[Cite as 1031 Properties, L.L.C. v. Bearden , 2021-Ohio-1232.] IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

1031 PROPERTIES, LLC, Appellant,

- vs -

CHARLES A. BEARDEN, et al., Appellees. :

:

:

:

:

: CASE NO. CA2020-03-046

O P I N I O N

4/12/2021

CIVIL APPEAL FROM BUTLER COUNTY AREA I COURT Case No. CVG1900054

Thomas G. Eagle Co., L.P.A., Thomas G. Eagle, 3400 N. State Rou te 741, Lebanon, Ohio 45036, for appellant Wayne Staton Co., L.P.A., Timothy J. Meloy, 110 N. Beech Street , Oxford, Ohio 45056, for appellees

M. POWELL, J. {¶ 1} Appellant, 1031 Properties, LLC ("1031 Properties"), appeals th e decision of the Butler County Area I Court vacating a default judgment ente red against appellees, Charles and Sarah Bearden ("the Beardens"). {¶ 2} In 2017, the Beardens leased a residence in Middletown, Ohio fr om 1031 Properties for $745 per month. On January 28, 2019, 1031 Prope rties filed an evictionButler CA2020-03-046

- 2 - complaint against the Beardens, seeking a writ of restitution o f the premises in its first claim and past due rent and damages in its second claim. 1031 Proper ties alleged in its complaint that, beginning in December 2018, the Beardens defaulted on the ir lease, and had failed to pay their monthly rent in a timely manner. {¶ 3} With regard to its claim for damages, 1031 Properties sought da mages in the amount of $1,487.26, plus $24.49 for each day the residence rem ained occupied after January 31, 2019, until and including the end of the term of th e lease, or when the property was again rented for an equal or greater amount, whichever came first. The complaint also sought compensation for damages to the premises, plus interest, the cost of this action and reasonable attorney's fees if allowed. {¶ 4} On January 28, 2019, the Beardens were served with a "Summons i n Forcible Entry and Detention with Claim for Rent." The summons indicate d the Beardens were required to appear for a hearing regarding the first claim of t he complaint. With regard to the second claim for damages, the summons stated the following: As to [1031 Properties'] claim for unpaid rent and other claims , you are required to serve upon the plaintiff's attorney * * * a copy of an answer to the complaint within twenty-eight (28) days aft er service of this summons on you, exclusive of the day of service

. * * * If you fail to appear and defend, judgment by default wil l be rendered against you for the relief demanded in the complaint. The summons and a copy of the complaint were secured to the fro nt door of the Beardens'

residence. {¶ 5} On February 13, 2019, the trial court held a hearing regarding the first claim of the complaint. 1031 Properties was represented by counsel. The Beardens appeared pro se. At the hearing, the Beardens indicated they did not di spute the allegations and that they had made an arrangement with 1031 Properties. Counsel for 1031 Properties stated the parties were working together on an installment basis to av oid execution of the writ ofButler CA2020-03-046

- 3 - restitution. At that point, the trial court informed the Beard ens they were to leave the premises within seven days unless the parties agreed otherwise. At the conclusion of the hearing, counsel for 1031 Properties indicated he was not going to ask for "second cause on either of these right now either." {¶ 6} The following day, the trial court issued an entry indicating t hat both the Beardens and 1031 Properties had appeared at the hearing and th e Beardens had failed to timely pay rent that was due. The trial court further order ed the Beardens to vacate the premises by noon on February 20, 2019. {¶ 7} On March 7, 2019, 1031 Properties asked the trial court to prep are and issue

a writ of restitution in accordance with the trial court's Febr uary 14, 2019 judgment entry. That day, the trial court issued an entry and order for writ of restitution against the Beardens. On March 12, 2019, the writ was served upon the Beardens; howev er, the Beardens had moved out of the residence by that time. {¶ 8} On April 16, 2019, 1031 Properties moved the trial court for a default judgment on its claim for damages as alleged in the second cause of the complaint. According to 1031 Properties' motion, despite being served with the complain t on January 28, 2019, the

Beardens had failed to file an answer within the time allowed b y law. 1031 Properties attached to its motion an affidavit for damages and a ledger of charges, which detailed the reasonable value of unpaid rent from the date of default to the date of re-rental. The affidavit indicates the Beardens paid $1,300 in February and $695 in Marc h towards their overdue balance. According to the affidavit, the remaining amount owed for unpaid rent and damages totaled $13,747.05. The Beardens did not respond to 10 31 Properties' motion. {¶ 9} On September 6, 2019, the trial court granted 1031 Properties' motion for default judgment, and entered judgment against the Beardens in the amount of $13,747.05 plus interest at the statutory rate. The Beardens did not appe al the trial court's decision.Butler CA2020-03-046

