[Cite as Deere & Co. v. Brown, 2022-Ohio-1898.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

DEERE & COMPANY,

Appellee,

 - vs -

JASON M. BROWN,

Appellant.

:

:

:

:

:

:

CASE NO. CA2021-12-069

O P I N I O N

6/6/2022

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS

Case No. 2021 CVH 00330

Weltman, Weinberg & Reis Co., L.P.A., and Daniel A. Friedlander, for appellee.

Jason M. Brown, pro se.

S. POWELL, J.

{¶ 1} Appellant, Jason M. Brown, appeals the decisions of the Clermont County 

Court of Common Pleas denying his motion to strike and granting the motion for default 

judgment filed by appellee, Deere & Company ("Deere"). For the reasons outlined below, 
Clermont CA2021-12-069

- 2 -

we affirm the common pleas court's decisions.1

Facts and Procedural History

{¶ 2} On February 28, 2020, Deere filed a complaint against Brown in the Court of 

Common Pleas for Hamilton County, Ohio. Within its complaint, Deere alleged Brown had 

defaulted on the terms and conditions of a loan contract/security agreement that it had 

entered into with Brown on February 2, 2018. Deere also alleged within its complaint that, 

because of Brown's default, Brown owed it a total amount of $37,959.77, plus interest at a 

rate of 2.9% per annum, and court costs. Deere's complaint was signed by Attorney Andrew 

Voorhees with the law firm Weltman, Weinberg & Reis Co., L.P.A.

{¶ 3} On March 16, 2020, Brown, appearing pro se, filed a motion to dismiss 

Deere's complaint for lack of personal jurisdiction or, alternatively, improper venue. To 

support his motion, Brown argued the Hamilton County Court of Common Pleas did not 

have personal jurisdiction over him since he did not reside in Hamilton County, Ohio, "nor 

did any of the alleged transactions occur within Hamilton County, Ohio."2

{¶ 4} On April 2, 2021, over a year after Deere filed its complaint against Brown, a 

judge with the Hamilton County Court of Common Pleas issued an entry directing the 

transfer of the case to the Clermont County Court of Common Pleas (hereinafter, "common 

pleas court"). The record indicates this transfer was effectuated on April 12, 2021 after the 

Clermont County Clerk of Courts sent letters to both Brown and Deere informing them of 

the transfer. Brown does not dispute that he received this letter.

1. Pursuant to Loc.R. (6)(A), we sua sponte remove this appeal from the accelerated calendar for the purpose 

of issuing this opinion.

2. Despite Brown having filed a motion to dismiss Deere's complaint for lack of personal jurisdiction or, 

alternatively, improper venue, the record indicates the service of summons and copy of Deere's complaint 

had not been properly served on Brown. Because of this, on June 8, 2020, Deere filed a motion with the 

Hamilton County Court of Common Pleas requesting it "reissue summons" and a copy of its complaint to 

Brown via certified mail. The record indicates that Brown was thereafter served with the summons and copy 

of Deere's complaint by certified mail on June 11, 2020.
Clermont CA2021-12-069

- 3 -

{¶ 5} On July 23, 2021, Deere filed a motion with the common pleas court seeking 

a default judgment against Brown. Deere filed its motion pursuant to Civ.R. 55(A), which 

provides:

When a party against whom a judgment for affirmative relief is 

sought has failed to plead or otherwise defend as provided by 

these rules, the party entitled to a judgment by default shall 

apply in writing or orally to the court therefore; but no judgment 

by default shall be entered against a minor or an incompetent 

person unless represented in the action by a guardian or other 

such representative who has appeared therein. If the party 

against whom judgment by default is sought has appeared in 

the action, he (or, if appearing by representative, his 

representative) shall be served with written notice of the 

application for judgment at least seven days prior to the hearing 

on such application.

{¶ 6} As required by Civ.R. 5(B)(4), Deere's motion for default judgment included a 

certificate of service, which stated:

A copy of the foregoing Motion for Default Judgment was served 

upon the Defendant, Jason M. Brown, at the address listed in 

the Plaintiff's Complaint on this _19_ day of July, 2021 by 

Regular U.S. Mail.

Just like Deere's complaint, Deere's motion for default judgment was also signed by 

Attorney Voorhees with the law firm Weltman, Weinberg & Reis Co., L.P.A.

