[Cite as Talismanic Properties, L.L.C. v. Cedar Grove of Tipp City Homeowner's Assn., Inc., 2026-Ohio-2004.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
TALISMANIC PROPERTIES, LLC : : C.A. No. 2025-CA-43 Appellant : : Trial Court Case No. 25 CV 310 v. : : (Civil Appeal from Common Pleas CEDAR GROVE OF TIPP CITY : Court) HOMEOWNER'S ASSOCIATION INC. : : FINAL JUDGMENT ENTRY & Appellee : OPINION
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Pursuant to the opinion of this court rendered on May 29, 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,
RONALD C. LEWIS, PRESIDING JUDGE
EPLEY, J., and HANSEMAN, J., concur. OPINION MIAMI C.A. No. 2025-CA-43
JOSHUA A. KOLTAK, MICHAEL J. SCARPELLI, and CHRISTOPHER J. ELLINGTON, Attorneys for Appellant JOSEPH E. DIBAGGIO, MICHELLE L. POLLY-MURPHY, and DERYN E. MURPHY, Attorneys for Appellee
LEWIS, P.J.
{¶ 1} Plaintiff-appellant Talismanic Properties, LLC (“Talismanic”), appeals from an
order of the Miami County Common Pleas Court that granted a Civ.R. 60(B) motion filed by
defendant-appellee Cedar Grove of Tipp City Homeowner’s Association Inc. (“Cedar
Grove”). For the following reasons, we affirm the judgment of the trial court.
I. Facts and Course of Proceedings
{¶ 2} This appeal involves a dispute between Talismanic, the developer of a planned
residential community, and Cedar Grove, the homeowner’s association for the planned
community. On May 8, 2025, Talismanic filed a complaint in the Miami County Common
Pleas Court for cognovit judgment and money damages against Cedar Grove. According
to the complaint, Cedar Grove owed Talismanic $119,542.19 pursuant to a November 1,
2024 promissory note, which contained a warrant of attorney authorizing a confession of
judgment. Talismanic attached a copy of the promissory note to its complaint. The
promissory note stated that Cedar Grove promised to pay Talismanic the principal sum of
$119,542.19, with interest at the rate of 4.0% per annum from November 1, 2024, in
quarterly installments of $10,000 each, commencing on March 1, 2025. Talismanic alleged
that Cedar Grove failed to remit the payment required by the promissory note. On the same
day Talismanic filed its complaint, the trial court granted judgment to Talismanic in the
amount of $119,542.10 plus interest and late charges.
2 {¶ 3} On June 27, 2025, Talismanic filed a motion and affidavit for examination of the
judgment debtor. The trial court granted the motion and ordered that a judgment debtor
exam be conducted on July 30, 2025.
{¶ 4} A day before the judgment debtor exam was scheduled to begin, Cedar Grove
filed a Civ.R. 60(B) motion for relief from the trial court’s May 8, 2025 judgment. According
to its motion, Cedar Grove had several meritorious defenses, including the invalidity of the
promissory note, apparent self-dealing that resulted in the signing of the promissory note,
and violations of Cedar Grove’s bylaws. Cedar Grove also stated that Talismanic had
violated R.C. 5312.09 and 5312.13. Cedar Grove claimed that it brought its Civ.R. 60(B)
motion within a reasonable time because it filed its motion less than 90 days from when the
judgment was entered and because it had worked diligently to gather documents and
information to present its meritorious defenses to the trial court. Cedar Grove attached the
affidavit of Mike McDermott to its Civ.R. 60(B) motion.
{¶ 5} According to McDermott’s affidavit, he was the President of the current Board
of Directors of Cedar Grove and was one of the custodians for and assisted with maintaining
the books and records of Cedar Grove. McDermott Affidavit, ¶ 2, 4. Talismanic was the
developer and declarant of Cedar Grove and had full and complete control of Cedar Grove
until November 2024. Id. at ¶ 5. Before November 2024, Cedar Grove’s Board of
Directors consisted of the following principals or agents of Talismanic: Judith Tomb, her
son, and her sister, Janice Norris. Id. at ¶ 6-7. Shortly before Talismanic turned over
control of Cedar Grove to the members of Cedar Grove, the Board of Directors “unilaterally
authorized” Norris to sign the promissory note at issue in this appeal. Id. at ¶ 8.
