East Ohio Gas Co. v. Walker

• Decision Date: 17 August 1978
• Citation: 13 O.O.3d 234,394 N.E.2d 348,59 Ohio App.2d 216
• Parties: , 13 O.O.3d 234 The EAST OHIO GAS COMPANY, Appellee, v. WALKER et al., Appellants.
• Court: Ohio Court of Appeals

Page 216

59 Ohio App.2d 216

394 N.E.2d 348, 13 O.O.3d 234

The EAST OHIO GAS COMPANY, Appellee, v. WALKER et al., Appellants.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 17, 1978.

Syllabus by the Court

The allegation of operative facts required in order to prevail upon a motion for relief from judgment pursuant to Civ.R. 60(B) must be of such evidentiary quality as affidavits, depositions, answers to interrogatories, written admissions, written stipulations, or other sworn testimony. Unsworn allegations of operative facts contained in a motion for relief from judgment filed under Civ.R. 60(B) or in a brief attached to the motion are not sufficient evidence upon which to grant a motion to vacate judgment.

Ginn & Haase, Cleveland, for appellee.

Jerome Dachman, Cleveland, for appellants.

KRENZLER, Presiding Judge.

The plaintiff-appellee, The East Ohio Gas Company, hereinafter referred to as the appellee, filed an amended complaint on June 16, 1975, in The Cleveland Municipal Court against defendant-appellant Edith Walker, hereinafter referred to as the appellant, and defendant Thomas Walker, alleging that defendants owed appellee $313.69 upon account. Copies of the accounts were attached as exhibits. These accounts depict amounts owed for gas service rendered to the premises at 1323 East 91st Street, Cleveland, Ohio. The defendants filed separate answers denying the allegations of the complaint. The appellant further asserted in her answer that during the months of October, November, December, 1973, through and including January 11, 1974, the premises were in the sole and exclusive control, care and management of defendant Thomas Walker during that period of time; that the obligation to the appellee is that of Thomas Walker; and that prior to January 25, 1974, the appellant had not contracted with the appellee to furnish gas to the premises.

On October 22, 1976, the trial judge entered the following judgment:

"Case called. All parties present except defendant Edith Walker and her counsel. Trial held. Case dismissed as to Thomas Walker. Judgment for the Plaintiff in the amount of $313.69 plus costs vs Defendant Edith Walker."

On October 28, 1976, the appellant filed a motion to vacate the judgment under Civ.R. 60(B) and for a new trial under Civ.R. 59(A) accompanied by a brief in support of the motion and an affidavit of appellant's counsel. In her motion the appellant alleged the following relevant facts:

"Defendant says that she appeared for trial accompanied by counsel on October 21, 1976. Defendant's counsel made the Court aware of such presence through the bailiff. At the time the case was called defendant and defendant's counsel were inadvertently not called and thereby excluded from the proceedings which took place in chambers. At said proceedings judgment was taken against defendant Edith Walker.

"Defendant says that she and defendant's counsel were present, ready, and willing to go to trial. Further, that defendant's counsel made the court aware of such presence through the bailiff. Since the bailiff was aware of defendant's counsel's presence and defendant and defendant's counsel were excluded from the proceedings, defendant prays for a new trial pursuant to Ohio Civil Rule 59(A)(1) and (3) or in the alternative for relief from judgment pursuant to Ohio Civil Rule 60B(60(B))."

The brief in support of the appellant's motion contains the following pertinent factual allegations:

"It has been held that a motion for relief from judgment pursuant to Rule 60B(60(B)) must present material which demonstrates: (1) Timeliness of the motion. (2) Reasons for seeking relief. (3) A defense, Adomeit v. Baltimore, 68 Ohio Op.2d 251, 39 Ohio App.2d 97, 316 N.E.2d 469.

"Ohio Civil Rule 60B(60(B)) requires that in order for a motion to be timely, it must be filed within a reasonable period of time or one year, whichever is less. This motion, as can be ascertained from the Clerk's stamp, was filed within ten (10) days of the judgment entry and consequently is certainly timely.

