Hornyak v. Brooks

Markus, J. Plaintiff appeals from an order denying his motion to vacate an agreed judgment, which the court had entered approximately thirteen months earlier. The trial court had discretion to deny that motion without a further evidentiary hearing, so we affirm. Plaintiff’s complaint sought $200,000 damages for personal injuries in a motor vehicle collision almost two years earlier between his car and defendant’s car. The trial court’s file contains no information about the nature of that collision or any claimed injuries, beyond minimal allegations in plaintiff’s complaint. 1 Ten months after plaintiff filed his complaint, when the court scheduled the case for trial, the two parties apparently reached an agreed settlement. Accordingly, the court entered its judgment on February 8, 1982, directing *106 that the case was settled and dismissed with prejudice at defendant’s costs. On February 18,1983, plaintiff filed a motion for relief from that judgment pursuant to Civ. R. 60(B). The only evidentiary material which plaintiffs counsel supplied to support his motion was plaintiffs affidavit. The relevant portions of that affidavit state: “The said Judgment should not have been entered as the parties hereto had tentatively agreed to a compromise and settlement of this matter, whereby Defendant delivered to Plaintiff a ‘Receipt and Release and Covenant Not to Sue’; “Plaintiff never executed said Receipt and Release nor did Plaintiff accept the tendered settlement in this matter in the amount of Nine Thousand Dollars ($9,000.00); “Plaintiff has required and received extensive medical and surgical care since the date of the proposed settlement, all as a result of the accident. “The Judgment Entry mentioned hereinabove, if not vacated, will cause Plaintiff undue prejudice and harm, precluding him from a proper recovery.” Plaintiff’s sole assigned error asserts: “The trial court erred in failing to' grant appellant’s motion for relief from judgment pursuant to Rule 60(B)(5) of the Ohio Rules of Civil Procedure where it was shown that the judgment entered below was erroneous and not supported by the true actions and intentions of the parties.” The requirements for a motion seeking relief from judgment are set forth in paragraph two of the syllabus of GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St. 2d 146 [1 O.O.3d 86]: “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)(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.” The trial court has discretion in ruling on such a motion. Unless the mo-vant’s affidavit or other evidentiary materials demonstrate grounds for the motion, the trial court does not abuse its discretion by denying the motion without a hearing. Tom McSteen Co. v. Thomas Maloney, Inc. (1974), 39 Ohio App. 2d 31 [68 O.O.2d 173]; Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App. 2d 223 [10 O.O.3d 227]. The evidentiary materials must present “operative facts” and not mere general allegations to justify relief. East Ohio Gas Co. v. Walker (1978), 59 Ohio App. 2d 216 [13 O.O.3d 234]; Adomeit v. Baltimore (1974), 39 Ohio App. 2d 97, at 105 [68 O.O.2d 251], In this case, plaintiff sought relief from the previously entered agreed judgment pursuant to Civ. R. 60(B)(5): “any other reason justifying relief from the judgment.” However, plaintiff’s affidavit and his counsel’s brief recite facts which justify relief for “mistake, inadvertence, surprise or excusable neglect,” if they justify relief at all. Civ. R. 60(B)(1); cf. Sloan v. Standard Oil Co. (1964), 177 Ohio St. 149 [29 O.O.2d 355]. There is some doubt whether the asserted facts justify relief from the agreed judgment. Cf. Willis v. Mickey’s Bi-Rite (Jan. 29, 1981), Cuyahoga App. No. 42425, unreported. In those circumstances, the court had no authority to consider the motion as complying with Civ. R. 60(B)(5). That “catchall” provision cannot be used as a substitute for another ground specified in Civ. R. 60(B). Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St. 3d 64, 66; Adomeit v. Baltimore, supra; Antonopoulos v. Eisner (1972), 30 Ohio App. 2d 187, 193 [59 O.O.2d 309]. *107 Plaintiff failed to supply any eviden-tiary material which demonstrated that he filed his motion within the time allowed. On its face, the motion shows that it was filed more than one year after the judgment he seeks to vacate. As a motion under Civ. R. 60(B)(1), his request was then absolutely barred. Even if he asserted grounds cognizable under Civ. R. 60(B)(5), he failed to show it was filed within a reasonable time after he discovered his error. Cf. Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App. 2d 285, 289 [18 O.O.3d 319] (motion under Civ. R. 60[B][5] filed seven months after notice of the action and four months after default entry is not filed “within a reasonable time”). Additionally, the plaintiff supplied no evidentiary material to demonstrate the validity of his underlying claim. His original pleading will not suffice for that' purpose. Adomeit v. Baltimore, supra, at 105; East Ohio Gas Co. v. Walker, supra, at 221; Bates & Springer v. Stallworth, supra, at 228. Therefore, the court did not err by denying his motion for relief from the settlement judgment without an eviden-tiary hearing. Plaintiff’s assigned error lacks merit. The trial court’s judgment is affirmed. Judgment affirmed. CORRIGAN, P.J., concurs. Patton, J., dissents. Footnotes [1] The court conducted no evidentiary hearing on plaintiffs motion for relief from judgment. However, the parties have provided this court with an agreed statement as part of the record on appeal pursuant to App. R. 9(D). Since the agreed statement does not purport to describe evidence available to the trial judge when he ruled, it has dubious significance here. In any event, the information contained in the agreed statement is completely consistent with the facts relied upon for this decision.