[Cite as Peoples Bank, Natl. Assn. v. McGhee, 2013-Ohio-3859.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

GALLIA COUNTY 

Peoples Bank, National Association, : Case Nos. 12CA11 

 : 13CA4 

Plaintiff-Appellee, : 

: DECISION AND 

v. : JUDGMENT ENTRY

 : 

Steve McGhee, Inc., et al., : 

 : 

 Defendants-Appellees, : 

 : 

 and : 

 : 

Steve McGhee, Inc., et al., : RELEASED: 09/03/2013 

: 

 Third-Party Plaintiffs-Appellees, : 

 : 

 v. : 

 : 

Spring Valley Properties, Inc., et al., : 

 : 

 Third-Party Defendants-Appellants. : 

______________________________________________________________________ 

APPEARANCES: 

Rebecca D. Louks, OTHS HEISER & MILLER LLC, Wellston, Ohio, for appellants 

Spring Valley Properties, Inc., Matthew Clickenger, and Heather Clickenger. 

Eric. R. Mulford, MULFORD & WISEMAN, LLC, Gallipolis, Ohio, for appellees Steve 

McGhee, Inc. and Steven B. McGhee. 

Jerry E. Peer, Jr., PETERSON, CONNERS, FERGUS & PEER, LLP, Columbus, Ohio, 

for Receiver, New Perspective Asset Management, LLC. 

______________________________________________________________________ 

Harsha, J. 

{¶1} Matthew Clickenger, Heather Clickenger, and Spring Valley Properties, 

Inc. appeal the trial court’s denial of their Civ.R. 60(B) motion for relief from the default 

judgment the court granted Steven B. McGhee and Steve McGhee, Inc. (collectively 

“McGhee”). The Appellants claim the court abused its discretion when it denied their 
Gallia App. Nos. 12CA11 & 13CA4 2 

motion without an evidentiary hearing. We agree. The motion and attached evidentiary 

materials contain sufficient allegations of operative facts to merit a hearing to determine 

whether Civ.R. 60(B) relief is appropriate. Accordingly, we reverse the trial court’s 

judgment and remand for a hearing. This decision renders moot the Appellants’ 

additional arguments about the merits of their Civ.R. 60(B) motion.

I. Facts

{¶2} Peoples Bank, National Association filed a foreclosure complaint against 

McGhee and other defendants who are not pertinent to this appeal. In response, 

McGhee filed an answer, counterclaim, cross claims, and a third-party complaint against 

the Appellants. In the third-party complaint, McGhee made breach of contract and fraud 

claims. McGhee also made allegations related to piercing the corporate veil and 

claimed the Clickengers had personally guaranteed payment of sums due McGhee 

under a land installment contract. Because the Appellants did not answer the thirdparty complaint, McGhee filed a motion for default judgment against them. The trial 

court granted this motion by entry filed on February 14, 2012. The court entered 

judgment against the Appellants, jointly and severally, in the amount of $336,960.19 

plus interest and court costs. 

{¶3} On May 31, 2012, the Appellants filed a Civ.R. 60(B) motion for relief from 

judgment and requested a hearing. The court denied the motion without a hearing in 

December 2012, finding the Appellants “failed to satisfy the three-part test set forth in 

GTE Automatic Electric, Inc. v. ARC Industries, Inc.” The Appellants appealed from this 

entry in appellate case number 12CA11. Subsequently, the trial court issued a nunc pro 

tunc entry, apparently at the Appellants’ request, certifying that there was “no just 
Gallia App. Nos. 12CA11 & 13CA4 3 

reason for delay” of an appeal from its entry denying the Civ.R. 60(B) motion. The 

Appellants filed a notice of appeal from this entry in appellate case number 13CA4. 

Upon their request, we consolidated the appeals. 

II. Assignment of Error 

{¶4} The Appellants assign one error for our review: 

The trial court abused its discretion in overruling the Clickengers’ Civ.R. 

60(B), Motion for Relief from Judgment. 

III. Motion for Relief from Judgment 

{¶5} In their sole assignment of error, the Appellants contend the trial court 

abused its discretion when it overruled their Civ.R. 60(B) motion for relief from 

judgment. Initially, we note that at the time the Appellants filed their motion, it did not 

actually qualify as a Civ.R. 60(B) motion. Civ.R. 60(B) states that a court “may relieve a 

party or his legal representative from a final judgment, order or proceeding * * *.” 

(Emphasis added.) Thus, a Civ.R. 60(B) motion is “proper only with respect to final 

judgments.” Fleenor v. Caudill, 4th Dist. Scioto No. 03CA2886, 2003-Ohio-6513, ¶ 12. 

“If the judgment from which the moving party seeks relief is not final, then the motion is 

properly construed as a motion to reconsider * * *.” Id. at ¶ 13. 

{¶6} Here, the February 2012 default judgment entry did not constitute a final 

order because at the time the court issued it, claims still pended against other parties 

and the court did not certify that there was “no just reason for delay” under Civ.R. 54(B). 

See Jarvis v. Staley, 4th Dist. Washington No. 10CA15, 2012-Ohio-3832, ¶ 9-10. 