{¶ 7} On August 4, 2021, the common pleas court issued a notice to both Deere 

and Brown informing them that a hearing on Deere's motion for default judgment was 

scheduled to take place on August 20, 2021. Eight days later, on August 12, 2021, Brown 

filed a motion to continue that hearing. In support of his motion, Brown stated:

On or around July 23, 2021 Deere filed a Motion for Default 

Judgment however a copy of the motion was not received by 

Brown. Therefore Brown has been unable to file a Response to 

Deere's Motion for Default Judgment. A hearing has been 

scheduled for August 20, 2021 on the Motion for Default 

Judgment however Brown has never received a copy of the 

motion from Deere. * * *

Brown respectfully requests that the Court order [Deere] to 
Clermont CA2021-12-069

- 4 -

provide a copy of the Motion for Default Judgment so Brown can 

respond to their motion. Furthermore, Brown requests a 

continuance of the hearing currently scheduled for August 20, 

2021 so Brown can receive and respond to Deere's Motion for 

Default Judgment.

{¶ 8} On September 8, 2021, the common pleas court issued another notice to 

Deere and Brown informing them that the hearing on Deere's motion for default judgment 

had been rescheduled to take place on September 24, 2021. The record indicates Brown 

appeared at this hearing pro se, whereas Attorney Scott Collister with the law firm Brock & 

Scott, PLLC appeared on behalf of Deere. The record does not contain a transcript of the 

hearing on Deere's motion for default judgment. However, despite the lack of transcript, 

the record nevertheless indicates Brown did not object to Attorney Collister appearing and 

making arguments on Deere's behalf at that hearing.

{¶ 9} On October 1, 2021, approximately one week after the hearing on Deere's 

motion for default judgment concluded, Brown filed a "Document Request" asking the 

common pleas court to fax him a copy of Deere's complaint and motion for default judgment. 

Three days later, on October 4, 2021, Brown filed a motion to strike "all statements and 

arguments made by Attorney Scott Collistter" at the September 24, 2021 hearing on Deere's 

motion for default judgment. To support this motion, Brown argued:

Mr. Collister is not the attorney of record on this case nor does 

Mr. Collister work for the law firm that is representing [Deere] in

this matter. * * * Mr. Collister has not entered a Notice of 

Appearance in this case nor has the firm that Mr. Collister works 

for entered a Notice of Appearance in this case. Therefore, Mr. 

Collister had no authority to attend the hearing on September 

24, 2021 on behalf of [Deere] and all statements and arguments 

made by Mr. Collister should not be taken into consideration.

{¶ 10} On November 2, 2021, Brown, still appearing pro se, and without first 

receiving leave, filed with the common pleas court an untimely answer to Deere's complaint

it had originally filed with the Hamilton County Court of Common Pleas on February 28, 
Clermont CA2021-12-069

- 5 -

2020. In his answer, Brown generally denied Deere's allegations against him. This includes 

Deere's allegations set forth within paragraph three of the complaint that Brown had 

defaulted on the terms and conditions of the loan contract/security agreement "by failing to 

make all payments as required." This is in addition to Brown arguing the loan 

contract/security agreement was "not a valid, enforceable contract," as well as Brown 

arguing the common pleas court did not have "proper subject matter and personal 

jurisdiction" over him pursuant to the terms of the loan contract/security agreement.

{¶ 11} On November 22, 2021, the common pleas court issued a decision denying 

Brown's motion to strike and granting Deere's motion for default judgment. In so holding, 

the common pleas court stated in regard to Brown's motion to strike: 

At the September 24, 2021 hearing, [Brown] made no objection 

to the appearance of Scott Collister on behalf of [Deere]. 

Frankly, he has no grounds to object. Mr. Collister was there as 

a representative of [Deere], not [Brown]. "One lawyer may 

appear for another at a motion hearing without changing the 

designation of the attorney in charge. Furthermore, the 

requirements to withdraw or substitute counsel are to protect the 

attorney's own client, not the opposing party." [Archie v. 

Lynaugh, 2000 Tex. App. LEXIS 7629, *7-*8 (Nov. 9, 2000)]. As 

pointed out in [Deere's] brief in opposition to [Brown's] motion to 

strike, it is common practice for attorneys to cover hearings in 

cases where they are not the attorney of record when that 

attorney of record is unavailable.