"The operative facts in the instant case succinctly put are: defendant and defendant's counsel were present at the time of trial, but were never called to the proceedings which took place in chambers. These facts clearly fall within the framework of Ohio Civil Rule 60B(1)(60(B)(1)). The attached affidavit provides additional evidence of such operative facts.

"Finally, defendant says she has a good and complete defense to the Complaint. First, defendant, Edith Walker, says that she was never indebted to plaintiff and she never contracted for plaintiff's services which are the basis of plaintiff's accounts. Further, defendant, Edith Walker, says that the obligation to plaintiff is that of defendant Thomas Walker as he had exclusive use, management, and collected rents of the premises during the period of time in question, to-wit: September through December, 1973."

In the affidavit attached to the motion appellant's counsel alleged the following operative facts:

"I, Terrence Durica, do hereby state that on October 21, 1976, I, acting as counsel for defendant Edith Walker in the Cleveland Municipal Court Case No. B-99584 was present in and about the appointed court room and chambers at the time appointed for trial.

"Further, I made my presence known to the Court's bailiff; however, when the case was heard in chambers, neither myself nor the defendant, Edith Walker, who was also present, were called into chambers. Further affiant sayeth not."

The appellee did not file a brief in opposition to the appellant's motion nor did it file any affidavits or submit any controverting facts to the trial court.

The trial judge overruled the appellant's motion to vacate the judgment and for a new trial. The appellant filed a timely appeal and assigns the following error for our review:

"The trial court erred when it denied defendant's motion for a new trial pursuant to Ohio Civil Rule 59 and in the alternative to vacate the judgment pursuant to Ohio Civil Rule 60."

We will first consider the appellant's motion to vacate the judgment.

The Ohio rule dealing with relief from judgment is Civ.R. 60(B) which provides as follows:

"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 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.

"The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules."

The express language of this rule and subsequent case law have established three requirements that must be met to prevail on a motion under the rule. The movant must demonstrate that: (1) he is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); (2) the party has a meritorious defense or claim to present if relief is granted; and, (3) the motion is filed within a reasonable time and for reasons stated in Civ.R. 60(B)(1), (2) and (3), not more than one year after the judgment, order or proceeding was entered or taken. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 102-103, 316 N.E.2d 469.

In Adomeit v. Baltimore, supra, we held that each of these three requirements must be demonstrated by operative facts presented in materials accompanying the motion. Our emphasis in that case was on the necessity of putting forth such operative facts and of not relying upon mere conclusions of law in requesting relief from judgment. In the present case we are concerned with the question of the proper form or qualitative nature that such evidence must take in order for a movant to prevail under Civ.R. 60(B). With regard to this issue it was suggested in Adomeit v. Baltimore, supra, that the rigid procedures of Civ.R. 56 regarding material that may be submitted in support of and in opposition to motions for summary judgment were an excellent guide to be followed in seeking relief under Civ.R. 60(B).

The specific issue that we must now decide is whether unsworn allegations of operative facts which are contained in a brief or in the motion itself but not presented by affidavit or other evidentiary materials are sufficient upon which to grant a vacation of a judgment. To pose the question in another manner, does a vacation of judgment pursuant to a motion under Civ.R. 60(B) require factual allegations in a form that meets evidentiary standards such as affidavits, depositions, transcripts of evidence, written stipulations or other evidence given under oath? Our conclusion is that such evidentiary standards must be met to prevail upon a motion for relief from judgment. Accord, Tom McSteen Co. v. Thomas Maloney, Inc. (1974), 39 Ohio App.2d 31, 314 N.E.2d 392; Contra, Brenner v. Shore (1973), 34 Ohio App.2d 209, 297 N.E.2d 550; Matson v. Marks (1972), 32 Ohio App.2d 319, 291 N.E.2d 491.

When considering a request pursuant to Civ.R. 60(B) the court is asked to vacate a judgment to which attaches a presumption of regularity. Ostrander v. Parker-Fallis (1972),...