[Cite as Aboagye v. Peake, 2026-Ohio-1578.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
KELLI CHRISTINA MAYS ABOAGYE : : C.A. No. 30627 Appellees : : Trial Court Case No. 2020 CV 04104 v. : : (Civil Appeal from Common Pleas CARLTON VARNZELL PEAKE JR. ET : Court) AL. : : FINAL JUDGMENT ENTRY & Appellant : OPINION
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Pursuant to the opinion of this court rendered on May 1, 2026, the judgment of the
trial court is affirmed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
MARY K. HUFFMAN, JUDGE
EPLEY, J., and HANSEMAN, J., concur. OPINION MONTGOMERY C.A. No. 30627
RICHARD A. BOUCHER, Attorney for Appellant JAMES J. BIRCH, Attorney for Appellee
HUFFMAN, J.
{¶ 1} Lathedia Peake appeals from a decision of the Montgomery County Common
Pleas Court overruling her Civ.R. 60(B) motion for relief from a default judgment entered
against her and her son Carlton Varnzell Peake, Jr. For the following reasons, the judgment
of the trial court is affirmed.
Facts and Procedural History
{¶ 2} On October 23, 2020, Kelli Christina Mays-Aboagye filed a complaint against
the Peakes, alleging breach of contract, unjust enrichment, and fraud in the inducement.
According to the complaint, the Peakes enacted an elaborate scheme to induce Kelli to lend
them money. Kelli alleged that Carlton fabricated a story that he was owed hundreds of
thousands of dollars from Sportsbook, an online sports betting website associated with
Bally’s Las Vegas Hotel and Casino, and that he needed money to be able to collect those
funds. Kelli asserted that Carlton told her that he had hired an attorney, and he had the
alleged attorney contact her to validate that Carlton was owed the funds. The complaint
alleged that Carlton promised Kelli that if she provided him with the money, he would repay
her above and beyond what she loaned him. Kelli asserted that Carlton lived with Lathedia,
who was aware of and involved in the scheme, and who “acted as a broker” to facilitate the
transfer of the money from Kelli into Lathedia’s account, to be used to help Carlton collect
the money allegedly owed to him.
2 {¶ 3} The complaint further alleged that on October 28, 2016, Carlton obtained a loan
of $90,000 from Kelli, and pursuant to the loan agreement, Carlton agreed to repay Kelli
$11,000 by December 10, 2016. According to the agreement, any failure to timely pay was
subject to a late charge of $2,000. Carlton was further required to pay the remaining balance
by December 13, 2017, with a minimum payment of $2,000 per month, due on the last day
of each month, beginning October 28, 2016. A late charge of $100 applied for any late
monthly payment. In the case of default, the agreement stated that Carlton would pay
interest of 20% on the unpaid balance, and in the event the note was placed in collections,
Carlton agreed to pay attorney fees of 15% on top of the unpaid balance. According to the
complaint, Carlton failed to repay $11,000 by December 10, 2016, as well as the remainder
of the loan by December 31, 2017, as required by the terms of the loan agreement.
{¶ 4} Kelli further alleged that on December 22, 2016, she entered into a second loan
agreement with Carlton in the amount of $140,000, under which he agreed to repay Kelli
$140,000 by December 31, 2019, with a minimum monthly payment of $4,000, due the last
day of each month, beginning on December 22, 2016. Any monthly payment not made on
time was subject to a late fee of $500, and in the case of default, interest of 30% would apply
to the unpaid balance. According to the complaint, Carlton further agreed that if the loan was
placed in collections, attorney fees of 30% would be added to the unpaid balance of the
loan. Kelli alleged that Carlton did not repay her $140,000 by December 31, 2019, and to
date had made no payments. Kelli asserted that she made a good faith effort to work with
Carlton on each loan agreement to no avail. She claimed upon information and belief that
Carlton was never owed money from Sportsbook, he had never hired an attorney, and “the
Defendants kept and used [her] money for their own uses.”