{¶ 12} The common pleas court then stated in regard to Deere's motion for default 

judgment against Brown, "[t]he court finds that default judgment against [Brown] is 

warranted on the issue of damages because the defendant never asked for leave to file an 

answer out of time and his failure to file was not due to excusable neglect." The common 

pleas court also found "[Brown's] untimely-filed answer is not in good form and substance, 

but rather represents a delaying tactic of attempting either a dismissal or second case 

transfer, while acknowledging the existence of the loan contract between [Deere] and 

[Brown]." Later explaining why that was, the common pleas court stated:
Clermont CA2021-12-069

- 6 -

In the case at bar, [Brown] is a pro se litigant. * * * While 

recognizing that [Brown] is allowed reasonable leeway in his 

pleadings, in the case at bar he is clearly demonstrating by his 

conduct and pleadings that any additional leeway at this time 

would be unreasonable. For example, if, in fact [Brown] did not 

receive a copy of the motion for default judgment that [Deere's]

attorney certified was mailed to [him] when filed, then he 

certainly was aware of the motion when he received the 

notification of hearing date card from the clerk of courts for the 

default hearing originally scheduled for August 20, 2021. At the 

default hearing, which was continued to September 24, 2021, 

[Brown] stated that he had received this notification of hearing 

card. After that hearing, instead of stopping by the clerk's office 

on his way out of the courthouse for a copy of the motion, 

[Brown] waited a full week and filed his "Document Request" for 

copies of the motion and complaint.

(Emphasis deleted.) Concluding, the common pleas court entered judgment against Brown 

in favor of Deere in the requested amount of $37,959.77, plus interest at a rate of 2.9% per 

annum, and court costs.

Brown's Appeal and Single Assignment of Error

{¶ 13} On December 15, 2021, Brown filed a timely notice of appeal from the 

common pleas court's decisions denying his motion to strike and granting Deere's motion 

for default judgment. Oral argument was thereafter held before this court on May 9, 2022. 

Brown's appeal now properly before this court for decision, Brown has raised the following 

single assignment of error for review.

{¶ 14} THE TRIAL COURT ERRED WHEN IT GRANTED DEERE & COMPANY'S 

MOTION FOR DEFAULT JUDGMENT AND DENIED JASON M. BROWN'S MOTION TO 

STRIKE.

{¶ 15} In his single assignment of error, Brown argues the common pleas court erred 

by denying his motion to strike and by granting Deere's motion for default judgment. We 

disagree.

Brown's Motion to Strike
Clermont CA2021-12-069

- 7 -

{¶ 16} "The determination of a motion to strike is within the trial court's broad 

discretion." Bank of N.Y. Mellon v. Putman, 12th Dist. Butler No. CA2012-12-267, 2014-

Ohio-1796, ¶ 9, citing Ireton v. JTD Realty Invests., L.L.C., 12th Dist. Clermont No. CA2010-

04-023, 2011-Ohio-670, ¶ 19. Because of this, "[a]n appellate court reviews a trial court's 

decision granting or denying a motion to strike under an abuse-of-discretion standard of 

review." New Residential Mtge. LLC v. Barnes, 12th Dist. Warren No. CA2020-04-027, 

2020-Ohio-6907, ¶ 16. An abuse of discretion is more than an error of law or judgment. 

First Horizon Homes Loans v. Sims, 12th Dist. Warren No. CA2009-08-117, 2010-Ohio847, ¶ 11. An abuse of discretion implies the common pleas court's attitude was 

unreasonable, arbitrary, or unconscionable. Complete Lawn Servs. v. Chimney Hill, LLC, 

12th Dist. Butler No. CA2015-08-149, 2016-Ohio-997, ¶ 21. "Under this standard, an 

appellate court may not substitute its judgment for that of the trial court." Figetakis v. My 

Pillow, 9th Dist. Summit No. 29843, 2022-Ohio-1078, ¶ 16, citing Blakemore v. Blakemore, 

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

{¶ 17} Brown argues it was error for the common pleas court to deny his motion to 

strike all of the statements and arguments advanced by Attorney Collister at the September 

