[Cite as Summit at St. Andrews Home Owners Assn. v. Kollar, 2012-Ohio-1696.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

SUMMIT AT ST. ANDREWS ) 

HOME OWNERS ASSOCIATION, ) CASE NO. 11 MA 49 

 ) 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) OPINION 

 ) 

JENNIFER KOLLAR, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from County Court No. 5, 

Case No. 10 CVF 29 CNF. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Carl D. Rafoth 

Friedman & Rummell Co., LPA 

100 E. Federal St., Suite 300 

City Centre One 

Youngstown, OH 44503-1810 

For Defendant-Appellant: Jennifer Kollar, Pro-se 

6520 St. Andrews Dr., #3 

Canfield, OH 44406 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Dated: March 28, 2012 
[Cite as Summit at St. Andrews Home Owners Assn. v. Kollar, 2012-Ohio-1696.]

DeGenaro, J. 

{¶1} Pro-se Defendant-Appellant Jennifer T. Kollar, appeals the judgment of the 

Mahoning County Court No. 5 denying her motion to vacate the default judgment entered 

in favor of Plaintiff-Appellee Summit at St. Andrews Home Owners Association. Kollar 

asserts that the trial court abused its discretion by denying her request for relief pursuant 

to Civ.R. 60(B). Kollar's arguments are meritless, because Kollar failed to prove a basis 

for setting aside the default judgment pursuant to Civ.R. 60(B)(1)-(15). Accordingly, the 

judgment of the trial court is affirmed. 

Facts and Procedural History 

{¶2} Kollar owns a condominium unit in the Summit at St. Andrews development 

in Canfield, which is managed by appellee Summit. On January 25, 2010, Summit filed a 

complaint on an account in the Mahoning County Court No. 5 against Kollar, alleging that 

she owed Summit $665.52 for condominium maintenance fees and a retaining wall 

assessment, plus continuing condominium fees in the amount of $136.20 per month, 

water/sewer fees, retaining wall assessments, miscellaneous fees and charges, and late 

fees until judgment, plus the costs of the action. Attached to the complaint was an 

invoice that showed Kollar's account had an outstanding balance of $665.52. 

{¶3} Kollar was served with the complaint on February 16, 2010. On March 9, 

2010, Kollar filed a 72-page pleading in response. Summit motioned the court for an 

order requiring Kollar to file a response that complied with the civil rules. Specifically, 

Summit took issue with the fact that Kollar's "answer" was not formatted pursuant to 

Civ.R. 10(B) and that Kollar's "counterclaim" did not comply with Civ.R. 12(E) in that it 

was so vague and ambiguous that Summit could not be reasonably required to frame a 

response. Thus, Summit also moved for a more definite statement of the counterclaim 

pursuant to Civ.R. 12(E). On June 24, 2010, the trial court granted Summit's motion and 

ordered Kollar to comply with the applicable civil rules. 

{¶4} Kollar failed to file an amended pleading that complied with the civil rules 

and thus Summit filed a combined motion to strike, for sanctions and for default judgment 

on September 17, 2010, notice of which was sent to Kollar. Attached to this motion was 

an affidavit from Gary Broderick of the property management company that kept the 
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accounts and records for Summit, along with a detailed ledger report showing that Kollar's 

account had a balance of $692.32 as of August 16, 2010. Kollar filed a response in 

opposition on September 30, 2010. 

{¶5} On October 15, 2010, the trial court granted Summit's motion, thereby 

striking Kollar's "answer and counterclaim," pursuant to Civ.R. 12(F), granting default 

judgment, and ordering Kollar to pay Summit's attorney fees, for a total judgment of 

$1,320.32 plus costs. 

{¶6} On October 29, 2010, Kollar filed a motion for a new trial and relief from 

judgment, which was opposed by Summit. After holding a hearing on the motion, the trial 

court denied it. From that judgment, Kollar timely appeals. Kollar filed a stay of execution 

of judgment with the trial court. The trial court never issued a ruling on the stay. 

{¶7} Kollar also filed a motion for stay with this court, along with a request to 

waive bond, and an order to enjoin Summit from shutting off water service to her unit. 

This court denied those requests and further ruled that since this appeal was taken from a 

ruling on Kollar's motion for relief from judgment, and not the earlier default judgment, 

that this appeal would be limited to a review of the order denying the motion for relief from 

judgment. 

