[Cite as Univ. Hts. v. Allen, 2019-Ohio-2908.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

CITY OF UNIVERSITY HEIGHTS, : 

 Plaintiff, : 

 No. 107211 

 v. : 

 

TYREE ALLEN, : 

 

 Defendant. : 

[Appeal by U.S. Specialty Insurance : 

Corporation and Surety Corp. of America] 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: July 18, 2019 

 

Appeal from the Shaker Heights Municipal Court 

Case No. 17 TRC 00061 

 

Appearances: 

Percy Squire Co., L.L.C., and Percy Squire, for appellants 

U.S. Specialty Insurance Corporation and Surety Corp. of 

America. 

C. Randolph Keller, Shaker Heights Chief Prosecutor, for 

Shaker Heights Municipal Court. 

 

ANITA LASTER MAYS, J.: 

Defendants-appellants, U.S. Specialty Insurance Corporation and 

Surety Corp. of America (“Specialty”), appeal the trial court’s denial of Specialty’s 
motion to vacate the bond forfeiture judgment and relief from liability by the Shaker 

Heights Municipal Court. We affirm the trial court’s judgment. 

I. Background and Facts 

On March 29, 2017, in the underlying case, Tyree A. Allen (“Allen”) 

was charged with operating a vehicle under the influence of alcohol (“OVI”) and slow 

speed under the corresponding municipal ordinances by the city of University 

Heights. Also, on that date, Specialty posted a $10,000 surety bond. 

On September 13, 2017, the slow speed charge was dismissed, and 

Allen pleaded guilty to OVI. On October 5, 2017, Allen was ordered to obtain an 

alcohol and drug assessment. On December 7, 2017, the trial court issued a journal 

entry setting the sentencing hearing for December 27, 2017. Allen failed to appear 

at the hearing. On January 5, 2018, the trial court issued an order documenting the 

December 27, 2017 failure to appear. The order also states that the $10,000 bond 

was forfeited and a show cause hearing regarding the forfeiture was set for 

March 28, 2018. The order further included the issuance of a contempt-of-court 

warrant with a $7,500 bond pursuant to R.C. 2705.02. 

The warrant was not issued until January 31, 2018. Also, on 

January 31, 2018, 26 days after Allen’s failure to appear for sentencing was 

journalized, the bond forfeiture show cause hearing notification containing a 

hearing date of March 28, 2018, was mailed to Allen, Specialty, and Deed Carroll 

(“Carroll”) who was listed as the bonding agency and as Specialty’s attorney in fact. 

Specialty, Carroll, and Allen failed to appear for the bond forfeiture hearing on 
March 28, 2018. On March 29, 2018, the trial court issued a $10,000 bond 

forfeiture judgment against Specialty and Carroll for failure to produce Allen. On 

April 11, 2018, the invoice and notice of bond forfeiture judgment was entered 

requiring payment of the judgment by June 29, 2018. 

On April 19, 2018, Carroll, through counsel and as agent and 

representative of Specialty, filed a motion to vacate the bond judgment and 

requested relief from liability. The motion advised that Allen failed to appear at the 

sentencing hearing on January 5, 2018, because he was incarcerated in the 

Cuyahoga County Jail. Carroll included a letter of incarceration issued by the 

Cuyahoga County Sheriff on April 16, 2018, that stated Allen “was incarcerated in 

the Cuyahoga County Jail from: [December 13, 2017] thru [January 19, 2018], TOT 

Halfway H./Harbor Light.” Letter of incarceration (Apr. 16, 2018). A copy of the 

Cleveland Police Department’s case information form documenting Allen’s arrest, 

and the court’s sentencing entry for Allen’s plea to attempted drug possession on 

December 26, 2017, was also provided. 1

 A summary entry denying the motion was issued by the Shaker 

Heights Municipal Court on April 20, 2018. On May 9, 2018, the instant appeal was 

filed.2 On May 29, 2018, Specialty filed a separate motion under Civ.R. 60(B) 

requesting relief from the March 29, 2018 and April 11, 2018 judgments on the 

 1 Cuyahoga C.P. No. CR-17-622237-A. 

2 Notice of forfeiture was sent to Specialty on April 11, 2018. The appeal is timely 

under App.R. 3 and 4. 
ground that Specialty was not provided timely notification of the forfeiture pursuant 

to R.C. 2937.36. On May 30, 2018, this court granted Specialty’s request to remand 

the appeal to the trial court to allow the court to rule on the pending motion to vacate 

the judgment. 