- 4 - {¶ 10} On October 10, 2019, the Beardens, now represented by counsel, moved the trial court to set aside the default judgment. In its motion, the Beardens argued default judgment was improper in this instance because they appeared at the first cause hearing and a hearing regarding 1031 Properties' claim for damages was never held. Thus, the Beardens claimed they were denied the opportunity to present ev idence refuting 1031 Properties' claim for damages and asked the trial court to set aside the default judgment and hold a hearing regarding the claim for damages. 1031 Prope rties filed a memorandum in opposition to the Beardens' motion. {¶ 11} On November 18, 2019, the magistrate issued a decision overruli ng the Beardens' motion. The magistrate found that, because the Beard ens failed to file an answer to the complaint within 28 days of service, the default judgmen t was proper. The magistrate further found that, to the extent the Beardens' motion could be construed as a Civ.R. 60(B) motion, they failed to allege any of the three necessary prongs required by GTE Automatic Electric Co., Inc. v. ARC Industries, Inc. , 47 Ohio St.2d 146. The Beardens did not object to the magistrate's decision. However, neither did the trial co urt adopt the magistrate's decision as its judgment. {¶ 12} On January 16, 2020, the trial court held a hearing regarding t he Beardens' motion to set aside the default judgment. Thereafter, on Febru ary 19, 2020, the trial court issued an entry granting Bearden's motion to set aside the defa ult judgment and set the matter for a full hearing on damages. {¶ 13} 1031 Properties now appeals, raising the following assignment o f error for our

review: {¶ 14} THE TRIAL COURT ERRED IN SETTING ASIDE THE DEFAULT

JUDGMENT. {¶ 15} On appeal, 1031 Properties argues the trial court erred in gran ting theButler CA2020-03-046

- 5 - Beardens' motion to set aside the default judgment for two reas ons. First, 1031 Properties claims the trial court erred in vacating the default judgment w here the Beardens failed to answer the complaint and failed to establish any ground of reli ef pursuant to Civ.R. 60(B). Second, 1031 Properties argues the trial court erred in vacatin g the default judgment because the Beardens failed to establish any meritorious defens e. {¶ 16} In the instant case, the trial court did not set forth its basi s for granting the Beardens' motion to set aside the default judgment. The Bearde ns' motion does not reference Civ.R. 60(B) as a basis to set aside the default judg ment, nor does it discuss the necessary elements for relief pursuant to Civ.R. 60(B). The Be ardens also did not argue Civ.R. 60(B) as a basis for relief during the January 16, 2020 hearing on its motion. Notwithstanding the above, we will construe the Beardens' motio n to set aside the default judgment as a motion made pursuant to Civ.R. 60(B), which is th e proper device to seek relief from a default judgment. Civ.R. 55(B); see also State v. Watkins , 7th Dist. Mahoning No. 19 MA 0024, 2020-Ohio-1366, ¶ 35 (construing the state's mo tion as a motion pursuant to Civ.R. 60[B] despite the state's failure to specifically cit e Civ.R. 60[B] or directly address the Civ.R. 60[B] factors). {¶ 17} Civ.R. 55(A) provides in pertinent part: When a party against whom a judgment for affirmative relief is sought has 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 * * * If the p arty 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 heari ng on such application. {¶ 18} "Civ. R. 55(B) allows the trial court to set aside a default ju dgment in accordance with Civ.R. 60(B)." GTE , 47 Ohio St.2d at 150. Civ.R. 60(B) states, in part: On motion and upon such terms as are just, the court mayButler CA2020-03-046

- 6 - relieve a party or his legal representative from a final judgme nt, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or e xcusable neglec t; (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 tha t the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion sh all 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. {¶ 19} "Civ.R. 60(B) is a remedial rule and should be liberally constr ued." Blasco v.