McDermott averred that Cedar Grove’s current Board of Directors discovered that the
promissory note violated Cedar Grove’s declaration and bylaws and “included improper
3 expenses used to subsidize and offset [Talismanic’s] costs related to the development of”
Cedar Grove. Id. at ¶ 9-11.
{¶ 6} In addition to McDermott’s affidavit, Cedar Grove attached the following to its
Civ.R. 60(B) motion: (1) copies of the declaration and bylaws of Cedar Grove and
amendments thereto; (2) a copy of a March 5, 2025 letter authored by counsel for Cedar
Grove and sent to Talismanic; (3) a copy of a March 26, 2025 response letter from
Talismanic’s counsel to Cedar Grove’s counsel; and (4) copies of minutes from the meetings
of Cedar Grove’s Board of Directors.
{¶ 7} Talismanic filed a memorandum in opposition to the Civ.R. 60(B) motion.
Talismanic attached to its memorandum an affidavit of Judith Tomb and a copy of the
March 26, 2025 response letter from Talismanic’s counsel to Cedar Grove’s counsel.
Tomb averred that the cognovit note was executed by her sister and that it reflected
expenses incurred by Talismanic for the benefit of Cedar Grove. Talismanic argued that
Cedar Grove’s motion was not filed within a reasonable time and that Cedar Grove had no
meritorious defenses.
{¶ 8} Cedar Grove filed a reply in support of its Civ.R. 60(B) motion to which it
attached a second affidavit of McDermott. In his second affidavit, McDermott stated that
Cedar Grove’s current Board of Directors had learned that Talismanic had failed to maintain
a reserve fund and that all the capital contribution checks had gone to Talismanic, not Cedar
Grove.
{¶ 9} The trial court scheduled an October 17, 2025 hearing on Cedar Grove’s
Civ.R. 60(B) motion. At the hearing, the trial court asked counsel for the parties whether
they would present any testimony or just argue the merits of Cedar Grove’s motion.
Counsel for Cedar Grove stated that her client would rely on its motion and not present any
4 testimony. Talismanic’s attorney stated that Talismanic would argue the briefs and provide
the testimony of Tomb.
{¶ 10} During her testimony, Tomb explained that she had been developing land for
51 years and that she had advanced $395,000 over the course of the development of the
homes at Cedar Grove. Tomb stated that she had only been reimbursed for approximately
$180,000 of the $395,000 she had advanced. According to Tomb, during the construction
of the properties of a homeowner’s association, a developer must maintain the properties
and typically advances money to the homeowner’s association because the association
starts out with no money. Once lots are sold to homeowners, the homeowner’s association
begins to collect fees and becomes responsible for the cost of maintaining and upkeeping
the lots. Tomb testified that the Cedar Grove property had poor soil conditions for growing
anything. As a result, it was very expensive to remove all the rocks and debris and seed
the land.
{¶ 11} Tomb stated that she had drafted the promissory note on which Talismanic’s
lawsuit was based. Her sister then executed the promissory note as the secretary of Cedar
Grove’s Board of Directors. Talismanic did not use a reserve account. Instead, “[t]he
board made a decision that [the $1,000 capital contributions] would go, rather than through
the middle step, it would just go directly to Talismanic as payment on account for expenses
that Talismanic experienced in behalf of the HOA.” Tr. 27. According to Tomb, she did
not include any amounts in the promissory note that should have been a cost for which the
developer was responsible. Tomb characterized the promissory note as “a memorialization
of the debt that [Cedar Grove] owed to the developer.” Tr. 31-32.