3 {¶ 5} In the first two counts of the complaint, Kelli pleaded claims of breach of contract
against Carlton for both loan agreements. In the second two counts, she pleaded claims of
unjust enrichment in the amount of $230,000, as well as fraud in the inducement, against
Lathedia and Carlton. Kelli requested judgment against Carlton in the principal amount of
$90,000, with attorney fees of 15%, as well as $3,200 in late charges pursuant to the first
loan agreement. She further requested judgment against Carlton in the principal amount of
$140,000, with attorney fees at a rate of 30%, pursuant to the second loan agreement.
Finally, she sought compensatory and punitive damages. Copies of the loan agreements
were attached to the complaint. The court’s docket reflects that “L. Peake” accepted service
of the complaint via FedEx on October 30, 2020.
{¶ 6} On December 7, 2020, the court issued a notice that Carlton and Lathedia were
in default for answer or appearance, and it granted them 14 days to respond. On
December 16, 2020, Kelli filed a motion for default judgment along with a supporting
affidavit. She sought $230,000, plus costs of $334.75 and post-judgment interest at the
statutory rate. On December 22, 2020, the court granted default judgment in favor of Kelli in
the amount requested. On July 15, 2022, Kelli filed a praecipe requesting a certificate of
judgment lien against the Peakes.
{¶ 7} On July 17, 2025, almost five years after the default judgment was entered,
Lathedia filed the motion to vacate the default judgment. She argued that she had a
meritorious claim to present in that she had no knowledge of “anything contained in the
complaint.” Lathedia asserted that all of the facts and allegations in the complaint pertained
to Carlton, with the exception of the allegation that she acted as a broker, and that Kelli’s
“wherefore clause [did] not even contain a request for judgment” against her. She argued
that she was almost 70 years old, suffering from medical conditions, and under Carlton’s
4 care when the alleged events occurred. She claimed that she was unaware of Carlton’s
agreements with Kelli, had never met her, did not act as a “broker,” and did not transfer
Kelli’s loans into her account. According to Lathedia, her bank statements revealed that no
money was transferred into or out of her account relative to this matter or Kelli.
{¶ 8} Regarding her grounds for relief, Lathedia cited Civ.R.60(B)(5). According to
Lathedia, Carlton took possession of the complaint upon delivery by FedEx, advised her that
it had nothing to do with her, and “never permitted her to defend herself.” She stated that
while under the care of a different family member who attempted to assist her in selling her
home, the judgment against her was discovered. Lathedia asserted that Carlton intentionally
hid the truth from her and caused her to incur the judgment for something she had
“absolutely no knowledge of.” Finally, she asserted that she filed her motion upon discovery
of the judgment against her, and that it was timely.
{¶ 9} Lathedia attached an affidavit, which her motion “incorporated.” Kelli did not
respond to the motion. On August 28, 2025, the court overruled Lathedia’s motion, and she
timely appealed.
{¶ 10} Before addressing Lathedia’s sole assignment of error, we review the trial
court’s decision overruling her motion. Initially, the court noted that Civ.R. 60(B)(5) is a
catchall provision that is intended only to be used in rare cases where substantial grounds
justify relief, and that it offers no protection to a party who ignores its duty to protect itself.
{¶ 11} The court further found that Lathedia “put forth a possible meritorious
defense” in that she denied the allegation that she acted as a broker to facilitate the transfer
of Kelli’s money to her own account. The court found that she was incorrect in asserting that
the allegations in the complaint pertained only to Carlton and that the complaint did not
contain a request for relief against her. It was significant to the court that Lathedia never
5 denied being properly served with the complaint. The court concluded, “[g]iven this set of
circumstances, . . . the actual basis for [Lathedia’s] Motion is Civ.R. 60(B)(1) concerning
excusable neglect, not Civ.R. 60(B)(5),” noting that she provided “no other basis for relief
under Civ.R. 60(B)(5), and thus cannot rely on this provision.” Finally, the court found that
the motion was untimely because it was not filed within one year of the judgment, and the
court concluded that Lathedia failed to meet her burden under GTE Automatic Elec., Inc. v.
ARC Industries, 47 Ohio St. 2d 146 (1976).
