[Cite as Summers v. Lancia Nursing Homes, Inc. d.b.a. Belmont Manor Nursing Home, 2016-Ohio-7935.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

KAREN J. SUMMERS, AS ) CASE NO. 15 BE 0063

ADMINISTRATRIX, OF THE ) 

ESTATE OF ARLA JOHNSON ) 

) 

PLAINTIFF-APPELLANT, ) 

) 

VS. ) OPINION 

) 

LANCIA NURSING HOMES, INC, ) 

d/b/a BELMONT MANOR NURSING ) 

HOME, et al. ) 

) 

DEFENDANTS-APPELLEES. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Belmont County, Ohio 

Case No. 12-CV-0072 

JUDGMENT: Reverse and Remand. 

JUDGES: 

Hon. Carol Ann Robb 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

Dated: November 25, 2016
[Cite as Summers v. Lancia Nursing Homes, Inc. d.b.a. Belmont Manor Nursing Home, 2016-Ohio-7935.]

APPEARANCES: 

For Plaintiff-Appellant: Atty. Scott Blass 

 Atty. James Stoneking 

Atty. Geoffrey Brown 

Atty. Tyler Smith 

Bordas & Bordas 

1357 National Road 

Wheeling, WV 26003 

For Defendants-Appellees: Atty.Marvin Galvin 

 Reminger Co., L.P.A 

101 Prospect Avenue West 

Suite 1400 

Cleveland, Ohio 44115 

Atty. Thomas Prislipsky 

Reminger Co., L.P.A 

11 Federal Plaza, Suite 1200 

Youngstown, Ohio 44503 

Atty. James Reuss 

Atty Karen Cadieux 

Carpenter Lipps & Leland LLP 

290 Plaza, Suite 1300 

280 High Street 

Columbus, Ohio 43215 

Atty. Patrick Casey 

Atty. D. Kevin Coleman 

Casey & Chapman, PLLC 

1140 Chapline Street 

Wheeling. WV 26003 
[Cite as Summers v. Lancia Nursing Homes, Inc. d.b.a. Belmont Manor Nursing Home, 2016-Ohio-7935.]

ROBB, J. 

{¶1} Plaintiff-Appellant Karen J. Summers, Administratix of the Estate of Arla 

Johnson, appeals the decision of Belmont County Common Pleas Court denying her 

Civ.R. 60(B) motion to vacate the trial court’s ruling on her Civ.R. 59 new trial motion. 

The issue in this case is whether the trial court abused its discretion in denying the 

motion to vacate. For the reasons expressed below, the trial court’s decision is 

reversed and the matter is remanded for an evidentiary hearing on Appellant’s Civ.R. 

60(B) motion. 

Statement of the Case 

{¶2} On February 8, 2012, Appellant filed a medical malpractice and 

wrongful death complaint against Defendants-Appellees Lancia Nursing Homes Inc. 

d/b/a Belmont Manor Inc. (Appellee Belmont Manor), Dr. Carmel C. Shaw-Nieves, 

and Dr. Divakar Sydney Bangera. Decedent Arla Johnson was a resident of 

Appellee Belmont Manor and Drs. Shaw-Nieves and Bangera were her doctors. 

Those doctors prescribed to her atypical antipsychotic medication during her 

residency at Appellee Belmont Manor and from April 26, 2011 to April 30, 2011 she 

fell three times. This resulted in multiple injuries and she died on May 4, 2011. 

{¶3} The case proceeded through discovery. Trial occurred in April 2015. 

For purposes of this appeal, the relevant events that occurred during trial are trifold. 

