novo standard: “In order for a party to prevail on a motion for relief 

from judgment under Civ.R. 60(B), the movant must demonstrate the following . . . . These 

requirements are independent and in the conjunctive; thus the test is not fulfilled if any one of the 

requirements is not met.” Strack v. Pelton, 70 Ohio St. 3d 172, 174 (1994); see Buckingham, 

Doolittle & Burroughs LLP v. Healthcare Imaging Solutions LLC, 9th Dist. No. 24699, 2010–

Ohio–418, at ¶10. If a moving party satisfies the three-prong test, a trial court does not have 

discretion to deny relief. If a moving party does not meet the three-prong test, a trial court does 

not have discretion to grant relief. This case is yet another example of that. Although the 

majority has recited that it is applying an abuse of discretion standard, it has, in fact, given no 

deference to the trial court’s decision. Mr. Klooz satisfied the three-prong test for relief under 
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Rule 60(B), and, therefore, the trial court was required to grant his motion. It did not abuse its 

discretion by failing to do so. It erred by failing to do so, and its decision is correctly reversed. 

APPEARANCES:

RICHARD J. MARCO, JR., Attorney at Law, for Appellant. 

THOMAS C. LOEPP, Attorney at Law, for Appellee.