Mislik , 69 Ohio St.2d 684, 685 (1982), citing Colley v. Bazell , 64 Ohio St.2d 243, 248 (1980). "To 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 reli ef 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[.]" GTE , at paragraph two of the syllabus. "The foregoing requirements are 'independent and in the conjunctive; thus the test is not fulfilled if any one of the requirements is not met.'" Myers v. Lawson , 12th Dist. Warren No. CA2012-07-068, 2013-Ohio-2500, ¶ 12, quoting Strack v. Pelton , 70 Ohio St.3d 172, 174 (1994). {¶ 20} Granting relief from judgment under Civ.R. 60(B) is within a tr ial court's sound discretion, and its ruling will not be disturbed on appeal abse nt a showing of abuse of

discretion. Robinson v. Miller Hamilton Venture, LLC , 12th Dist. Butler No CA2010-09-226, 2011-Ohio-3017, ¶ 15, citing Veidt v. Cook , 12th Dist. Butler No. CA2003-08-209, 2004- Ohio-3170, ¶ 14. An abuse of discretion implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable, and is more than a mistake of law or judgment.

Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983).Butler CA2020-03-046

- 7 - {¶ 21} On appeal, the Beardens claim the trial court did not abuse its discretion in setting aside the default judgment because they established the y were entitled to relief pursuant to Civ.R. 60(B)(1), as a settlement agreement can cons titute excusable neglect supporting relief from a judgment. The Beardens further claim they were neither afforded a hearing on the application for default judgment nor notice of such a hearing. Thus, because the trial court failed to provide such notice and a hea ring, the Beardens argue the default judgment is void and the trial court did not err in vac ating it. After a review of the record, we reject the Beardens' claims. {¶ 22} As noted above, the Beardens claim their failure to timely resp ond to the complaint constitutes excusable neglect. The determination of whether neglect was excusable must take into consideration all the surrounding fact s and circumstances. State ex rel. Doe v. Register , 12th Dist. Clermont No. CA2008-08-081, 2009-Ohio-2448, ¶ 13. Neglect is inexcusable if a party's conduct falls substantially below what is reasonable under the circumstances, or if the neglect can be regarded as a "comp lete disregard for the judicial system." Kay v. Marc Glassman, Inc. , 76 Ohio St.3d 18, 20 (1996). Courts must also

remain mindful of the admonition that cases should be decided u pon their merits, where possible, rather than on procedural grounds. Register at ¶ 13. {¶ 23} After a review of the record, we find the Beardens failed to es tablish that their failure to file an answer to the complaint was excusable under the circumstances of the case at bar. First, we are unpersuaded by the Beardens' relian ce on Proctor v. Proffitt , 4th Dist. Meigs Nos. 02CA5 and 03CA6, 2004-Ohio-789, in support of their argument. In that case, the Fourth District determined the appellant was entitled to relief from a judgment entry enforcing the parties' settlement agreement where there w as a dispute regarding the total settlement amount and the appellant's belief that the set tlement amount was

reasonable. Proctor at ¶ 15. Under those circumstances, the court determined theButler CA2020-03-046

- 8 - appellant's conduct did not show a complete disregard for the l egal system, but was an honest misapprehension as to the terms of the settlement. Unde r those circumstances, the court found the appellant's failure to file an answer was excus able neglect. Id

. {¶ 24} The facts of Proctor are distinguishable from the case at hand. Here, the Beardens were served with the complaint on January 28, 2019, an d attended the initial hearing on February 13, 2019. At the hearing, 1031 Properties indicated the parties were working with each other on "kind of an installment basis," and that it did not expect to execute upon the writ. The trial court then ordered the Bearde ns to either make payment arrangements with 1031 Properties within seven days, or to vaca te the premises. At that point, 1031 Properties stated, "we're not going to ask for a se cond cause on either of these right now either." After the hearing, the Beardens paid $1,300 in February 2019 and $695 on March 1, 2019. According to the record, the Beardens did no t make any payments after March 1, 2019, and at that time, their remaining balance for ov erdue rent and fees totaled $1,135. {¶ 25} On March 7, 2019, 1031 Properties executed the writ of restitut ion; however, by the time of service the Beardens had vacated the premises. 1031 Properties did not move for default judgment until August 16, 2019, approximately five months after the Beardens' last payment towards the overdue rent, and nearly eig ht months after the Beardens were served with the complaint. The motion contained a certificate of service and the Beardens do not allege they were not served with the mo tion for default judgment. Notably, the Beardens did not respond to 1031 Properties' motio n to dispute the damages sought, nor did they provide any explanation for their failure to respond to the complaint despite the language on the summons informing them of their dut y to do so. The trial court did not rule on 1031 Properties' motion for default until Septe mber 6, 2019, 21 days after