First, Appellees maintained their interests were not aligned and each were granted 

three peremptory challenges during voir dire. Second, Appellant’s expert witness 

was not permitted to offer live testimony at trial because at the time of trial he was 

retired and no longer devoted half of his time to clinical practice or instruction 

pursuant to Evid.R. 601(D). The court did, however, permit the expert’s deposition 

testimony to be read into the record. Third, files from the state’s long-term care 

ombudsman were deemed privileged in their entirety prior to the start of trial and 

Appellant was not permitted access. However, according to Appellant, Appellees 

used the privileged information by producing three witnesses who testified to facts 

that were contained only in the reports that were withheld from Appellant. 
-2-

{¶4} Following all evidence, the jury returned a defense verdict. 4/28/15 J.E. 

The judgment was entered on May 28, 2015. 

{¶5} Appellant did not file a notice of appeal from the jury verdict. Rather, 

Appellant filed a timely Civ.R. 59 motion for new trial. 6/23/15 Motion. Pursuant to 

App.R. 4(B)(2), the filing of the motion for new trial extended the time to file a notice 

of appeal. App.R. 4(B)(2). The time for filing a notice of appeal from the jury verdict 

and the ruling on the new trial motion began to run when the trial court entered the 

judgment on the motion for new trial. Id. 

{¶6} The basis for the new trial motion was the exclusion of live testimony 

from the expert, the number of peremptory challenges Appellees were permitted, and 

the trial court’s determination that privilege was not waived when Appellees’ 

witnesses testified to facts that were only found in a report that was earlier deemed to 

be privileged and not accessible to Appellant. 6/23/15 Motion. Appellees each filed 

their own motion in opposition to the Civ.R. 59 motion. 7/6/15 Appellee Dr. 

Bangera’s Motion in Opposition; 7/7/15 Appellee Dr. Shaw-Nieves’ Motion in 

Opposition; Appellee Lancia Nursing Homes, Inc., 7/9/15 Appellee Belmont Manor’s 

Motion in Opposition. Appellant filed a combined reply to the motions in opposition. 

7/14/15 Reply. Neither Appellant’s Civ.R. 59 motion, nor her response to opposition 

motions asked for a hearing on the new trial motion. 6/23/15 Motion; 7/14/15 Reply. 

{¶7} The trial court denied the motion on July 21, 2015. The judgment 

indicated the clerk of courts was to serve copies on all parties or their attorneys. That 

direction was initialed. The docket indicated on that same date, the clerk served 

copies by regular mail to James Reuss, Kevin Coleman, Thomas Prislipsky, and 

Scott Blass, the attorneys for Appellees and Appellant. 

{¶8} On August 27, 2015, Appellant filed a motion to vacate based on Civ.R. 

60(B), Civ.R 58, and the court’s inherent authority to vacate judgments. In the 

motion, Appellant claimed counsel did not receive the denial of the motion for a new 

trial. Attached to the motion were affidavits from Attorney Geoffrey Brown and 

Attorney Scott Blass. Both attorneys worked for Bordas & Bordas, PLLC, a law firm 

representing Appellant. Attorney Brown avowed that on August 24, 2015 he did an 
-3-

audit of his open files, and asked Attorneys Stoneking, Smith, and Blass if it would be 

advisable to request a hearing on the motion for new trial. Brown Affidavit paragraph 

7. Attorney Stoneking checked the online docket and discovered the July 21, 2015 

order denying the motion for new trial and the clerk’s notation that Attorney Blass was 

served by regular mail. Brown Affidavit paragraph 8. As a result, Attorney Brown 

talked to Attorney Blass, interviewed his administrative staff, examined the firm’s 

computer files, and examined the firm’s hard copy file to determine if the order was 

received. Brown Affidavit paragraph 10. Based on his investigation, he determined 

the firm did not receive the order; Attorney Blass did not receive it, no copy of the 

order was scanned into the firm’s computer system, and there was no hard copy in 

the file. Brown Affidavit paragraph 11. Attorney Blass avowed he did not receive a 

copy of the order through mail and was unaware of its existence until August 24, 

2015. Blass affidavit paragraph 5. 

{¶9} Appellee Belmont Manor filed a motion in opposition to the motion to 

vacate. 9/2/15 Appellee Belmont Manor Motion. Appellees Dr. Bangera and Dr. 