{¶ 12} Tomb testified that she turned all the necessary financial paperwork over to
the new members of the Board of Directors of Cedar Grove. She explained that Plaintiff’s
5 Exhibit 3 delineated all the expenses that Talismanic paid on behalf of Cedar Grove and
showed the crediting of the account for all the capital contribution payments made against
those expenses.
{¶ 13} The trial court granted Cedar Grove’s Civ.R. 60(B) motion. The court found
that Cedar Grove had alleged meritorious defenses and had filed its motion within a
reasonable time. Talismanic filed a timely notice of appeal.
II. The Trial Court Did Not Abuse Its Discretion in Granting the Civ.R. 60(B)
Motion
{¶ 14} Talismanic’s first assignment of error states:
The Trial Court Erred by Granting Defendant-Appellee’s Motion for Relief from
Judgment When Appellee Failed to Present Any Evidence at the Hearing It
Requested.
{¶ 15} Our review of a trial court’s decision on a Civ.R. 60(B) motion is based on
whether the trial court abused its discretion. Liberty Nursing Ctr. of Englewood, Inc. v.
Valentine, 2012-Ohio-1096, ¶ 57 (2d Dist.), citing Gorby & Assoc., LLC v. McCarty, 2011-
Ohio-1983, ¶ 44 (2d Dist.). “‘A trial court abuses its discretion when it acts in an
unreasonable, arbitrary or unconscionable manner.’” North v. Eichler, 2026-Ohio-857, ¶ 14
(2d Dist.), quoting State v. Finnerty, 45 Ohio St.3d 104, 107 (1989).
{¶ 16} “Civ.R. 60(B) is a remedial rule to be liberally construed so that the ends of
justice may be served.” Kay v. Marc Glassman, Inc., 1996-Ohio-430, ¶ 8, citing Colley v.
Bazell, 64 Ohio St.2d 243, 249 (1980). “‘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.’” Aurora Loan Servs., L.L.C. v. Wilcox, 2009-Ohio-4577, ¶ 12
(2d Dist.), quoting Chapman v. Chapman, 2006-Ohio-2328, ¶ 13 (2d Dist.).
6 {¶ 17} Talismanic’s complaint and the trial court’s May 8, 2025 judgment were based
on a cognovit note. “[A] debtor relinquishes the possibility of notice, hearing, or appearance
at an action to collect in the event of nonrepayment” by signing a cognovit note. Buzby v.
Chamoun, 2014-Ohio-4676, ¶ 5 (8th Dist.), citing Medina Supply Co., Inc. v. Corrado,
116 Ohio App.3d 847, 851 (8th Dist. 1996). “The purpose of a cognovit note is to allow the
holder of the note to quickly obtain judgment, without the possibility of a trial.” Id., citing
Fogg v. Friesner, 55 Ohio App.3d 139, 140 (6th Dist. 1988). To accomplish this, cognovit
notes are accompanied by a warrant of attorney by which the debtor provides a waiver of
the prejudgment notice and hearing requirements. Id., citing Fogg at 140.
{¶ 18} If a debtor wants to challenge a judgment obtained by cognovit note, the debtor
may file a Civ.R. 60(B) motion for relief from judgment. Id. at ¶ 6, citing Masters Tuxedo
Charleston, Inc. v. Krainock, 2002-Ohio-5235, ¶ 7 (7th Dist.). Ordinarily, in order to prevail
on a motion for relief from judgment, the moving party must demonstrate: “(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 . . . .” GTE Automatic Elec. v. ARC Industries, Inc.,
47 Ohio St.2d 146 (1976), paragraph two of the syllabus. To establish that the debtor is
entitled to relief from judgment based on a cognovit note, however, the debtor “‘need only
establish (1) a meritorious defense and (2) that the motion was timely made.’” Buehler v.
Mallo, 2010-Ohio-6349, ¶ 8 (10th Dist.), quoting Corrado at 851.
{¶ 19} The trial court found that Cedar Grove satisfied both requirements.