Assignment of Error and Analysis
{¶ 12} Lathedia’s assignment of error contends that the court abused its discretion in
arbitrarily and unreasonably overruling her Civ.R. 60(B) motion. She asserts that when the
complaint was served, she asked Carlton what to do with the unopened envelope, and he
advised her that it had nothing to do with her and that he would take care of it. She claims
that was the last she knew about any issue until she attempted to sell her house five years
later and learned of the lien in the course of a title search.
{¶ 13} Lathedia asserts that she is likely to prevail on her meritorious defense given
her lack of knowledge “of anything contained” in the complaint. She claims that a review of
the complaint reveals that the only mention of her therein was the allegation that she acted
as a broker, and the “wherefore clause” did not contain a request for judgment against her.
According to Lathedia, at the time of the complaint, she “was nearly 70 years old, suffering
from medical problems and being solely cared for” by Carlton. She argues that she was
unaware of any agreements entered into between Carlton and Kelli and had never met or
spoken with Kelli.
{¶ 14} Although not contesting service, Lathedia asserts that a “motion to vacate
judgment need not fully comply with the requirements of Civ.R. 60(B) because vacating a
6 judgment based on service remains an inherent power of the trial court, and further, the
timelines prescribed in Civ.R. (60)(B) do not apply to issues with service.” She further argues
that “it is a basic tenet of Ohio jurisprudence that cases should be decided on their merits.”
Lathedia asserts that she “is an elderly woman, being targeted by her own son, who trusted
that he was taking care of her affairs,” only to learn several years later that his actions, as
alleged by Kelli, and in concealing the lawsuit from her, “caused her to incur a judgment of
over $230,000.00 and a lien against her only asset.” In her reply brief, Lathedia directs our
attention to Beach Body Tanning, Inc. v. Kovach, 2005-Ohio-2629, ¶ 1-4 (8th Dist.).
{¶ 15} “‘Civ.R. 60(B) is a remedial rule to be liberally construed so that the ends of
justice may be served.’" Liberty Nursing Ctr. of Englewood, Inc. v. Valentine, 2012-Ohio-
1096, ¶ 54 (2d Dist.), quoting Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996). We
have recognized that “‘Civ.R. 60(B) represents an attempt to strike a balance between
conflicting principles that litigation must be brought to an end and that justice should be
done.’” GMAC Mtge., L.L.C. v. Herring, 2010-Ohio-3650, ¶ 30 (2d Dist.), quoting Chapman
v. Chapman, 2006-Ohio-2328, ¶ 13 (2d Dist.).
{¶ 16} Civ.R. 60(B) states:
On motion and upon such terms as are just, the court may relieve a party or
his legal representative from a final judgment, order or proceeding for the
following reasons: (1) mistake, 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
7 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. The motion shall 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. A motion under this subdivision (B) does not affect the
finality of a judgment or suspend its operation.
{¶ 17} “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 relief is
granted, (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B), and
(3) the motion is made within a reasonable time.” GMAC Mtge. at ¶ 30, citing GTE, 47 Ohio
St.2d 146, at paragraph two of the syllabus. “All of these requirements must be satisfied,
and the motion should be denied if any one of the requirements is not met.” Id., citing Strack
v. Pelton, 70 Ohio St.3d 172, 174 (1994), and Cincinnati Ins. Co. v. Schaub, 2008-Ohio-
4729, ¶ 15 (2d Dist.).
{¶ 18} “In order to establish a meritorious claim or defense under Civ.R. 60(B), the
movant is required to allege a meritorious claim or defense, not to prove that [he] will prevail
on such claim or defense.” Aurora Loan Servs., L.L.C. v. Wilcox, 2009-Ohio-4577, ¶ 14
(2d Dist.). “Civ.R. 60(B) exists to resolve injustices that are so great that they demand a
departure from the strict constraints of res judicata. . . . However, the rule does not exist to
allow a party to obtain relief from his or her own choice to forgo an appeal from an adverse
decision.” Bank of Am., N.A. v. Kutchta, 2014-Ohio-4275, ¶ 15.