24, 2021 hearing on Deere's motion for default judgment. This is because, according to 

Brown, it was only the attorney of record, Attorney Voorhees, or another attorney with whom 

Attorney Voorhees worked with at Weltman, Weinberg & Reis Co., L.P.A., who could enter 

an appearance at that hearing and make arguments on Deere's behalf. However, as the 

record indicates, Brown never objected to Attorney Collister entering an appearance on 

Deere's behalf at the September 24, 2021 hearing until ten days after that hearing 

concluded on October 4, 2021. But, even if Brown had initially objected to Attorney 

Collister's appearance, Brown cannot demonstrate any resulting prejudice therefrom. This 

is particularly true here when considering Brown did not provide this court with a transcript 
Clermont CA2021-12-069

- 8 -

of the September 24, 2021 hearing at issue. Under these circumstances, this court must 

presume the regularity of those proceedings of which Brown now complains.

{¶ 18} In so holding, we note our agreement with the common pleas court's decision 

finding Brown did not have any grounds to object to Attorney Collister appearing and 

arguing on Deere's behalf at the September 24, 2021 hearing. This is because, just as the 

common pleas court stated when denying Brown's motion to strike, "Mr. Collister was there 

as a representative of [Deere], not [Brown]." We also note our agreement with the common 

pleas court's decision finding it common practice for attorneys to cover hearings in cases 

where they are not the attorney of record when the attorney of record is otherwise 

unavailable. For Brown, a pro se litigant, to claim otherwise is simply incorrect and serves 

as yet another example of Brown's misunderstanding of the way properly licensed attorneys 

practice law within this district, this state, and across this country. Therefore, finding no 

error, Brown's first argument alleging the common pleas court erred by denying his motion 

to strike lacks merit.

Deere's Motion for Default Judgment

{¶ 19} "Default judgments are not favored in the law." Engelhart v. Bluett, 1st Dist. 

Hamilton No. C-160189, 2016-Ohio-7237, ¶ 19. This is because granting a default 

judgment is analogous to granting a dismissal. Freedom Mortg. Corp. v. Petty, 8th Dist. 

Cuyahoga No. 95834, 2011-Ohio-3067, ¶ 50. "This reasoning lies in their origins being 

rooted in procedure-based technicalities, rather than the submission of adequate evidence, 

triggering liability." Edgecomb v. Toledo Nights, Inc., 6th Dist. Lucas No. L-19-1022, 2019-

Ohio-5274, ¶ 12. Therefore, because granting a default judgment is considered a harsh 

remedy that is generally disfavored in the law, "[w]hen possible, cases should be decided 

on their merits rather than on procedural grounds." Pitts v. DiLabbio, 6th Dist. Lucas No. 

L-12-1343, 2013-Ohio-3854, ¶ 8, citing Fowler v. Coleman, 10th Dist. Franklin No. 99AP-
Clermont CA2021-12-069

- 9 -

319, 1999 Ohio App. LEXIS 6480 (Dec. 28, 1999).

{¶ 20} "Default judgments are governed by the defining and notice provisions of 

Civ.R. 55(A)." Northland Ins. Co. v. Poulos, 7th Dist. Mahoning No. 06 MA 160, 2007-Ohio7208, ¶ 42. As noted above, Civ.R. 55(A) provides:

When a party against whom a judgment for affirmative relief is 

sought has failed to plead or otherwise defend as provided by 

these rules, the party entitled to a judgment by default shall 

apply in writing or orally to the court therefore; but no judgment 

by default shall be entered against a minor or an incompetent 

person unless represented in the action by a guardian or other 

such representative who has appeared therein. If the party 

against whom judgment by default is sought has appeared in 

the action, he (or, if appearing by representative, his 

representative) shall be served with written notice of the 

application for judgment at least seven days prior to the hearing 

on such application.

"An appellate court reviews a trial court's decision to grant or deny a motion for default 

judgment under an abuse-of-discretion standard." Lemasters v. Lemasters, 12th Dist. 

Madison No. CA2018-06-018, 2019-Ohio-4395, ¶ 22, citing Nix v. Robertson, 12th Dist. 

Butler No. CA2012-08-157, 2013-Ohio-777, ¶ 9. 