Denial of Civ.R. 60(B) Motion 

{¶8} In her sole assignment of error, Kollar asserts: 

{¶9} "The Appellant will show that where the trial court erred and abused 

discretion [sic], when the court failed to follow the Ohio Revised Code, Ohio Civil Rules, 

State of Ohio Consumer Protection Laws and Federal Consumer Protection Laws. Such 

trial court errors and abuse of discretions [sic] transpired, when the trial court denied the 

Appellant's October 29, 2010 Relief from Default Judgment filing. 

{¶10} Motions to set aside a judgment are governed by Civ.R. 60(B). The Ohio 

Supreme Court set forth the controlling test for Civ.R. 60(B) motions in GTE Automatic 

Elec., Inc. v. Arc Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). 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 
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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." Id. at paragraph two of the syllabus. 

{¶11} The enumerated grounds for relief under Civ.R. 60(B) are as follows: 

(1) [M]istake, 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. Civ.R. 60(B). 

{¶12} "The Supreme Court acknowledges the fine line this rule forces courts to 

tread, as the preference to hear a case on its merits must be balanced with the necessity 

of enforcing pleading rules and deadlines." E. Grace Communications, Inc. v. 

BestTransport.com, Inc., 7th Dist. No. 02 JE 4, 2002-Ohio-7175, ¶11, citing WFMJ 

Television, Inc. v. AT&T Federal Systems CSC, 7th Dist. No. 01CA69, 2002-Ohio-3013, 

¶10, citing Griffey v. Rajan, 33 Ohio St.3d 75, 79, 514 N.E.2d 1122 (1987). The decision 

whether to grant a Civ.R. 60(B) motion rests within the sound discretion of the trial court, 

and will not be reversed absent an abuse of that discretion. WFMJ at ¶10. An abuse of 

discretion cannot be found merely because the reviewing court would have decided it 

differently, but rather the trial court's decision must be unreasonable, arbitrary or 

unconscionable. Syphard v. Vrable , 141 Ohio App.3d 460, 463, 751 N.E.2d 564 (7th 

Dist.2001). 

{¶13} Although a hearing was held on the motion for relief from default judgment, 

Kollar failed to order a transcript for inclusion in the appellate record. Absent a transcript, 
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we presume the regularity of the proceedings. Knapp v. Edwards Laboratories , 61 Ohio 

St.2d 197, 199, 400 N.E.2d 384 (1980). Thus, we are constrained by the limited record 

before us. Further, within her motion for relief from judgment, Kollar also requested a 

judgment notwithstanding the verdict (JNOV) pursuant to Civ.R. 50(B) and a new trial 

pursuant to Civ.R. 59. Since there was no trial in this case and Summit was granted a 

default judgment, the court properly denied relief on these grounds. 

{¶14} Regarding Kollar's motion for relief from judgment, there is no dispute as to 

whether it was timely, thus we need only resolve whether the first and second GTE

prongs were satisfied. 

{¶15} With regard to the first prong, Kollar has alleged a meritorious defense. 

While a party requesting Civ.R. 60(B) relief from judgment is only required to allege a 

meritorious defense, not to prove she will prevail on that claim or defense, the movant 

must allege operative facts with enough specificity to allow the trial court to decide 

whether she has met that test. See State Farm Ins. Co. v. Valentino, 7th Dist. No. 02-CA119, 2003-Ohio-3487, ¶18; Syphard, 141 Ohio App.3d at 463. 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. Amzee Corp. v. Comerica Bank-Midwest, 

10th Dist. No. 01AP-465, 2002-Ohio-3084, ¶20. To simply state that a party has a 

meritorious defense, without more, is insufficient to satisfy the GTE standard. Domestic 

Linen Supply & Laundry Co. v. King, 7th Dist. No. 05-MA-62, 2006-Ohio-756, ¶14. Kollar 

asserts that she was not obligated to pay the retaining wall assessment and Summit 

erroneously calculated the amount due on her account. 

{¶16} However, Kollar did not demonstrate that she was entitled to relief under 

one of the grounds stated in Civ.R. 60(B)(1) through (5). Kollar raises several main 

arguments as to why the trial court erred by denying her motion for relief from judgment. 

{¶17} First, she contends that Summit's attorney acted unethically because he 

purportedly represented the condominium developer in the past. While a 

misrepresentation or fraud by the opposing party or its counsel could be grounds for 

vacating a judgment pursuant to Civ.R. 60(B)(3), see, e.g., Gursky v. Gursky, 11th Dist. 
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No. 2003-P-0010, 2003-Ohio-5697, Kollar does not claim any misrepresentation occurred 

in this case. Unsupported assertions that opposing counsel had a conflict of interest do 

not constitute sufficient grounds to vacate a judgment. 