{¶ 19} Regarding grounds for relief, Civ.R. 60(B)(5) is a “catchall provision,” distinct
from the more specific grounds enumerated in Civ.R. 60(B)(1)-(4), and it “is only to be used
in an extraordinary and unusual case when the interests of justice warrants it.” Adomeit v.
8 Baltimore, 39 Ohio App.2d 97, 105 (8th Dist. 1974). It “is not to be used as a substitute for
Civil Rule 60(B)(1), (2) or (3), when it is too late to seek relief under these provisions.” Id.
Significantly, “[i]t is well-established that the ‘other reason’ clause of Civ.R. 60(B) will not
protect a party who ignores its duty to protect its interest.” Mount Olive Baptist Church v.
Pipkins Paints, 64 Ohio App.2d 285, 288 (1979). A “party who willfully and deliberately
chooses to ignore a complaint and has stated no other reason for failing to appear or answer
a complaint has not stated an adequate ground for relief from a default judgment pursuant
to Civ.R. 60(B)(5).” Id. Finally, “so long as service of process reaches a person qualified to
accept service of process under the Civil Rules, lack of actual notice is not a basis for relief
under Civ.R. 60(B)(1).” Michael D. Tully Co., L.P.A. v. Dollney, 42 Ohio App.3d 138, 141
(8th Dist. 1987).
{¶ 20} In addition to a motion under Civ.R. 60(B), the movant “must also file a brief or
memorandum of fact and law, and affidavits, depositions, answers to interrogatories,
exhibits and any other relevant material. The material submitted must contain operative
facts.” Adomeit at paragraph two of the syllabus. “Operative facts are those facts which if
proven, would give rise to a meritorious defense.” Society Natl. Bank v. Val Halla Athletic
Club & Recreation Ctr., 63 Ohio App.3d 413, 418 (9th Dist. 1989). “Broad, conclusory
statements do not satisfy the requirement that a Civ.R. 60(B) motion must be supported by
operative facts that would warrant relief from judgment.” Aurora Loan Servs. at ¶ 14. “The
rigid procedural requirements of Civil Rule 56 regarding the documents and other material
the parties should submit in support of and in opposition to a motion for summary judgment
are excellent guides and a commendable procedure to be followed in seeking relief or in
opposing relief under Civil Rule 60(B).” Adomeit at 104.
9 {¶ 21} The decision to grant or deny a Civ.R. 60(B) motion is left to the sound
discretion of the trial court and will not be reversed absent an abuse of discretion. In re
Adoption of A.J.W., 2023-Ohio-2609, ¶ 15 (2d Dist.). “A trial court abuses its discretion when
its decision is ‘unreasonable, arbitrary, or unconscionable.’” Bissell v. Bissell, 2016-Ohio-
3086, ¶ 9 (2d Dist.), quoting AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990).
{¶ 22} Lathedia’s affidavit in support of her motion stated that she had “personal
knowledge of the facts” and that the “facts contained in the Motion to Vacate Judgment are
true and accurate to the best of my knowledge and belief.” Such a conclusory and blanket
verification of the motion’s contents fails to satisfy the requirement for evidentiary material
containing operative facts. The affidavit itself must contain the operative facts, not simply
verify that unspecified facts exist elsewhere in the motion. In other words, it must supply
evidentiary content beyond mere attestation, and Lathedia’s affidavit was deficient.
{¶ 23} Contrary to Lathedia’s assertion that the only allegation against her in the
complaint was that she acted as a broker, the complaint specifically alleged claims of unjust
enrichment in the amount of $230,000 and fraud in the inducement against her, as the trial
court found. In support of a meritorious defense that she never acted as a broker or
transferred money from Kelli into her own account, she “incorporated” her deficient affidavit.
Despite these failures, Lathedia’s motion reflects that she alleged a meritorious defense,
namely that she had no knowledge of Carlton’s scheme to obtain money from Kelli.