{¶ 21} Brown argues it was error for the common pleas court to grant Deere's motion 

for default judgment because the letter sent to him by the Clermont County Clerk of Courts 

on April 12, 2021 notifying him that the case had been transferred to Clermont County did 

not comply with Civ.R. 3(D)(3) in that it "failed to inform him that he had twenty-eight days 

from the receipt of the notice to answer in the transferred action." The record is devoid of 

any evidence indicating Brown raised this issue to the common pleas court. This is 

significant given the well-established principle that a party may not raise new issues or legal 

theories for the first time on appeal. BAC Home Loans Servicing, LP v. Mullins, 12th Dist. 

Preble No. CA2013-12-015, 2014-Ohio-4761, ¶ 33.

{¶ 22} However, even when assuming Brown did not waive this issue by raising it for 
Clermont CA2021-12-069

- 10 -

the first time on appeal, the plain language set forth in Civ.R. 3(D)(3) clearly indicates the 

special 28-day notice Brown claims was missing from the Clermont County Clerk of Court's 

letter must be provided to the defendant only "in an action in which the defendant has not 

appeared." The record is clear that Brown "appeared" in this action for purposes of Civ.R. 

3(D)(3) early on by filing a motion to dismiss Deere's complaint for lack of personal 

jurisdiction or, alternatively, improper venue. Therefore, given the record properly before 

this court, Brown's claim the common pleas court erred by granting Deere's motion for 

default judgment because the letter sent to him by the Clermont County Clerk of Courts did 

not comply with Civ.R. 3(D)(3) lacks merit.

{¶ 23} In reaching this decision, we note Brown's claim that he was "under the 

assumption" a new complaint "would be served in the case with the proper case caption 

showing the case was not in Clermont County." Brown also claims that "he was simply 

unaware of the time requirements due to a clerical error by the clerk of courts." However, 

although we allow pro se litigants reasonable leeway in their pleadings, see New Falls Corp. 

v. Pierson, 12th Dist. Clermont No. CA2013-03-023, 2014-Ohio-567, ¶ 6, pro se litigants 

like Brown "are expected, as attorneys are, to abide by the relevant rules of procedure and 

substantive laws, regardless of their familiarity with the law." Fontain v. H&R Cincy Props., 

LLC, 12th Dist. Warren No. CA2021-02-015, 2022-Ohio-1000, ¶ 26. Pro se litigants are 

also "not to be accorded greater rights and must accept the results of their own mistakes 

and errors, including those related to correct legal procedure." Cox v. Zimmerman, 12th 

Dist. Clermont No. CA2011-03-022, 2012-Ohio-226, ¶ 21. Therefore, this court must hold 

Brown "to the same obligations and standards set forth in the appellate rules that apply to 

all litigants." Adena at Miami Bluffs Condominium Owners' Assn., Inc. v. R. Hugh 

Woodward, 12th Dist. Warren No. CA2020-08-044, 2021-Ohio-3872, ¶ 20. 

{¶ 24} Brown also argues it was error for the common pleas court to grant Deere's 
Clermont CA2021-12-069

- 11 -

motion for default judgment because Deere's motion was filed with the common pleas court 

one day later than what was required by Civ.R. 5(D).3 However, just like Brown's prior 

argument related to Civ.R. 3(D)(3) addressed more fully above, the record is also devoid of 

any evidence indicating Brown raised this issue with the common pleas court. But, even 

when again assuming Brown did not waive this issue by raising it for the first time on appeal, 

Brown has failed to establish how he may have been prejudiced by Deere filing its motion 

one day later then what was required by Civ.R. 5(D). Therefore, given the record properly 

before this court, Brown's claim the common pleas court erred by granting Deere's motion 

for default judgment because Deere's motion was filed with the common pleas court one 

day later than what was required by Civ.R. 5(D) lacks merit.

{¶ 25} Brown further argues it was error for the common pleas court to grant Deere's 

motion for default judgment because "[t]he case at hand did not proceed beyond the 

pleading stage," and because he "did not show a complete disregard for the judicial system 

by filing a late answer" when considering Deere had filed "untimely responses" and motions 

that were prejudicial to him. Although couched in slightly different terms, Brown's argument 

is essentially that the common pleas court erred by finding his failure to file a timely answer 

to Deere's complaint was not the result of excusable neglect. We disagree.