On appeal, Talismanic only presents arguments relating to the meritorious defense aspect
of the trial court’s decision. Therefore, we need not review the trial court’s finding that the
Civ.R. 60(B) motion was timely made.
7 {¶ 20} “Under Civ.R. 60(B), a movant’s burden is only to allege a meritorious defense,
not to prove that he will prevail on that defense.” Rose Chevrolet, Inc. v. Adams, 36 Ohio
St.3d 17, 20 (1988), citing Moore v. Emmanuel Family Training Ctr., 18 Ohio St.3d 64, 67
(1985). Typically, a meritorious defense is one that goes to the “substance” or “essentials”
of a case. Valentine, 2012-Ohio-1096, at ¶ 55 (2d Dist.). “Where timely relief is sought
from a default judgment and the movant has a meritorious defense, doubt, if any, should be
in favor of the motion to set aside the judgment so that cases may be decided on their
merits.” GTE at paragraph three of the syllabus.
{¶ 21} Cedar Grove argued in its motion that it had several meritorious defenses,
including the invalidity of the promissory note, apparent self-dealing that resulted in the
signing of the promissory note, and violations of Cedar Grove’s bylaws. Cedar Grove
attached the affidavit of McDermott in support of its Civ.R. 60(B) motion, along with copies
of bylaws, meeting minutes, and letters between counsel.
{¶ 22} The trial court provided the following explanation of why it found Cedar Grove
had established a meritorious defense:
Here, Defendant argues that the Promissory Note upon which cognovit
judgment was entered was the result of self-dealing, as “Declarant Director
Janice Norris, despite serving two masters, signed a self-serving Promissory
Note in favor of Declarant[.]” Defendant also challenges the final amount of
the Note, stating that “[t]he Promissory Note improperly requires the
Association to essentially subsidize or offset the costs incurred by the
Declarant for expenses it incurred for the initial development of the Association
Property throughout the Declarant Control Period and not for expenses
incurred to repair and maintain the Association Property.” Defendant, in
8 essence, challenges the integrity of the Note and the amount of the Note and
resulting judgment. Such matters are squarely within established meritorious
defenses to cognovit judgments for the purposes of Civ.R. 60(B).
(Bracketed text in original.) Decision (Nov. 12, 2025), p. 3-4.
{¶ 23} Talismanic argues that the trial court abused its discretion by relying on the
affidavit of Mike McDermott, which was attached to Cedar Grove’s Civ.R. 60(B) motion.
According to Talismanic, “[t]he trial court, upon granting a hearing, was limited to granting
or denying the Motion based on the evidence presented at the hearing.” Appellant’s Brief,
p. 10. Therefore, Talismanic contends the trial court abused its discretion by relying on an
affidavit that was not presented as evidence at the hearing. We disagree for three principal
reasons.
{¶ 24} First, the Ohio Supreme Court has made it clear that a movant does not
necessarily need to submit any evidence to succeed on its Civ.R. 60(B) motion, let alone
evidence at a hearing on the motion. Adams, 36 Ohio St.3d at 20-21. As the Court
explained: “It is true that neither Civ.R. 60(B) itself nor any decision from this court has
required the movant to submit evidence, in the form of affidavits or otherwise, in support of
the motion, although such evidence is certainly advisable in most cases. But the least that
can be required of the movant is to enlighten the court as to why relief should be granted.”
Id.
{¶ 25} Second, counsel for Cedar Grove made it clear at the beginning of the
October 17, 2025 hearing that Cedar Grove was relying on its motion rather than presenting
any testimony at the hearing. Attached to Cedar Grove’s Civ. 60(B) motion were
McDermott’s affidavit, letters from legal counsel, a copy of Cedar Grove’s declaration and
bylaws, and minutes from Cedar Grove’s board meetings. The statement by Cedar Grove’s
9 counsel at the hearing put Talismanic and the trial court on notice that Cedar Grove was
relying on its motion and the documents attached to the motion. The fact that Cedar
Grove’s counsel did not then ask the trial court to admit the motion and its supporting
documents into evidence does not affect whether the trial court could rely on the motion and
supporting documents when making its determination under Civ.R. 60(B).