Nonetheless, it appears that by the time the trial court actually ruled on the Appellants’ 

motion, the court resolved the remaining claims and a final order did exist. Therefore, 

like the parties and trial court, we will treat the Appellants’ motion as one for relief from 
Gallia App. Nos. 12CA11 & 13CA4 4 

judgment instead of as one for reconsideration. 

{¶7} The Appellants argue in part that the court erred when it denied their 

motion without first conducting an evidentiary hearing. “A party who files a motion for 

relief from judgment under Civ.R. 60(B) is not automatically entitled to a hearing on the 

motion.” Natl. City Home Loan Servs., Inc. v. Gillette, 4th Dist. Scioto No. 05CA3027, 

2006-Ohio-2881, ¶ 15. “We review the trial court’s decision as to whether to conduct an 

evidentiary hearing under an abuse of discretion standard.” Harris v. Harris, 5th Dist. 

Stark No. 2000CA00196, 2001 WL 109128, *3 (Feb. 5, 2001). The phrase “abuse of 

discretion” connotes an attitude on the part of the court that is unreasonable, 

unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 

(1980). When applying the abuse of discretion standard, a reviewing court is not free to 

merely substitute its judgment for that of the trial court. In re Jane Doe 1, 57 Ohio St.3d 

135, 138, 566 N.E.2d 1181 (1991). However, even though the court’s discretion is 

broad, it is not unbridled. 

{¶8} The movant bears the burden to demonstrate that he is entitled to a 

hearing on a Civ.R. 60(B) motion. PHH Mtge. Corp. v. Northrup, 4th Dist. Pickaway No. 

11CA6, 2011-Ohio-6814, ¶ 28. “To warrant a hearing on a Civ.R. 60(B) motion, the 

movant must allege operative facts that would warrant relief under Civ.R. 60(B).” Id., 

citing Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 19, 665 N.E.2d 1102 (1996). 

“Although a movant is not required to submit evidentiary material in support of the 

motion, a movant must do more than make bare allegations of entitlement to relief.” 

PHH Mtge. Corp. at ¶ 28, citing French v. Taylor, 4th Dist. Lawrence No. 01CA15, 2002 

WL 10544 (Jan. 2, 2002).
Gallia App. Nos. 12CA11 & 13CA4 5 

{¶9} Ultimately, “[t]o 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., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), 

paragraph two of the syllabus. “If any of these three requirements is not met, the 

motion should be overruled.” Natl. City Home Loan Servs., Inc. at ¶ 14. See GTE 

Automatic Elec., Inc. at 151 (finding these requirements “independent and in the 

conju[n]ctive, not the disjunctive”). 

{¶10} Timeliness. The Appellants relied in part on Civ.R. 60(B)(1) as grounds 

for relief in their motion. To assert that provision, their motion had to be filed not more 

than one year after the final judgment was entered and also within a “reasonable time.” 

Civ.R. 60(B). “A reasonable time must be determined under the facts of each case.” 

French at *2. 

{¶11} In their motion, the Appellants attempted to explain the approximately 

three and a half month delay between the time the court entered the default judgment 

against them and the time they filed the Civ.R. 60(B) motion. The Appellants claimed 

they spent the time looking for an attorney to represent them, but multiple attorneys 

declined before they finally found one. But as we explained above, when the Appellants 

filed their Civ.R. 60(B) motion, the default judgment against them did not actually 

constitute a final order. However, it appears that judgment became final before the 
Gallia App. Nos. 12CA11 & 13CA4 6 

court ruled on the motion, so in effect, the Appellants prematurely filed their Civ.R. 60(B) 

motion and there was no delay for them to explain. Thus, it would seem the Appellants 

filed the motion within the one-year time limit and within a reasonable time despite the 

fact that they did not make this specific argument in their motion. 

{¶12} Meritorious Defense. “ ‘[A] proffered defense is meritorious if it is not a 

sham and when, if true, it states a defense in part, or in whole, to the claims for relief set 

forth in the complaint.’ ” (Emphasis added.) Spaulding-Buescher v. Skaggs Masonry, 

Inc., 4th Dist. Hocking No. 08CA1, 2008-Ohio-6272, ¶ 10, quoting Amzee Corp. v. 

Comerica Bank-Midwest, 10th Dist. Franklin No. 01AP-465, 2002-Ohio-3084, ¶ 20. In 

the proposed answer attached to their motion, the Appellants alleged the defense of 

failure to state a claim upon which relief can be granted. Although not stated in the 

“Meritorious Defense” section of their motion, the Appellants complained in their 

motion that the third-party complaint alleged fraud but “fails to allege any specific acts 

which constitute fraud.” See Civ.R. 9(B) (“In all averments of fraud * * *, the 

circumstances constituting fraud * * * shall be stated with particularity.”). A review of the 

third-party complaint suggests this partial defense to the claims is not a sham. 

Therefore, we conclude the Appellants alleged enough operative facts of a partial 

meritorious defense to warrant a hearing. 