{¶18} Second, Kollar contends that the affidavit and account ledger attached to 

Summit's motion for default judgment were "fraudulent," but she provides no evidence of 

fraud. She is merely disputing her obligation to pay the condo assessment, which goes to 

the element of stating a meritorious defense. 

{¶19} Third, Kollar claims the trial court failed to consider her October 19, 2010 

response to Summit's default judgment motion. However, the record reveals that the 

October 19, 2010 response was actually a sur-reply; Kollar had already filed one 

response to Summit's default judgment motion on September 30, 2010. Pursuant to the 

county court's local rules, it was not required to consider the sur-reply as Kollar did not 

move prior to filing it. See Mahoning County Court Local Rule 8(D). Further, the October 

19, 2010 sur-reply was not filed until after the trial court had granted the default judgment 

on October 15, 2010. 

{¶20} Fourth, Kollar contends that the trial court failed to serve her with several 

judgment entries during the course of the proceedings; for example, the trial court's order 

requiring her to file an answer and counterclaim that complied with the civil rules. 

However, "[a] court * * * generally acts and speaks only through its journal by means of 

orders. Civ.R. 5(A) does not require the service of orders unless the order is 'required by 

its terms to be served.'" (Internal citations omitted.) Ohio Valley Radiology Assoc., Inc. v. 

Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118, 124, 502 N.E.2d 599. All the entries 

at issue were properly docketed, and a certificate of service from the clerk at the bottom 

of the court's order requiring Kollar to comply with the civil rules indicates that Kollar was 

sent a copy of that judgment. Accordingly, this is not a proper basis for vacating the 

default judgment. 

{¶21} Civ.R. 55(A) governs motions for default judgment: 

When a party against whom a judgment for affirmative relief is sought has 
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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 

therefor; 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. If, in order to enable the court to enter 

judgment or to carry it into effect, it is necessary to take an account or to 

determine the amount of damages or to establish the truth of any averment 

by evidence or to make an investigation of any other matter, the court may 

conduct such hearings or order such references as it deems necessary and 

proper and shall when applicable accord a right of trial by jury to the 

parties. (Emphasis added.) Civ.R. 55(A). 

{¶22} Here Kollar filed a responsive pleading which did not conform to the Civil 

Rules, and the trial court ordered her to file a proper answer. Despite this previous order, 

Kollar chose not to file a proper answer. After four months elapsed without Kollar filing a 

proper answer, on Summit’s motion the trial court struck the non-conforming answer from 

the record. See Civ.R. 12(F): 

Upon motion made by a party before responding to a pleading or, if no 

responsive pleading is permitted by these rules, upon motion made by a 

party within twenty-eight days after the service of the pleading upon him or 

upon the court's own initiative at any time, the court may order stricken 

from any pleading any insufficient claim or defense or any redundant, 

immaterial, impertinent, or scandalous matter. 

{¶23} Once Kollar's response was struck from the record, this became a situation 
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where "a party against whom a judgment for affirmative relief is sought has failed to plead 

or otherwise defend as provided by these rules." Civ.R. 55(A). See T.S. Expediting 

Servs., Inc. v. Mexican Industries, Inc., 6th Dist. No. WD-01-060, 2002-Ohio-226 

(applying Civ.R. 55(A) where a defendant files an answer that is out of rule.) 

{¶24} The Civ.R. 55(A) procedural requirements were met in this case. Since 

Kollar appeared in the action, Civ.R. 55(A) provides that she must receive written notice 

of the application of default judgment. The certificate of service attached to Summit's 

default judgment motion demonstrates that Kollar was provided notice of the motion. In 

addition, instead of filing a conforming answer, Kollar filed what the trial court treated as a 

brief in opposition to default judgment on September 30, 2010, which it considered when 

ruling on the motion for default judgment after a hearing on the motion. Again, given the 

lack of a transcript of the default judgment hearing, the Knapp presumption controls our 

review. Accordingly, the trial court reasonably concluded that there was no basis for 

setting aside the default judgment. 

{¶25} Further, to the extent that Kollar raises issues on appeal beyond the 

propriety of the trial court's denial of her Civ.R. 60(B) motion, this court lacks jurisdiction 

to consider them. Kollar did not appeal from the default judgment order and this court 

has already ruled that "this appeal is limited to a review of the order denying the motion 

for relief from judgment." 

{¶26} In sum, the trial court did not abuse its discretion by denying Kollar's Civ.R. 

60(B) motion. Thus, Kollar's sole assignment of error is meritless, and the judgment of 

the trial court is affirmed. 

Waite, P.J., concurs. 

Donofrio, J., concurs.