{¶ 26} "Civ.R. 6(B)[2] permits a court to extend the time prescribed by the civil rules 

for performing an act upon a showing of excusable neglect." Napier v. Cieslak, 12th Dist. 

Butler No. CA2014-12-242, 2015-Ohio-2574, ¶ 6. Specifically, Civ.R. 6(B)(2) provides:

When by these rules or by a notice given thereunder or by order 

of court an act is required or allowed to be done at or within a 

3. Pursuant to Civ.R. 5(D), "[a]ny paper after the complaint that is required to be served shall be filed with the 

court within three days after service." The purpose of Civ.R. 5(D) is to 'ensure that the opposing party is 

promptly served with filings.'" Carelli v. Canfield Local Sch. Dist. Bd. of Educ., 7th Dist. Mahoning No. 18 MA 

0012, 2019-Ohio-1096, ¶ 26, quoting Sovey v. Lending Group of Ohio, 8th Dist. Cuyahoga No. 84823, 2005-

Ohio-195, ¶ 16. "The rule is not meant be a sanction." Sovey at ¶ 18. The subsequent filing is instead 

considered to be a "secondary act." Nosal v. Szabo, 8th Dist. Cuyahoga Nos. 83974 and 83975, 2004-Ohio4076, ¶17.
Clermont CA2021-12-069

- 12 -

specified time, the court for cause shown may at any time in its 

discretion * * * , or * * * upon motion made after the expiration of 

the specified period permit the act to be done where the failure 

to act was the result of excusable neglect * * *.

{¶ 27} "The determination of whether neglect is excusable or inexcusable must take 

into consideration all the surrounding facts and circumstances." Esken v. Zurich American 

Ins. Co., 12th Dist. Preble No. CA2003-11-022, 2004-Ohio-3668, ¶ 9. Neglect is considered 

inexcusable if the neglect "falls substantially below what is reasonable under the 

circumstances." Zugg v. Wisby, 12th Dist. Warren No. CA2010-08-079, 2011-Ohio-2468, 

¶ 10, citing State ex rel. Weiss v. Indus. Comm., 65 Ohio St. 3d 470, 473 (1992). Neglect 

is also considered inexcusable if the neglect "can be regarded as a 'complete disregard for 

the judicial system.'" Id., quoting Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996). 

"Although excusable neglect cannot be defined in the abstract, the test for excusable 

neglect under Civ.R. 6(B)(2) is less stringent than that applied under Civ.R. 60(B)." State 

ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 466 (1995). 

"Because the court's decision to grant or deny an extension rests within its discretion, a 

reviewing court will not disturb the decision of the lower court absent an abuse of that 

discretion." State ex rel. Doe v. Register, 12th Dist. Clermont No. CA2008-08-081, 2009-

Ohio-2448, ¶ 12. 

{¶ 28} In this case, when taking into consideration all the surrounding facts and 

circumstances presented, we find no error in the common pleas court's decision finding 

Brown's failure to file a timely answer to Deere's complaint was not the result of excusable 

neglect. Just as the common pleas court found, and with which we agree, "defendant's 

untimely-filed answer is not in good form and substance, but rather represents a delaying 

tactic of attempting either a dismissal or second case transfer, while acknowledging the 

existence of the loan contract between the plaintiff and the defendant." Rather than simply 
Clermont CA2021-12-069

- 13 -

filing an answer, Brown's tactics have now delayed the inevitable for over two years. 

Nothing about Brown's conduct in failing to file a timely answer to Deere's complaint can be

considered excusable when Brown's liability on the loan contract/security agreement has 

been so clearly established by the evidence in the record. The common pleas court's 

decision has effectively put a stop to Brown's continued efforts to avoid paying Deere what 

Deere is owed on the loan contract/security agreement at issue. Therefore, given the record 

properly before this court, Brown's claim that the common pleas court erred by finding his 

failure to file a timely answer to Deere's complaint was not the result of excusable neglect 

lacks merit.

Conclusion

{¶ 29} For the reasons outlined above, and finding no merit to any of the arguments 

raised by Brown herein, Brown's single assignment of error lacks merit and is overruled.

{¶ 30} Judgment affirmed.

M. POWELL, P.J., and HENDRICKSON, J., concur.