On June 25, 2018, the trial court denied Specialty’s motion to vacate. 

The trial court pointed out that Allen, Specialty, and Carroll failed to request 

continuances and failed to appear at the March 28, 2018 hearing. In addition, the 

court noted that, based on the documentation provided, Allen was not incarcerated 

on March 28, 2018. 

II. Discussion 

While the amended notice of appeal in this case challenges the legality 

of the forfeiture judgment and the motion to vacate that judgment under 

Civ.R. 60(B), Specialty’s sole assignment of error in this case states: 

The trial court erred when it denied appellant’s motion to vacate for the 

reason that R.C. 2937.36 bars forfeiture if the surety is not given notice 

within fifteen days following a defendant’s failure to appear. 

A. Standard of Review 

We apply an abuse of discretion standard to our review of the trial 

court’s denial of a Civ.R. 60(B) motion to vacate a judgment. Bank of New York v. 

Elliot, 8th Dist. Cuyahoga Nos. 97506 and 98179, 2012-Ohio-5285, ¶ 25, citing 

Benesch, Friedlander, Coplan & Aronoff, L.L.P. v. Software, Inc., 8th Dist. 

Cuyahoga No. 91708, 2009-Ohio-1617, ¶ 13. “‘The term ‘abuse of discretion’ implies 
that the court’s attitude was unreasonable, arbitrary, or unconscionable.’” Id., 

quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 3 

B. Analysis 

 Civ.R. 60(B) states, 

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. 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. 

A movant must establish any one of the three requirements to prevail 

on a motion for relief from judgment under Civ.R. 60(B): 

(1) a meritorious defense or claim to present if relief is granted; 

(2) entitlement to relief under one of the grounds stated in 

Civ.R. 60(B)(1) through (5); and (3) the timeliness of the motion. GTE 

Automatic Elec., Inc. v. ARC Industries, 47 Ohio St.2d 146, 150-151, 351 

N.E.2d 113 (1976). The failure to establish any one of these 

requirements will result in the denial of the motion. 

Obloy v. Sigler, 8th Dist. Cuyahoga No. 101672, 2015-Ohio-877, ¶ 10, citing Rose 

Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). 

 3 A trial court’s forfeiture determination is also reviewed for an abuse of discretion. 

Youngstown v. Edmonds, 2018-Ohio-3976, 119 N.E.3d 946 (7th Dist.). 
Here, Specialty claims that the judgment is void because R.C. 2937.36 

effectively serves as a statute of limitations. Specialty argues that the failure to issue 

the notice within the 15-day statutory period divested the trial court of jurisdiction 

to proceed. 

“When a party claims that a judgment is void, that party need not 

comply with Civ.R. 60(B). Instead, a trial court retains inherent 

authority to vacate a void judgment.” Blaine v. Blaine, 4th Dist. 

Jackson No. 10CA15, 2011-Ohio-1654, ¶ 17; see also Pryor v. Pryor, 4th 

Dist. Ross No. 11CA3218, 2012-Ohio-756, ¶ 5-8 (treating motion to 

vacate divorce decree as a motion to set aside a void judgment and not 

conducting Civ.R. 60(B) analysis). “When a party incorrectly seeks 

relief under Civ.R. 60(B) in an attempt to vacate a void judgment, a 

court will ‘treat the motion as a common law motion to vacate or set 

aside the judgment * * *.’” Blaine at ¶ 17, quoting Beachler v. Beachler, 

12th Dist. Preble No. CA2006-03-007, 2007-Ohio-1220, ¶ 19. 