{¶ 26} Third, the legal authority Talismanic cites in its appellate brief did not preclude
the trial court from considering Cedar Grove’s motion and the factual evidence submitted
with the motion. In making its argument that the trial court could consider only the testimony
and exhibits presented at the hearing, Talismanic relies on the following passage from Bates
& Springer, Inc. v. Stallworth, 56 Ohio App.2d 223 (8th Dist. 1978): “If the trial court
exercises its discretion and grants a hearing on the motion, any appeal taken from the court’s
action thereon is not decided upon the material submitted with the motion but upon whether
the evidence introduced at the hearing satisfies the three requirements of GTE.” Id. at 228.
According to Talismanic, as articulated by Stallworth, the trial court could not rely on Cedar
Grove’s motion and the factual evidence submitted with the motion once the trial court held
a hearing on the motion. But Talismanic fails to put the quote from Stallworth in its proper
context.
{¶ 27} In Stallworth, the Eighth District was faced with a situation where the movant
failed to submit with his motion factual material sufficient to justify relief from judgment. Id.
The appellate court noted that the better practice would have been for the trial court to have
summarily denied the motion. However, the appellate court stated that the trial court could
exercise its sound discretion to hold an evidentiary hearing. Once the trial court exercised
this discretion and held a hearing, the Eighth District announced the unremarkable
10 proposition that an appellate court must also review the evidence submitted at the hearing
and whether that evidence satisfied the GTE requirements. Id. The court explained:
The sufficiency of the applicant’s motion and any supporting factual material
submitted to the trial court, standing alone, does not determine the result on
appeal. The three requirements for obtaining relief from judgment under
Civ.R. 60(B) create factual questions. Therefore, to demonstrate error in the
trial court’s disposition of such a motion after an evidentiary hearing, an
appellant must supply the reviewing court with either a verbatim or narrative
transcript of the evidence presented at the hearing. Once the trial court grants
a hearing, the parties should be on guard to protect themselves for a
subsequent appeal by securing a transcript of the evidence presented during
the proceeding. See App.R. 9(B) and 9(C).
With motions under Civ.R. 60(B) as with other motions after an
evidentiary hearing is held in the court below, a reviewing court cannot
necessarily determine that error occurred in the trial court by looking only to
the motion and its supporting materials. In the absence of all the relevant
evidence introduced at the hearing in support of and in opposition to the motion
for relief from judgment, a reviewing court must indulge the presumption of
regularity of the proceedings and the validity of the judgment in the trial court.
Ostrander v. Parker-Fallis (1972), 29 Ohio St.2d 72, 278 N.E.2d 363.
(Emphasis added.) Id. In Stallworth, the appellant failed to submit a transcript from the
evidentiary hearing, and the motion itself failed to satisfy Civ.R. 60(B). The Stallworth Court
did not hold that a Civ.R. 60(B) motion and factual evidence submitted with the motion could
not be considered by a trial court once a hearing was held on the motion. Rather, the
11 Stallworth decision made it clear that a reviewing court needs to review both the motion and
the evidence presented at the hearing. In short, a trial court is not precluded from
considering the arguments and evidence presented in a Civ.R. 60(B) motion simply because
the court subsequently holds a hearing on the motion. Talismanic’s arguments to the
contrary are unpersuasive.
{¶ 28} Talismanic also contends that even if the trial court properly considered the
affidavit of Mike McDermott, the affidavit lacked allegations based on personal knowledge
sufficient to support Cedar Grove’s Civ.R. 60(B) motion. Talismanic emphasizes that
McDermott’s affidavit included several allegations based “upon information and belief,”
which are not indicative of personal knowledge. Appellant’s Brief, p. 10-11, citing Wells
Fargo Bank, N.A. v. Goebel, 2014-Ohio-472, ¶ 19 (2d Dist.).