{¶ 24} Regarding grounds for relief, however, whether Lathedia proceeded under
under Civ.R. 60(B)(5), as she claimed, or under Civ.R. 60(B)(1), as the trial court found, she
was not entitled to relief. While she argued that she had no knowledge of the complaint,
suggesting mistake or excusable neglect, she does not deny service of process. Rather, she
10 admits that she received it and asked her son about it. The return of service reflects that it
was accepted by “L. Peake,” and the record supports a conclusion that she failed to protect
her own interests such that she was not entitled to protection under Civ.R. 60(B)(5). Further,
her alleged lack of actual notice is not a basis for relief under Civ.R. 60(B)(1), given that
service of process was accepted, presumably by Lathedia herself.
{¶ 25} Finally, Lathedia’s reliance on Kovach, 2005-Ohio-2629 (8th Dist.), is
misplaced. In Kovach, Beach Body Tanning, buyers of a tanning salon business, alleged
fraud against the seller of a salon and his mother and sought imposition of a constructive
trust on any monetary assets in the mother and son’s possession. Id. at ¶ 2. A default
judgment was entered against the mother, Rebecca Kovach. Id. at ¶ 4. As in this case,
upon receipt of the complaint, Rebecca asked her son about it and was told that he was
handling it. Id. at ¶ 3. She ignored the complaint, as well as two court notices of default
hearings she received and a summons to a deposition sent to her work. Id. After learning
that garnishment proceedings had been initiated, she sought relief from judgment, which
was denied. Id. at ¶ 4. Contrasting this case, it was undisputed that her motion was timely
filed. Id. at ¶ 11. Beach Body Tanning disputed both that her neglect was excusable and that
she had a meritorious defense to present. Id..
{¶ 26} Kovach determined that despite “Rebecca’s lack of an acceptable reason for
failing to respond to the complaint, . . . the court may determine that justice requires granting
the motion” under the authority of Civ.R. 60(B)(5). Id. at ¶ 13. Unlike this case, in which Kelli
alleges that Lathedia was unjustly enriched, in Kovach it was undisputed that Rebecca did
not benefit from the sale of the business. Id. at ¶ 16. The amount in question in Kovach was
almost $100,000. Id. The Eighth District found that “[in] light of those facts, it [was]
appropriate to examine the merits of her case, despite her lack of excusable neglect.” Id.
11 {¶ 27} Citing Civ.R. 9(B) and the elements of fraud, the court found that the complaint
against Rebecca failed to allege “with specificity that Rebecca behaved fraudulently toward
plaintiff”; that she was a member, shareholder, or officer of the limited liability corporation;
or that she owed a fiduciary duty to plaintiff. Id. at ¶ 24-25. The complaint further did not
allege the first requirement of fraud—representation, or where there had been a duty to
disclose, concealment of a fact—and Rebecca had “never even communicated with
plaintiff.” Id. at ¶ 24. Kovach determined that “[f]ailure to respond to a complaint which does
not state a claim upon which relief can be granted should not result in a default judgment
against the defendant. A plaintiff still needs to allege a valid claim in order to prevail, even
against a neglectful defendant.” Id. at ¶ 26. Kovach vacated the trial court’s judgment and
remanded the matter. Id. at ¶ 27.
{¶ 28} First, given that Rebecca ignored the complaint and other filings, we are not
persuaded by Kovach’s reliance upon Civ.R. 60(B)(5), which does not shield a party who
turns a blind eye to its duty to protect its own interest. Further, unlike the plaintiff in Kovach,
Kelli alleged a valid claim of fraud in the inducement against Lathedia. Kelli alleged that
Lathedia made material misrepresentations in acting as a “broker,” or intermediary, knowing
the statements were false, and that Lathedia induced her to enter into the contracts,
proximately causing her injury, such that she was entitled to compensatory and punitive
damages from Lathedia. Significantly, Kelli also alleged a valid claim of unjust enrichment
in the amount of $230,000. Lathedia’s reliance upon Kovach is misplaced.
{¶ 29} For all of these reasons, Lathedia was not entitled to relief from default
judgment, and she has failed to demonstrate that the trial court abused its discretion.
Lathedia’s assignment of error is overruled.
12 Conclusion
{¶ 30} The judgment of the Montgomery County Common Pleas Court is affirmed.
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EPLEY, J., and HANSEMAN, J., concur.