Cochenour v. Cochenour, 4th Dist. Ross No. 13CA3420, 2014-Ohio-3128, ¶ 14. A 

motion to vacate or set aside an allegedly void judgment is also reviewed for an abuse 

of discretion. Adams v. McElroy, 8th Dist. Cuyahoga No. 105399, 2018-Ohio-89, 

¶ 12. 

“A final judgment of forfeiture of a recognizance surety bond has two 

steps.” Edmonds, 2018-Ohio-3976, 119 N.E.3d 946, at ¶ 13. First, there is “an 

adjudication of bail forfeiture under R.C. 2937.35.” Id. Secondly, there is a “bond 

forfeiture show cause hearing under R.C. 2937.36.” Id. 

R.C. 2937.35 provides: 

Upon the failure of the accused or witness to appear in accordance with 

its terms the bail may in open court be adjudged forfeit, in whole or in 

part by the court or magistrate before whom he is to appear. But such 

court or magistrate may, in its discretion, continue the cause to a later 

date certain, giving notice of such date to him and the bail depositor or 
sureties, and adjudge the bail forfeit upon failure to appear at such later 

date. 

R.C. 2937.36 regulates the forfeiture proceedings and provides in 

pertinent part: 

(C) As to recognizances the magistrate or clerk shall notify the accused 

and each surety within fifteen days after the declaration of the 

forfeiture by ordinary mail at the address shown by them in their 

affidavits of qualification or on the record of the case, of the default of 

the accused and the adjudication of forfeiture and require each of them 

to show-cause on or before a date certain to be stated in the notice, and 

which shall be not less than forty-five nor more than sixty days from 

the date of mailing notice, why judgment should not be entered against 

each of them for the penalty stated in the recognizance. If good cause 

by production of the body of the accused or otherwise is not shown, the 

court or magistrate shall thereupon enter judgment against the sureties 

or either of them, so notified, in such amount, not exceeding the penalty 

of the bond, as has been set in the adjudication of forfeiture, and shall 

award execution therefor as in civil cases. The proceeds of sale shall be 

received by the clerk or magistrate and distributed as on forfeiture of 

cash bail. 

R.C. 2937.36(C). 

A surety may be exonerated from failing to produce a defendant 

where good cause is demonstrated. State v. Lott, 2014-Ohio-3404, 17 N.E.3d 1167, 

¶ 9 (1st Dist.), citing State v. Hughes, 27 Ohio St.3d 19, 20, 501 N.E.2d 622 (1986), 

and R.C. 2937.36(C). “A surety may also be exonerated where performance of the 

conditions in the bond is rendered impossible by an act of law” but “the impossibility 

of performance must have been unforeseeable at the time the surety entered into the 

contract.” Id., citing Hughes at 21-22, citing Taylor v. Taintor, 83 U.S. 366, 21 L.Ed. 

287 (1872), and State v. Scherer, 108 Ohio App.3d 586, 594, 671 N.E.2d 545 (2d 

Dist.1995). 
The purpose of R.C. 2937.36(C) is to provide “the surety time to locate 

the defendant prior to the ‘show-cause’ hearing” “to avoid a possible judgment.” 

Lott at ¶ 15. The purpose of the statutory procedures is to afford due process by 

allowing the surety to be heard prior to the forfeiture. State v. Martin, 2d Dist. 

Montgomery No. 21716, 2007-Ohio-3813. 

Indeed, 

The sweep of R.C. 2937.36(C) is broad enough to cover those situations 

where the surety is unaware of the non-appearance of the defendantprincipal until the bond is forfeited. In those situations, the surety has 

a due process expectation of the notice and opportunity to show good 

cause provided for in R.C. 2937.36(C). 

Id. at ¶ 22. 

Ohio appellate courts consider a number of factors in determining 

whether a forfeiture should be upheld but a central theme is whether the surety 

suffered prejudice. Illustrative here is the appellate court’s holding in State v. 

Barnes, 6th Dist. Sandusky No. S-10-025, 2011-Ohio-799. The trial court refused 

the surety’s request to reverse a bond forfeiture because notice was untimely under 

pre-amendment R.C. 2937.36. The statute provided that “a surety shall be notified 

of the show cause forfeiture hearing and that the hearing ‘shall not be less than 

twenty nor more than thirty days from the date of mailing notice.’” (Emphasis 

added.) Id. at ¶ 29, quoting pre-amendment R.C. 2937.36. The notice in Barnes

was issued to the surety less than 20 days from the date of the hearing. 