{¶ 29} We have reviewed McDermott’s affidavit. While we acknowledge that
McDermott used the phrase “upon information and belief” a number of times in his affidavit,
this is not fatal to Cedar Grove’s Civ.R. 60(B) motion. McDermott stated that he is the
President of the Board of Directors of Cedar Grove and that he is one of the custodians for
and assists with maintaining the books and records of Cedar Grove. These averments
establish his personal knowledge of the financial records of Cedar Grove. He also asserted
that the promissory note violated Cedar Grove’s declaration and bylaws. McDermott based
this assertion on “information and belief” and “the current Board’s review of financial
statements and other records.” McDermott Affidavit, ¶ 10. McDermott also alleged that
the Board of Directors that was comprised of Tomb, her sister, and her son improperly
authorized Cedar Grove to remit Cedar Grove’s funds to Talismanic in violation of the
express terms of Cedar Grove’s “Declaration and Bylaws.” Id. at ¶ 11. McDermott based
this averment on “information and belief” and the “Board’s meeting minutes.”
12 {¶ 30} McDermott’s affidavit contained sufficient allegations based on his personal
knowledge as the President of the Board of Directors of Cedar Grove to call into question
whether the promissory note was valid and whether it improperly included expenses for
which Cedar Grove was not legally responsible. These allegations qualify as meritorious
defenses because they go to the substance or essentials of Talismanic’s complaint against
Cedar Grove. While Cedar Grove may face an uphill battle to prevail on its meritorious
defenses to the cognitive note, we cannot conclude on the record before us that the trial
court abused its discretion in finding that Cedar Grove alleged meritorious defenses.
Adams, 36 Ohio St.3d at 20.
{¶ 31} The first assignment of error is overruled.
III. Second Assignment of Error
{¶ 32} Talismanic’s second assignment of error states:
The Trial Court Erred by Admitting Unauthenticated Hearsay Evidence at the Hearing.
{¶ 33} Talismanic argues that the trial court abused its discretion by admitting Cedar
Grove’s Exhibit B into evidence at the hearing over Talismanic’s hearsay objection.
According to Talismanic, “Exhibit B is an out of court statement that was offered by Appellee
for the truth of its matter asserted – as true financial records of Appellee that Appellee
purports show that Appellant improperly charged expenses back to Appellee.” Appellant’s
Brief, p. 13.
{¶ 34} Cedar Grove responds that Exhibit B does not constitute hearsay because it
was not offered to prove the accuracy of the underlying financial entries. Cedar Grove also
argues that the record was clear that the trial court did not rely on Exhibit B in granting relief
from judgment, which renders any alleged error harmless.
13 {¶ 35} We have reviewed Exhibit B and the testimony from the hearing relating to it.
Exhibit B appears to be a spreadsheet that shows deposits and withdrawals from a checking
account. Tomb testified that she believes that Exhibit B is an altered version of records that
she previously provided to Cedar Grove’s current Board of Directors. Overall, there was
not any useful testimony at the hearing relating to Exhibit B on which the trial court could
have relied to grant or deny the default judgment. Rather, Tomb protested several times
that Exhibit B was altered and that there were better records that showed what amounts
were deposited and withdrawn from Cedar Grove’s checking account.
{¶ 36} Notably, the trial court did not reference Exhibit B anywhere in its order
granting Cedar Grove’s Civ.R. 60(B) motion. Based on the record before us, we conclude
that the trial court did not rely on Exhibit B in ruling on Cedar Grove’s Civ.R. 60(B) motion.
As explained in our resolution of Talismanic’s first assignment of error, Cedar Grove
presented sufficient operative facts through McDermott’s affidavit and accompanying
documents to support its Civ.R. 60(B) burden. Therefore, any alleged error committed by
the trial court in admitting Exhibit B into evidence was harmless.
{¶ 37} The second assignment of error is overruled.
IV. Conclusion
{¶ 38} Having overruled the assignments of error, we affirm the judgment of the trial
court.
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EPLEY, J., and HANSEMAN, J., concur.