the motion was filed.Butler CA2020-03-046

- 9 - {¶ 26} Under these facts, we find the trial court abused its discretio n in vacating the default judgment, as the Beardens' actions were not reasonable under the circumstances, and their neglect in failing to respond to the complaint was no t excusable. First, in contrast to the appellant in Proctor , the Beardens did not introduce any evidence of the terms of t heir installment agreement with 1031 Properties, nor do they argue t hey misunderstood their payment arrangement with their landlord. At the hearing on the Beardens' motion to vacate the default judgment, the Beardens' counsel merely indicated th e Beardens' were under the impression that "if [they] pa[id] what's owed, [they] c[ould] s tay." Despite this alleged arrangement between the parties, the record reflects the Bearde ns did not pay what they owed after their February and March payments, and ceased making payments towards their balance altogether in March 2019. After that point, the Bearde ns did not acknowledge the action pending against them until damages were awarded to 1031 Properties in September 2019. Thus, the record does not reflect the Beardens complied with any installment agreement reached between the parties. Therefore, they cannot credibly claim they believed the agreement negated their duty to respond to the com plaint. Rather, under these facts, the Beardens should have known 1031 Properties would pur sue the claims set forth in the complaint if they failed to "pay what's owed" in accorda nce with their payment agreement. {¶ 27} Furthermore, despite the Beardens' personal beliefs that they w ere not required to act due to their February and March payments, other courts have rejected similar arguments on appeal, and have held the failure to file an answe r to the complaint does not constitute excusable neglect simply because the parties may hav e entered into a settlement agreement. See Univ. of Akron v. Mangan , 9th Dist. Summit No. C.A. 24167, 2008-Ohio4844, ¶ 12-13 (rejecting appellants' argument that their failur e to respond to the complaint constituted excusable neglect where they had entered into a set tlement agreement andButler CA2020-03-046

- 10 - they, "as laypersons," did not contemplate that an answer was s till required). As this court has previously noted, ignorance of the law is not a valid justi fication for failure to defend an action, and non-attention to a legal matter because of the fail ure to understand its scope is

also no excuse. Zuk v. Campbell , 12th Dist. Clermont No. CA94-03-018, 1994 Ohio App. LEXIS 6085, * 5 (Dec. 30, 1994); see also Whittle v. Davis , 12th Dist. Butler No. CA2013- 08-153, 2014-Ohio-445, ¶ 26 (rejecting appellants' argument tha t their failure to file an answer after service of the summons and complaint constituted e xcusable neglect due to their belief the matter would proceed to trial without them "fi ling papers"). Rather, it remained necessary pursuant to the Civil Rules for the Beardens to file an answer to the complaint within 28 days of service in response to the claim fo r damages. Mangan at ¶ 12- 13; see also Civ.R. 12(A)(1). {¶ 28} Lastly, we reject the Beardens' argument that their failure to file an answer to the complaint was excusable because they believed 1031 Properti es would not pursue its claim for damages and a second cause hearing regarding the dama ges claim was never held. As an initial note, there is no evidence in the record t hat 1031 Properties abandoned or withdrew its claim for damages. Rather, the transcript from the February 2019 hearing indicates 1031 Properties was not seeking a hearing on its dama ges claim at that time

. (emphasis added.) This was because, at that time, 1031 Propert ies did not plan to pursue its damages claim in light of the Beardens' intention to make i nstallment payments toward their overdue balance and to continue leasing the premises. Ho wever, we find it was unreasonable for the Beardens to assume 1031 Properties would n ot seek the damages set forth in the complaint if they ceased making payments in ac cordance with the agreement and vacated the premises with an outstanding balance. {¶ 29} In light of the above, and when construing the Beardens' motion as a request for relief pursuant to Civ.R. 60(B)(1), we agree with 1031 Prop erties that the Beardens failedButler CA2020-03-046

- 11 - to demonstrate they were entitled to relief. This is because, as detailed above, the Beardens' failure to respond to the complaint did not constitut e excusable neglect under these circumstances. Rather, the record reflects the Beardens simply ceased making payments in accordance with their agreement with 1031 Propertie s and assumed 1031 Properties would not pursue its claim for damages against them. Such acts do not excuse their failure to respond to the complaint, and their inaction i n this case falls substantially