The appellate court agreed that the timing of the notice was 

noncompliant. “Admittedly, the notice does not comply with the 20-day 
requirement.” Id. at ¶ 30. “However, appellant has failed to demonstrate how she 

was prejudiced by the court’s failure to abide by the rule.” Id., citing Toledo v. Floyd, 

185 Ohio App.3d 27, 2009-Ohio-5507, 923 N.E.2d 159 (6th Dist.) (parties appeared 

at the hearing in spite of the untimeliness of the notice so were not prejudiced); 

State v. Huffman, 6th Dist. Sandusky No. S-10-016, 2010-Ohio-5026. 

 A review of the legislative history provided by Specialty does not 

support the argument that the notification period was determined to be a statutory 

prerequisite for jurisdiction to move forward with the forfeiture proceedings. In 

fact, the Ohio Legislative Service Commission’s final analysis of Am.Sub. H.B. 86 

amending R.C. 2937.36 indicates that the changes to the statute were simply to the 

time periods for notice and hearing. See also the R.C. 2937.36 amendment notes 

which provide that “[t]he 2011 amendment, in the first sentence of (C), inserted 

‘within fifteen days after the declaration of the forfeiture’, substituted ‘forty-five’ for 

‘twenty’ substituted ‘sixty days’ for ‘thirty days’; and made stylistic changes.” 

Specialty has not demonstrated how it was prejudiced by the delayed 

notification in this case. A surety may not fail to take advantage of the procedural 

due process afforded and then claim that the judgment was unlawfully entered. 

Specialty had actual notice of the proceedings yet failed to appear to request 

additional time. 

 In the instant case, the trial court issued the notice 11 days after the 

15-day period provided by the statute. Specialty does not deny receiving notification 

or explain how Specialty was prejudiced by the delay. Instead, Specialty simply 
failed to appear or take other action to protect its rights. We reject Specialty’s 

assertion that the delay in issuing the notice rendered the judgment void and 

divested the trial court of authority to act. 

The appellate court in State v. Worley, 5th Dist. Licking No. 2011 CA 

0067, 2012-Ohio-484, addressed a fact situation similar to that of the instant case. 

The accused failed to appear for a pretrial and a $5,000 bond was forfeited. Id. at 

¶ 3-4. Neither the accused nor the surety appeared at the subsequent show cause 

hearing and a judgment of forfeiture was rendered. No request for a continuance 

was filed. Nine days after the judgment, the surety filed a motion to set aside the 

judgment and discharge the surety under Civ.R. 60(B). The surety discovered that 

the accused had been incarcerated one month prior to the scheduled pretrial, which 

constituted a valid reason for the failure to appear. The trial court denied the 

motion. Id. at ¶ 8. 

The surety argued entitlement to relief based on State v. Yount, 175 

Ohio App.3d 733, 2008-Ohio-1155, 889 N.E.2d 162 (2d Dist.), where the court 

granted a motion to set aside a judgment of bond forfeiture based on the surety’s 

defense that the accused was incarcerated elsewhere. Id. at ¶ 20. The Worley court 

found that Yount was distinguishable because the surety in Yount actually appeared 

at the show cause hearing and advised the trial court of defendant’s incarceration. 

“[The surety in this case] asserts that because of the alleged meritorious defense of 

[the accused’s] incarceration in another county, its nonappearance at the show 
cause hearing is immaterial.” Id. at ¶ 23. “This argument discounts the role of a 

surety and misconstrues the meaning of Civ.R. 60(B).” Id. 

The appellate court continued: 

The Ohio Supreme Court has stated that “the inaction of a defendant is 

not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for 

the judicial system.’” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 

20, 665 N.E.2d 1102 (1996), citing GTE, supra, at 153, 351 N.E.2d 113. 