Shaw-Nieves filed separate motions to join in Appellee Belmont Manor’s motion in 

opposition to relief from judgment. 9/3/15 Appellee Dr. Bangera Joinder Motion; 

9/10/15 Appellee Dr. Shaw-Nieves Joinder Motion. 

{¶10} The trial court denied the motion to vacate. 9/2/15 J.E. Appellant 

timely appealed that order. 

Assignment of Error 

“The trial court erred in denying the plaintiff’s motion for relief from judgment 

under Civ.R. 60(B).” 

{¶11} In the trial court proceedings, Appellant sought to vacate the trial court’s 

ruling on the Civ.R. 59 motion on the basis of Civ.R. 60(B), Civ.R. 58, and the trial 

court’s inherent authority. On appeal, Appellant solely focuses on Civ.R. 60(B). 

{¶12} The Supreme Court of Ohio held that in order to prevail on a Civ.R. 

60(B) motion, the movant must demonstrate: (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 
-4-

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 Electric Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 

113 (1976), paragraph two of the syllabus. A movant must establish all three of 

these requirements to obtain relief from judgment. State ex rel. Richard v. Seidner, 

76 Ohio St.3d 149, 151, 666 N.E.2d 1134 (1996). 

{¶13} A motion for relief from judgment under Civ.R. 60(B) lies in the trial 

court's sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 514 N.E.2d 1122 (1987). 

To constitute an abuse of discretion the trial court's decision must be unreasonable, 

arbitrary or unconscionable, and not merely an error of law or judgment. Blakemore 

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

{¶14} The resolution of a Civ.R. 60(B) motion requires consideration of two 

competing principles: the principles of finality and perfection. Knapp v. Knapp, 24 

Ohio St.3d 141, 144, 493 N.E.2d 1353 (1986). Finality requires each lawsuit end at 

some point, thus producing certainty and public confidence in the judicial system's 

ability to resolve disputes. Id. at 144-145. Perfection requires that every case be 

litigated until a perfect result is achieved. Id. at 145. The Ohio Supreme Court has 

stated the purpose of Civ.R. 60 is to afford “relief in the interest of justice.” Blasco v. 

Mislik, 69 Ohio St.2d 684, 687-688, 433 N.E.2d 612 (1982). Any doubt should be 

resolved in favor of the motion to vacate so that cases may be decided on the merits. 

GTE Automatic Electric at 151. 

{¶15} The case before us is not a typical Civ.R. 60(B) case. This is not a 

case where a party failed to answer, appear, or file a timely response. This is not a 

case where the case was decided on a procedural aspect, rather than on the merits. 

This is not a case where a party did not get their day in court. This case proceeded 

to a full trial that lasted roughly five days. The jury returned a defense verdict. A 

timely motion for new trial was filed. Appellees timely responded and Appellant filed 

a reply. The trial court denied the motion for new trial after considering those filings. 

Counsel for Appellant claims he did not receive the mailed copy of the judgment 

denying the motion for new trial. Counsel assets when he did finally become aware 
-5-

of the judgment his 30 day time limit to appeal the jury verdict and motion for new trial 

ruling had expired. In the motion to vacate, Appellant acknowledged the motion to 

vacate was not made so the trial court could reconsider its ruling, but rather to enable 

Appellant to perfect an appeal: 

Specifically, the plaintiffs request an Order finding that the requirements 

of Civ.R. 58(B) were not complied with, and that they were not served 

with a copy of the July 21 Order. Furthermore, the plaintiffs ask the 

court to vacate the July 21 Order and prepare a new Order, which can 

then be entered and served pursuant to Civ.R. 58(B). In this way, the 

plaintiffs’ appeal rights will be fully protected. 

8/27/15 Motion to vacate. 

{¶16} Appellees assert below and on appeal that there was compliance with 

Civ.R. 58, and as such, “[t]he failure of the clerk to serve notice does not affect the 

validity of the judgment or the running of the time for appeal except as provided in 

App. R. 4(A).” Civ.R. 58(B). It appears Appellees are of the position that relief under 

Civ.R. 60(B) is not applicable in this instance. 

{¶17} Ohio Appellate Rule 4(A) states an appeal from a final order must be 

filed within 30 days of the entry. App.R. 4(A)(1). Subsection (3) indicates that in a 

civil case, “if the clerk has not completed service of the order within the three-day 

period prescribed in Civ.R. 58(B), the 30-day periods referenced in App.R. 4(A)(1) 

and 4(A)(2) begin to run on the date when the clerk actually completes service.” 

App.R. 4(A)(3). Civ.R. 58(B) provides within three day of entering the judgment, the 

clerk must serve the parties in a manner prescribed by Civ.R. 5(B) and note the 

service on the docket. Civ.R. 58(B). The final sentence of the section states, “The 

failure of the clerk to serve notice does not affect the validity of the judgment or the 

running of the time for appeal except as provided in App. R. 4(A).” Civ.R. 58(B). 

Under Civ.R. 5(B) service is completed upon mailing the order to the person’s last 

known address by United States mail. Civ.R. 5(B)(2)(c). 

{¶18} Appellant asserts the affidavits attached to the motion to vacate 

indicating counsel did not receive the denial of the motion for new trial is 
-6-

“circumstantial proof that the clerk did not comply with its duty under Civ.R. 58.” 

Appellate Brief. This court finds no merit with that argument. 

{¶19} It is undisputed that the docket contains notations compliant with Civ.R. 

58. On July 21, 2015, the trial court entered the order denying the motion for new 

trial. The clerk on that same date noted on the docket the entry was sent by regular 

mail to Attorney Scott Blass. The address listed on the docket is the address listed 

on all court documents. Therefore, despite Appellant’s contention to the contrary, the 

record in this instance indicates the clerk complied with Civ.R. 58(B). 

{¶20} Ohio Supreme Court case law indicates the actions taken by the clerk 

complied with Civ.R. 58(B). State ex rel. Smith v. Fuerst, 89 Ohio St.3d 456, 732 

N.E.2d 983 (2000). In that case, Smith filed a mandamus action against the clerk of 

courts seeking to have the court order the clerk to comply with Civ.R. 58(B). Smith 

claimed that although the docket showed he was mailed the order denying him postconviction relief, he did not receive the order. He provided evidence from the 

penitentiary where he was housed showing he did not receive any legal mail the 

month the notice was mailed. The Ohio Supreme Court explained: 

Fuerst [Clerk of Courts] mailed notice of the October 17, 1996 entry to 

Smith. Under Civ.R. 5(B), service was complete upon mailing. And 

Fuerst noted in the docket that service had been made. Therefore, 

Fuerst complied with his duty to serve the entry on Smith, and 

mandamus will not issue to compel an act that has already been 

performed. 

Citation omitted. Id. at 457. 

{¶21} Although Appellant may not have received the mailing, that does not 

provide proof the clerk did not comply with Civ.R. 58, especially when the docket 

indicates there was compliance. State ex rel. Smith v. Fuerst, 8th Dist. No. 77325, 

2000 WL 146531 (Feb. 10, 2000) (“The fact that relator's evidence indicates he may 

not have received the notice does not demonstrate that the clerk of court failed to 

comply with the duty to send the notice.”). Appellant fails to acknowledge that 

between the clerk placing the judgment in the mail and entering a notation on the 
-7-

docket, and Appellant receiving the mail there is another intervening force, the United 

States Postal Service. The clerk’s duty ended upon mailing the judgment and 

entering a notation on the record. The rules do not require the clerk to ensure the 

mail actually arrives at the party’s place of business or home. Sometimes letters get 

lost in the mail and when they do that does not mean the clerk failed to perform its 

duty. 

{¶22} Appellant also cites this court to DeFini v. Broadview Hts. for the 

proposition that the affidavits from Appellant’s counsel demonstrate the clerk did not 

comply with Civ.R. 58(B). 76 Ohio App.3d 209, 601 N.E.2d 199 (8th Dist.1991). This 

court disagrees; the case at hand does not align with DeFini to the extent Appellant 

claims. In DeFini, the court of common pleas granted summary judgment on August 

28, 1989. Id. at 212. The court's judgment entry was journalized on August 29, 

1989. Id. The clerk of courts never entered the judgment into the court's computer 

journal until November 24, 1989. Id. A post card notice was allegedly sent out after 

the judgment was entered in the court’s computers. Id. That notice was not received 

by DeFini until November 28, 1989. Id. DeFini filed a Civ.R. 60(B) motion, which 

was granted. Id. Following the reentering of the summary judgment order, DeFini 

appealed the trial court’s grant of summary judgment for Broadview Heights and 

Broadview Heights filed a cross appeal claiming the common pleas court erred in 

granting the motion to vacate. 

{¶23} The appellate court in DeFini discussed App.R. 4, Civ.R 58 and Civ.R 

60(B) at length. It held the trial court properly granted the Civ.R. 60(B) motion, but in 

making that holding it also acknowledged Civ.R. 60(B) was not needed to preserve 

DeFini’s appeal rights; “[O]n the authority of App.R. 4(A), it was not necessary to file 

a Civ.R. 60(B) motion. Appellant could have filed his notice of appeal within thirty 

days from the date the notice of the trial court's judgment was served on him.” Id. at 

214. Thus, in DeFini, Civ.R. 60(B) was not needed to ensure DeFini’s right to appeal 

the summary judgment for Broadview Heights; the time to appeal did not begin to run 

until actual service since the clerk did not mail the notice within three days pursuant 

to Civ.R. 58(B). 
-8-

{¶24} Regardless, DeFini addressed Civ.R. 60(B) and held there was no 

abuse of discretion in granting the motion. However, that case is factually 

distinguishable. In finding the motion to vacate was properly granted, the appellate 

court noted an affidavit by Linda Graves, an employee of the common pleas’ Central 

Scheduling Department. Id. She avowed: 

I escorted Mr. Heffernan [counsel for appellant] to the first floor Clerk's 

Office to determine whether or not a post card notice had been issued 

on that ruling. 

* * * 

4. After having checked the computer entries, the microfiche records 

pertaining to post card mailing notices, and the civil post card proof 

sheet, an official record of the Common Pleas Court of Cuyahoga 

County, I determined that no mail service had been issued on that 

ruling. 

Id. 

{¶25} In the instant case, there is no affidavit from the clerk indicating notice 

was not sent. The docket here indicates notice was sent. Appellant’s affidavits do 

not refute the docket like the clerk’s affidavit in DeFini did. As explained above, the 

clerk’s job is completed when the notice is mailed and such mailing is noted on the 

docket. The clerk does not ensure actually delivery. 

{¶26} Despite those distinctions and language in App.R. 4 and Civ.R. 58(B), 

the Ohio Supreme Court has held Civ.R. 60(B) is the proper avenue to attack a 

judgment when the claim is a party did not receive notice. Fuerst, 89 Ohio St.3d at 

457. See also Frazier v. Cincinnati School of Med. Massage, 1st Dist. No. C-060359, 

2007-Ohio-2390, ¶ 4 (a Civ.R. 60(B) motion is the proper remedy when the clerk 

serves notice, but a party claims not to have received it-the motion might well involve 

an evidentiary hearing.). As aforementioned, in Fuerst, Smith filed a mandamus 

action against the clerk of courts seeking to have the court order the clerk to re-serve 

the notice that he did not receive. Fuerst. The docket in Fuerst indicated the clerk 
-9-

had served the notice in compliance with Civ.R. 58. Id. In addition to stating 

mandamus does not lie to compel an act already performed, the Ohio Supreme Court 

explained, “Smith had adequate remedies at law by a Civ.R. 60(B) motion for relief 

from judgment or appeal to raise his claim that he was entitled to additional time to 

perfect his appeal from the October 17, 1996 judgment.” Fuerst. In the Eighth 

District Court decision in Fuerst, the court stated the adequate remedy lies through 

the use of Civ.R. 60(B)(5) to raise the issue of failing to receive notice of a final 

judgment which prevented a timely appeal. State ex rel. Smith v. Fuerst, 8th Dist. 

No. 77325, 2000 WL 146531 (Feb. 10, 2000). 

{¶27} Consequently, a party claiming it did not receive notice of the judgment, 

even though there was compliance with Civ.R. 58(B), may attack the judgment 

through a Civ.R. 60(B) motion. Appellant’s use of a Civ.R. 60(B) motion in this 

instance was permitted. 

{¶28} Since Civ.R. 60(B) is the proper means to attack the July 21, 2015 

denial of the motion for new trial, we must now determine whether the three prongs of 

Civ.R. 60(B) have been met. As aforementioned, the GTE requirements for a Civ.R. 

60(B) are: (1) the movant has a meritorious defense or claim to present if relief is 

granted; (2) the movant 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 

Electric Inc., 47 Ohio St.2d 146, paragraph two of the syllabus. All three 

requirements must be found before the movant is entitled to relief. 

{¶29} The third requirement, time, is easily met here. The trial court denied 

the motion for new trial on July 21, 2015. Appellant’s time to appeal that judgment 

and the jury verdict began to run at that point in time. Thus, Appellant’s notice of 

appeal was required to be filed by August 20, 2015. Counsel for Appellant avers he 

did not find out about the trial court’s order until the online docket was checked on 

August 24, 2015. The motion to vacate was filed three days later on August 27, 

2015. Thus, the motion was timely. 
-10-

{¶30} The first requirement of Civ.R. 60(B) is a meritorious defense. It has 

been explained, a meritorious defense means a defense “going to the merits, 

substance, or essentials of the case. * * * Relief from a final judgment should not be 

granted unless the party seeking such relief makes at least a prima facie showing 

that the ends of justice will be better served by setting the judgment aside. * * *.” 

(Citations omitted.) GMAC Mortgage, L.L.C. v. Herring, 189 Ohio App.3d 200, 2010–

Ohio–3650, 937 N.E.2d 1077, ¶ 32 (2d Dist.). 

{¶31} Here, the motion to vacate asserted the same three arguments set 

forth in the new trial motion - the exclusion of live testimony from the expert, the 

number of peremptory challenges Appellees were permitted, and the trial court’s 

determination that privilege was not waived when Appellees’ witnesses testified to 

facts that were only found in a report that was earlier deemed to be privileged and not 

accessible to Appellant. Appellees claim there is no merit with these arguments. 

{¶32} Under Civ.R. 60(B), a movant's burden is only to allege a meritorious 

defense, not to prove that he will prevail on that defense. Rose Chevrolet, Inc. v. 

Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). Each of the issues raised are 

legal issues, not factual. If those arguments are deemed meritorious and not 

harmless, Appellant would be entitled to a new trial. Merely alleging them is 

adequate to meet a meritorious defense in this instance. 

{¶33} Furthermore, whether Appellant will prevail on those arguments on 

appeal is secondary to whether Appellant will be able to exercise the right to appeal. 

This is a right that cannot be deprived without due process and may constitute part of 

the meritorious defense. The Ohio Supreme Court has explained: 

The hypothesis underlying any requirement of reasonable notice is that 

the right to appeal is a property interest that cannot be denied without 

due process of law. While the United States Supreme Court has long 

held that a “right” to appeal is not found in the Constitution, McKane v. 

Durston (1894), 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867, the court has 

also held that where a state provides a process of appellate review, the 

procedures used must comply with constitutional dictates of due 
-11-

process and equal protection. Griffin v. Illinois (1956), 351 U.S. 12, 18, 

76 S.Ct. 585, 590, 100 L.Ed. 891. 

The Ohio Constitution does not specifically provide for a “right” to 

appeal. Section 3(B)(1)(f), Article IV of the Constitution provides, 

however, for the establishment of an appellate court system with 

jurisdiction “[i]n any cause on review as may be necessary to its 

complete determination.”6 Further, R.C. 2505.03, at the time relevant 

herein, provided that “[e]very final order, judgment, or decree of a court 

* * * may be reviewed * * * unless otherwise provided by law * * *.” In 

addition, Ohio has adopted Appellate Rules that make every litigant 

entitled to “[a]n appeal as of right * * * by filing a notice of appeal * * * 

within the time allowed * * *.” App.R. 3(A). 

By developing a process of appellate review, states provide litigants 

with a property interest in the right to appeal. Clearly litigants cannot be 

deprived of this right without being granted due process of law. 

Atkinson v. Grumman Ohio Corp., 37 Ohio St.3d 80, 84-85, 523 N.E.2d 851 (1988). 

In that opinion, the Court promulgated the following rules: 

A. Within three days of the entry of any final appealable judgment or 

order, the clerk of courts shall serve a notice of the entry in any manner 

provided in Civ.R. 5, upon every party who is not in default for failure to 

appear. 

B. The clerk shall make a notation in the case docket indicating that the 

required service has been made. 

C. Once the clerk has served notice of the entry and entered the 

appropriate notation in the docket, the notice shall be deemed to have 

been served. The failure of any party to receive such notice shall not 

affect the validity of the judgment or the running of the time for appeal. 
-12-

Id. at 86. 

{¶34} Although there was compliance with these rules, Civ.R. 60(B) is still 

permitted to be used to indicate notice was not received. Fuerst, 89 Ohio St.3d at 

457. Thus, Civ.R. 60(B) can be used as the merit defense in a situation like this, 

where the movant is effectively being denied the right to appeal. Consequently, for 

those reasons, we conclude the first prong in GTE is met. 

{¶35} The second prong of GTE is one of the grounds stated in Civ.R. 

60(B)(1) through (5). In her appellate brief, Appellant claims her ground for relief is 

Civ.R. 60(B)(1) - mistake, inadvertence, surprise or excusable neglect. 

{¶36} It is noted, “[t]here is no bright line test for determining whether a party's 

reasons for failure to enter an appearance constitute mistake, inadvertence, or 

excusable neglect.” LaSalle Natl. Bank v. Mesas, 9th Dist. No. 02CA008028, 2002–

Ohio–6117, ¶ 13. Inadvertence means “[a]n accidental oversight; a result of 

carelessness.” Black's Law Dictionary (9th ed.2009). There is no definitive definition 

of excusable neglect. However, it has been described in the negative; “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), quoting GTE Automatic Elec., Inc., 47 Ohio St.2d at 153. The 

determination of whether neglect is excusable or inexcusable takes into consideration 

all the surrounding facts and circumstances, and courts should be mindful that cases 

should be decided on their merits, rather than procedural grounds. Griffey, 33 Ohio 

St.3d at 79–81. 

{¶37} In this instance, part of the mistake, inadvertence or excusable neglect 

that Appellant claims occurred was by the clerk of courts. She is asserting the notice 

was not mailed (despite the notation indicating otherwise). The mistake, 

inadvertence or excusable neglect contemplated by Civ.R 60(B)(1) is for mistake, 

inadvertence or excusable neglect of the party, not the court. Minear v. Palkovic, 7th 

Dist. Mahoning No. 09-MA-61, 2009-Ohio-6752, ¶ 21 (mistake or inadvertence); 

Genhart v. David, 7th Dist. No. 10 MA 144, 2011-Ohio-6732, ¶ 17 (mistake). 

However, Appellant’s argument also includes mistake, excusable neglect or 
-13-

inadvertence for not knowing of the judgment and/or failing to timely file a notice of 

appeal. Under this reason there is a potential basis for finding that such action, given 

these facts, could fall under Civ.R. 60(B)(1). We have done case reviews setting 

forth when appellate courts have deemed there to be excusable neglect. WFMJ 

Television, Inc. v. AT & T Fed. Systems CSC, 7th Dist. No. 01 CA 69, 2002-Ohio3013, ¶ 19. Excusable neglect has been found where a bookkeeper failed to forward 

the complaint to the appropriate person. Id. citing Sycamore Messenger, Inc. v. 

Cattle Barons, Inc., 31 Ohio App.3d 196, 509 N.E.2d 977 (1986). Excusable neglect 

was found where service was properly made on a corporation but a corporate 

employee failed to forward the summons and complaint to the appropriate person; 

the president submitted an affidavit stating neither he nor the general manager 

received the summons. WFMJ, citing Hopkins v. Quality Chevrolet, Inc., 79 Ohio 

App.3d 578, 607 N.E.2d 914 (4th Dist.1992). The Tenth Appellate District has also 

found excusable neglect when service is properly obtained on the corporation, but an 

employee fails to properly forward the complaint. WFMJ citing Perry v. General 

Motors Corp., 113 Ohio App.3d 318, 680 N.E.2d 1069 (10th Dist.1996). 

{¶38} The facts of this case could be deemed comparable to those situations. 

In filing the motion for Civ.R. 60(B), Appellant provided affidavits from two attorneys 

indicating the procedure followed after mail is received at the law firm, and both 

attorneys avowed they did not receive the notice in the mail. The actions of the 

attorneys, if believed, do not show a complete disregard for the judicial system. 

Consequently, Civ.R. 60(B)(1) could be applicable if the affidavits from the attorneys 

is believed. 

{¶39} Given the facts of this case, the first and third prongs of the GTE test 

were clearly met. However, the trial court should have held an evidentiary hearing to 

determine whether Civ.R. 60(B)(1) was met, i.e. was the attorneys’ excuse for failing 

to file a timely notice of appeal believable. Admittedly, no request for a hearing was 

made to the trial court. That said, it has been held, “[w]here a timely filed Civ.R. 

60(B) motion alleges operative facts warranting relief, the trial court should grant a 

hearing to take evidence and either discredit or verify those facts before ruling on the 
-14-

motion.” Waterford Tower Condominium Assn. v. TransAmerica Real Estate Group, 

10th Dist. No. 05AP-593, 2006-Ohio-508, ¶ 24. See also, Frazier, 2007-Ohio-2390, 

at ¶ 4 (a Civ.R. 60(B) motion is the proper remedy when the clerk serves notice, but a 

party claims not to have received it - the motion might well involve an evidentiary 

hearing.). The Tenth Appellate District has further stated, “when a Civ.R. 60(B) 

motion, though unsupported by evidentiary materials, sets forth with sufficient 

specificity facts that, if true, would justify relief, the trial court abuses its discretion if it 

overrules such a motion without sua sponte conducting an evidentiary hearing.” 

Waterford Tower Condominium Assn. citing Your Financial Community of Ohio, Inc. 

v. Emerick, 123 Ohio App.3d 601, 608 (10th Dist.1997). We agree with our sister 

district and hold, given the facts of this case, the trial court abused its discretion in 

failing to sua sponte hold an evidentiary hearing prior to ruling on Appellant’s Civ.R. 

60(B) motion. 

{¶40} Therefore, for all of the reasons expressed above, the sole assignment 

of error has merit. The trial court’s denial of the Civ.R. 60(B) motion is reversed and 

the matter is remanded for an evidentiary hearing. 

Waite, J., concurs. 

DeGenaro, J., concurs.