below what we find is reasonable under the circumstances and de monstrates a complete disregard for the justice system. As a result, we find the Bea rdens were not entitled to relief based upon Civ.R. 60(B)(1). {¶ 30} Turning to the Beardens' remaining argument regarding the trial court's failure to comply with the notice and hearing requirements of Civ.R. 55 , we find that argument is one that could, and should, have been raised on direct appeal. {¶ 31} "Civ.R. 55(A) clearly requires that before it enters a default judgment against a defendant who has appeared, a trial court must hold a hearing and provide the defendant with seven days' notice of the hearing on the motion for defaul t judgment." Producers Credit Corp. v. Voge , 12th Dist. Preble No. CA2002-06-009, 2003 Ohio 1067, ¶ 17; see also Nieman v. Bunnell Hill Development Co., Inc. , 12th Dist. Butler No. CA2002-10-249, 2004- Ohio-89. However, it is well established that Civ.R. 60(B) can not be used as a substitute for a direct and timely appeal. Bank of N.Y. v. Blanton , 12th Dist. Clermont No. CA2011- 03-019, 2012-Ohio-1597, ¶ 18, citing Doe v. Trumbull Cty. Children Servs. Bd. , 28 Ohio St.3d 128 (1986), paragraph two of the syllabus. {¶ 32} Here, the record reflects the trial court did not provide the B eardens with notice of a hearing regarding 1031 Properties' motion for defau lt judgment and did not hold such a hearing before entering a default judgment in 1031 Prope rties' favor. Notwithstanding the trial court's decision to enter judgment ag ainst them without providingButler CA2020-03-046

- 12 - the requisite notice and holding a hearing, the Beardens electe d not to directly appeal the trial court's decision. Rather, the Beardens filed a motion to set aside the default judgment

over one month after the trial court rendered its decision. Th e Beardens' claim that the trial court's actions were procedurally erroneous, and that they were entitled to notice and a hearing prior to the trial court awarding judgment in 1031 Prop erties' favor, are issues which are properly raised on direct appeal. See AMCA Internatl. Corp. v. Carlton , 10 Ohio St.3d 88 (1984) (reversing on direct appeal a grant of default judgme nt where the trial court failed to hold a hearing as required by Civ.R. 55[A]); Fifth Third Mortg. Co. v. Fantine , 5th Dist. Fairfield No. 11 CA 20, 2011-Ohio-4968, ¶ 19; see also Citimortgage, Inc. v. Fangman , 12th Dist. Clermont No. CA2013-03-020, 2013-Ohio-3316, ¶ 4. Therefo re, because the Beardens cannot use their Civ.R. 60(B) motion as a substitute f or a direct appeal, and their claim regarding the trial court's failure to comply with Civ.R. 55 should have been raised on direct appeal, we reject the Beardens' remaining argument. {¶ 33} Based on the above, we find the Beardens failed to demonstrate to the trial court that they were entitled to relief under Civ.R. 60(B), and therefore, the trial court abused its discretion in granting the Beardens' motion to set aside th e default judgment. Accordingly, we sustain 1031 Properties' assignment of error, r everse the trial court's decision, and reinstate the default judgment in 1031 Properties ' favor. {¶ 34} Judgment reversed. HENDRICKSON, J., concurs. PIPER, P.J., dissents.

PIPER, P.J., dissenting. {¶ 35} I would affirm the trial court's decision to vacate the default judgment and therefore respectfully dissent from the majority opinion. The trial court did not abuse itsButler CA2020-03-046

- 13 - discretion.

No Second Cause {¶ 36} My colleagues are correct that 1031 Properties indicated it was not pursuing

a second cause at this time

. Ante at ¶ 28. However, requesting a second cause would

have entailed the court notifying all parties of a specific date while in court. Norm ally, the second cause hearing date would have been set even though an ag reement had been entered into by the parties. By setting a second cause hearing date not only would it have given notice to the Beardens but also it would have ensured tha t the agreement was honored, and if it was not, a hearing would take place. Howeve r, here, 1031 Properties indicated it was not currently asking for a second cause. {¶ 37} 1031 Properties never sought a second cause. Instead, it orchestrated alternative proceedings to pursue a default judgment with the t rial court's magistrate. After the trial court became aware that it had inadvertently adopted the magistrate's default judgment, the court vacated that default judgment so that a fai r and full hearing could be held to determine the appropriate damages. {¶ 38} When 1031 Properties decided not to ask for a second cause hear ing, it prevented what normally would have happened in an FED case. Th e court would have sent out notice of a hearing date for the Beardens to appear. Pursu ing an alternate procedure, 1031 Properties side-stepped a notice being sent from the court to the Beardens. Due to this alternative procedure employed by 1031 Properties, "the tr ial court did not provide the Beardens with notice of a hearing regarding 1031 Properties' mo tion for default judgment and did not hold such a hearing before entering a default judgm ent in 1031 Properties'

favor." Ante at ¶ 32. Therefore the record is clear the default judgment h erein transpired as the result of a number of procedural irregularities that the record cannot explain, and which cannot render the default judgment reasonably justified. Although after-the-fact, theButler CA2020-03-046

- 14 - trial court recognized this and vacated the judgment so that th e parties could fully litigate the matter. Ohio jurisprudence in notions of fundamental fairn ess would support the trial

court's exercise of discretion.