Excusable neglect has been further defined as some action “not in 

consequence of the party’s own carelessness, inattention, or willful 

disregard of the process of the court, but in consequence of some 

unexpected or unavoidable hindrance or accident.” Emery v. Smith, 

5th Dist. Nos. 2005CA00051 and 2005CA00098, 2005-Ohio-5526, 

¶16, citing Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 536, 706 

N.E.2d 825, fn. 8 (1997). 

Worley, 5th Dist. Licking No. 2011 CA 0067, 2012-Ohio-484, ¶ 24. 

 Finally, the Worley court freely expressed its dismay about the 

surety’s disregard for the judicial system: 

Appellant’s reasoning is circular: it asserts a meritorious defense of [the 

accused’s] incarceration, yet justifies its nonappearance at the show 

cause hearing on the alleged meritorious defense that it failed to assert. 

By this reasoning, the trial court was apparently expected to intuit the 

existence of a meritorious defense because Appellant did not appear to 

present one. Appellant’s argument relies upon Yount’s holding that 

incarceration in another county is a meritorious defense, but appellant 

overlooks the significance of the fact that the Yount surety “apprised 

the trial court at the show cause hearing that she had located [the 

defendant] in [another county],” therefore satisfying the first 

requirement of Civ.R. 60(B). Yount, supra, 737. Under all of the 

circumstances, therefore, the surety’s efforts in Yount did not 

constitute a complete disregard for the judicial system. Id. The same is 

not true in the instant case. 

Id. at ¶ 25. 
In this case, the record reveals that none of the surety parties 

appeared at the hearing. Based on our review of the record, there is no evidence that 

requests were made to have the hearing continued. 

The first attempt to resolve the forfeiture issue occurred one week 

after the invoice and notice to pay was ordered. At that point, Carroll moved to 

vacate the judgment and submitted documentation that Allen was incarcerated and 

unable to appear at the sentencing. Neither the motion to vacate filed by Carroll nor 

Specialty’s motion to vacate addressed the failure of the parties to appear at the show 

cause hearing. “[A] surety has a duty to follow the progress of a defendant’s case.” 

State v. Barnes, 6th Dist. Sandusky No. S-10-025, 2011-Ohio-799, ¶ 28, citing State 

v. Stevens, 30 Ohio St.3d 25, 505 N.E.2d 972 (1987). See also State v. AAA Sly Bail 

Bonds (Jefferson), 5th Dist. Richland No. 17-CA-56, 2018-Ohio-2943. 

 We find that Specialty has failed to demonstrate entitlement to relief 

pursuant to Civ.R. 60(B) based on “excusable neglect or any other reason justifying 

relief from judgment.” Worley, 5th Dist. Licking No. 2011 CA 0067, 2012-Ohio-484, 

¶ 26. Thus, Specialty has failed to satisfy any one of the three required prongs of 

the GTE test and the motion to vacate the judgment was properly denied. Id., citing

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 

(1976). 

We also observe that R.C. 2937.39 contains an additional due process 

protection for a surety dealing with bond forfeiture. It “provides a surety with a 

mechanism for requesting that a court remit all or a portion of a forfeited 
recognizance” bond if the statutory elements are met. State v. Bates, 2017-Ohio4445, 93 N.E.3d 263, ¶ 7 (8th Dist.); AAA Sly Bail Bonds (Jefferson), 5th Dist. 

Richland No. 17-CA-56, 2018-Ohio-2943, ¶ 48 (“a surety may seek remission of the 

forfeiture in the event that the accused subsequently appears, surrenders or is 

rearrested.”) The record does not reflect that Specialty has pursued this remedy. 

We find that Specialty’s assigned error lacks merit. 

III. Conclusion 

The trial court did not abuse its discretion by denying the Civ.R. 60(B) 

motion to vacate the forfeiture judgment. Our analysis of the propriety of the 

Civ.R. 60(B) motion subsumes the propriety of the forfeiture judgment. 

The trial court’s judgments are affirmed. 

It is ordered that Specialty pay the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue of this court directing the Shaker 

Heights 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. 

 

ANITA LASTER MAYS, JUDGE 

MARY J. BOYLE, P.J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR