[Cite as Ati Performance Prods., Inc. v. Stevens, 2013-Ohio-1313.]

 IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

 HOCKING COUNTY 

ATI PERFORMANCE PRODUCTS, INC., 

 : 

Plaintiff-Appellee, Case No. 12CA6 

vs. : 

DEAN STEVENS, AKA GERALD D. : DECISION AND JUDGMENT ENTRY 

STEVENS, 

 : 

Defendant-Appellant. 

_________________________________________________________________ 

 APPEARANCES: 

COUNSEL FOR APPELLANT: Ryan Shepler, Kernen & Shepler, L.L.C., 158 East Main 

Street, P.O. Box 388, Logan, Ohio 43138-0388 

COUNSEL FOR APPELLEE: L. Jackson Henniger, 150 North Market Street, Logan, 

Ohio 43138 

________________________________________________________________ 

CIVIL CASE FROM HOCKING COUNTY COMMON PLEAS COURT 

DATE JOURNALIZED: 3-26-13 

ABELE, J. 

{¶ 1} This is an appeal from a Hocking County Common Pleas Court judgment that 

denied a Civ.R. 60(B) motion for relief from judgment filed by Dean Stevens (aka Gerald D. 

Stevens), defendant below and appellant herein. Appellant assigns the following error for 

review: 

“THE TRIAL COURT ERRED IN OVERRULING MR. 

STEVENS’ MOTION TO SET ASIDE THE DEFAULT 

JUDGMENT ENTERED IN FAVOR OF THE PLAINTIFF.” 

{¶ 2} ATI Performance Products, Inc. (ATI), plaintiff below and appellee herein, 
HOCKING, 12CA6 2

commenced the instant action by filing a complaint that alleged that appellant owed it $16,106.14 

on an account. Attached as an exhibit to ATI's complaint is a copy of an invoice, showing the 

amount allegedly due and owing. While the record indicates that appellant was served with the 

complaint on February 1, 2011, he did not enter an appearance. On May 5, 2011, the trial court 

awarded a default judgment against him. On June 8, 2011, the trial court issued a nunc pro tunc 

entry that repeated the sum of the default judgment and awarded the appellee “statutory interest.” 

{¶ 3} On December 12, 2011, the trial court issued an “Order for Examination of 

Judgment Debtor.” Apparently, this event prompted appellant to enter an appearance in the 

action. On March 22, 2012, appellant filed a Civ.R. 60(B)(1) motion for relief from judgment 

and claimed that he was not aware of the action. Appellant’s affidavit, attached as an exhibit to 

that motion, attests that he was not served with the summons and complaint and did not sign a 

certified mail receipt returned to the clerk of courts. 

{¶ 4} At the April 16, 2012 motion hearing, appellant denied that he signed for service 

of the complaint. The trial court, however, overruled the Civ.R. 60(B) motion and opined that 

“considerable doubt” exists concerning appellant’s testimony. The court ultimately found that 

appellant was “incredible” (or, presumably, not credible) and denied the request for relief from 

the default judgment. This appeal followed. 

{¶ 5} In his sole assignment of error, appellant asserts that the trial court erred by 

denying his motion for relief from default judgment. We disagree with appellant. 

{¶ 6} A Civ.R. 60(B) motion for relief from judgment is generally committed to the trial 

court's sound discretion and should not be disturbed absent an abuse of that discretion. State ex 

rel. Russo v. Deters, 80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997); Griffey v. Rajan, 33 Ohio 
HOCKING, 12CA6 3

St.3d 75, 77, 514 N.E.2d 1122 (1987). An abuse of discretion connotes more than an error of 

law or judgment; rather, it implies that a trial court's attitude is unreasonable, arbitrary or 

unconscionable. Landis v. Grange Mut. Ins. Co., 82 Ohio St.3d 339, 342, 695 N.E.2d 1140 

(1998); Malone v. Courtyard by Marriott L.P., 74 Ohio St.3d 440, 448, 659 N.E.2d 1242 (1996). 

 In applying the abuse of discretion standard, appellate courts must not substitute their judgment 

for that of a trial court. State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 

732, 654 N.E.2d 1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 

(1991). Indeed, to establish an abuse of discretion, the result must be so palpably and grossly 

violative of fact or logic that it evidences not the exercise of will, but the perversity of will; not 

the exercise of judgment, but the defiance of judgment; and not the exercise of reason, but, 

instead, passion or bias. Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 

(1996); Adams v. Adams, 4th Dist. No. 05CA63, 2006-Ohio-2897, at ¶6. With these principles 

in mind, we turn our attention to the merits of appellant’s assignment of error. 

{¶ 7} Appellant argues that he did not receive service of process on the complaint. To 

that end, the trial court expressly found that the evidence in the case “cast considerable doubt on 

[his] testimony” and that appellant’s testimony was “incredible.” When a trial court judge 

serves as the trier of fact on a Civ.R. 60(B) motion, appellate courts apply those standards that 

are typically applied in any other challenge to factual findings in a civil case. See e.g., Thomas v. 

Thomas, 7th Dist. No. 07MA140, 2008-Ohio-6209, at ¶22; Miller v. Miller, 11th Dist. Nos. 

2003-P-0008 & 2003-P- 0066, 2003-Ohio-6687, at ¶21. In other words, the appellate court 

must determine if some competent and credible evidence supports the judgment. 

Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, 874 N.E.2d 1198, at ¶3; 
HOCKING, 12CA6 4

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, at ¶21; C.E. Morris Co. 

v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578, at the syllabus (1978). This particular 

standard of review is highly deferential, and even “some” evidence is sufficient to support a trial 

court's judgment and prevent a reversal of the judgment. See Barkley v. Barkley, 119 Ohio 

App.3d 155, 159, 694 N.E.2d 989 (4th Dist. 1997); Dyrdek v. Dyrdek, 4th Dist. No. 09CA29, 

2010-Ohio-2329, at ¶16. The rationale behind this principle is that the trial court, sitting as the 

trier of fact, is in the best position to view the witnesses and to observe their demeanor, gestures, 

and voice inflections, and to use those observations to weigh the evidence and assess witness 

credibility. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); 

Jones v. Jones, 4th Dist. No. 07CA25, 2008-Ohio-2476, at ¶18. 

{¶ 8} In the case sub judice, the trial court expressly found that appellant’s testimony 

was not credible. We will not second-guess that determination, as we were not present at the 

hearing to hear and to observe appellant's testimony. In short, we find no error in the trial 

court’s decision to reject appellant's contention that he is not the person who signed the certified 

mail receipt of service of process. Thus, we find that the trial court did not err by denying the 

Civ.R. 60(B) motion for relief from judgment. 

{¶ 9} Accordingly, based upon the foregoing reasons, we hereby overrule appellant's 

assignment of error and affirm the trial court's judgment. 

JUDGMENT AFFIRMED. 
[Cite as Ati Performance Prods., Inc. v. Stevens, 2013-Ohio-1313.]

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee recover of appellant costs herein 

taxed. 

The Court finds there were reasonable grounds for this appeal. 

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

Common Pleas Court to carry this judgment into execution. 

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

Rules of Appellate Procedure. 

McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion 

 For the Court 

BY: 

 Peter B. Abele, 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.