Sound Use of Discretion {¶ 39} I would reiterate that the decision to grant or deny a motion f or relief from judgment lies in the sound discretion of the trial court and wi ll not be reversed on appeal

absent an abuse of discretion. Cox v. Zimmerman , 12th Dist. Clermont No. CA2011-03- 022, 2012-Ohio-226, ¶ 14. An abuse of discretion connotes more than an error of law or judgment; it implies the trial court acted unreasonably, arbitr arily, or unconscionably Middletown App., Ltd. v. Singer , 12th Dist. Butler Nos. CA2018-08-165 and CA2018-11- 224, 2019-Ohio-2378, ¶ 12. {¶ 40} The "meritorious defense" my colleagues find lacking can be fou nd in the Beardens' motion to set aside default judgment, which alleges t he Beardens had no opportunity to litigate the issue of damages and would have ref uted the damages granted by the default judgment. Furthermore, the trial court obviousl y determined that the numerous irregularities fell within the gambit of Civ.R. 60(B)( 1) thru (5) and that the Beardens' request to set aside the default judgment was timely. Therefore, in denying deference to the trial court's discretion, the majority's appli cation of GTE for support is overly-strict and misguided. As the majority writes; "Civ.R. 6 0(B) * * * should be liberally

construed." Ante at ¶ 19. While the magistrate applies GTE contrary to the Beardens' request for relief, it is important to note the trial court did not adopt the magistrate's decision.

Ante at ¶ 11. 1 {¶ 41} The trial court exercised its discretion to vacate its own judg ment, recognizing

1. One could argue that in effect, the majority's decision aff irms the trial court's magistrate's decision even though the trial court never expressly adopted its magistrate's decision.Butler CA2020-03-046

- 15 - the need for further proceedings. It is not an abuse of the tr ial court's discretion where the trial court knew of the procedural irregularities that had occu rred in its court. The trial court became aware that a second cause hearing was never held, and kn ew that it had not provided notice to the Beardens of the default judgment hearing . The trial court's vacation of its prior judgment was its attempt to rectify the situation and provide both the Beardens and 1031 Properties their full and fair day in court. The tria l court's decision in that regard was not unreasonable, arbitrary, or unconscionable; quite the c ontrary. Need for Hearing on Damages {¶ 42} Moreover, it is undisputed that Ohio law clearly favors disposi tion of cases upon their merits rather than on procedural technicalities. Jones v. Contemporary Image Labeling, Inc. , 12th Dist. Warren No. CA2009-02-017, 2009-Ohio-6178, ¶ 9. Li kewise, there is no dispute that Civil Rule 60(B)(1) "is a remedial rule to b e liberally construed." Colley v.

Bazell , 64 Ohio St. 2d 243, 248 (1980). {¶ 43} The well-settled jurisprudence is especially significant here w here there was never a hearing on the amount of damages to be awarded. The tr ial court obviously found this to be unfair and unjust, and so do I. The magistrate mere ly had an affidavit alleging what damages were purportedly owed. However, the magistrate to ok no evidence, never issued findings of fact in regard to what damages actually occu rred, and did not make any credibility determination regarding support for the damage alle gations. Thus, the trial court's vacation of the judgment on damages was proper because it would allow the trial court to hold a hearing on the damages issue, provide the Beard ens an opportunity to defend against the allegations, and allow evidence to support w hat damages, if any, actually occurred. This is what the trial court wanted to occur, and ta king the necessary steps to allow for the hearing was within the trial court's broad discre tion.Butler CA2020-03-046

- 16 - Conclusion {¶ 44} The trial court did not abuse its discretion when it vacated th e default judgment, which had been premised upon multiple irregularities. The trial court's judgment prioritizing the need for a hearing on damages was not unwise o r unreasonable. The trial court exercised its discretion so that both parties would have a full and fair hearing resulting in a just outcome. In the matter sub judice, truncated proceed ings do not equate to fair proceedings. Thus, I respectfully dissent from the majority's decision holding that the trial court's decision in these matters was unreasonable, arbitrary, and capricious.