{¶13} Excusable Neglect. In their motion, the Appellants argued in part that they 

were entitled to relief from the default judgment under Civ.R. 60(B)(1) because of 

excusable neglect. Excusable neglect is “an elusive concept which has been difficult to 

define and to apply.” Kay, 76 Ohio St.3d at 20, 665 N.E.2d 1102. However, “the 

inaction of a defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete 
Gallia App. Nos. 12CA11 & 13CA4 7 

disregard for the judicial system.’ ” Id., quoting GTE Automatic Elec., Inc., 47 Ohio St.2d 

at 153, 351 N.E.2d 113. Moreover, “the concept of ‘excusable neglect’ must be 

construed in keeping with the proposition that Civ.R. 60(B)(1) is a remedial rule to be 

liberally construed, while bearing in mind that Civ.R. 60(B) constitutes an attempt to 

‘strike a proper balance between the conflicting principles that litigation must be brought 

to an end and justice should be done.’ ” Colley v. Bazell, 64 Ohio St.2d 243, 248, 416 

N.E.2d 605 (1980), quoting 11 Wright & Miller, Federal Practice & Procedure, Section 

2851, 140. 

{¶14} An excusable neglect inquiry “must of necessity take into consideration all 

the surrounding facts and circumstances.” Colley at 249. “These include the amount of 

time between the last day that an answer would have timely been filed and the date the 

default judgment was granted, the amount of the judgment awarded, and ‘the 

experience and understanding of the defendant with respect to litigation matters.’ ” 

State v. Hulgin, 9th Dist. Summit No. 26719, 2013-Ohio-2794, ¶ 13, quoting Colley at 

249. In addition, courts must remain mindful of the fact that “‘[m]atters involving large 

sums should not be determined by default judgments if it can reasonabl[y] be avoided.’” 

Colley at 249, fn.5, quoting Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 245 

(3d Cir.1951). Moreover, “[w]here 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.” GTE 

Automatic Elec., Inc. at paragraph three of the syllabus. 

{¶15} In their motion, the Appellants complained that the third-party complaint 

was “extraordinarily lengthy and complicated, involving multiple parties, counter-claims, 
Gallia App. Nos. 12CA11 & 13CA4 8 

cross-claims, and third parties.” The Appellants averred that they are inexperienced in 

legal matters and that when they received notice of the third-party complaint, they 

“misunderstood the document to mean that action was not required” from them “until the 

case between People’s Bank and Steve McGhee was resolved.” 

{¶16} As the Appellees point out, this court has previously stated that 

“[g]enerally, a failure to plead or respond after admittedly receiving a copy of a 

complaint is not ‘excusable neglect.’ ” Shannon v. Shannon, 4th Dist. Lawrence No. 

00CA46, 2001 WL1155711, *2 (Sept. 26, 2001). We have also previously recognized 

that “[s]everal cases address the concept of ‘excusable neglect’ as it relates to pro se 

litigants. The vast majority conclude that lack of counsel and ignorance of the legal 

system does not constitute ‘excusable neglect.’ ” Dayton Power & Light v. Holdren, 4th 

Dist. Highland No. 07CA21, 2008-Ohio-5121, ¶ 12. 

{¶17} Nonetheless, the experience and understanding of the defendant about 

litigation is a factor courts can consider in evaluating excusable neglect. The Appellants 

made averments about their lack of experience. Moreover, this litigation involves a 

large sum of money – over $300,000.00. We believe these “facts and circumstances,” 

coupled with the Appellants’ timeliness and alleged partial meritorious defense, 

provided the court with enough operative facts to warrant a hearing on the Civ.R. 60(B) 

motion. Therefore, we conclude the court’s decision to deny the motion without a 

hearing was unreasonable. 

{¶18} Accordingly, we sustain the sole assignment of error in part, reverse the 

court’s judgment, and remand for an evidentiary hearing on the Civ.R. 60(B) motion. 

We stress the fact that our decision should not be construed as a comment on the 
Gallia App. Nos. 12CA11 & 13CA4 9 

ultimate merits of the Civ.R. 60(B) motion. In fact, our decision to remand for an 

evidentiary hearing renders moot the Appellants’ claims about the merits of their motion, 

so we do not address them. App.R. 12(A)(1)(c). On remand, the trial court still has 

discretion to grant or deny the motion. ATI Performance Prods., Inc. v. Stevens, 4th 

Dist. Hocking No. 12CA6, 2013-Ohio-1313, ¶ 6 (“A Civ.R. 60(B) motion for relief from 

judgment is generally committed to the trial court’s sound discretion * * *.”). However, it 

would be helpful for potential future appellate review if the trial court issued a decision to 

explain the rationale behind whatever decision it makes. 

JUDGMENT REVERSED AND 

CAUSE REMANDED. 
Gallia App. Nos. 12CA11 & 13CA4 10 

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS 

REMANDED. Appellees shall pay the costs. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the Gallia 

County Court of Common Pleas to carry this judgment into execution. 

Any stay previously granted by this Court is hereby terminated as of the date of 

this entry. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion. 

For the Court 

BY: ____________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.