COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59196 ROBERT BRINDLEY : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS CASGAR : : Defendant-appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 7, 1991 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 174044 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: JOEL I. NEWMAN, ESQ. CHARLES G. DEEB, ESQ. 716 Leader Bldg. 4230 State Route 306 Cleveland, OH 44114 Willoughby, OH 44094 ALVIN I. GILMORE, ESQ. 724 Statler Office Tower 1127 Euclid Avenue Cleveland, OH 44115 - 2 - PATTON, J., On April 4, 1989, plaintiff-appellee, Robert Brindley, obtained a judgment of $263,499.45 against defendant-appellant Thomas Casgar. The judgment was obtained in the Superior Court, DeKalb County, Georgia. Appellant was personally served and personally present during the course of the proceedings. On August 4, 1989, appellee filed in the Cuyahoga County Court of Common Pleas a praecipe and affidavit to file foreign judgment, pursuant to R.C. 2329.023, in order to enforce his judgment against the appellant. On September 20, 1989, the trial court ordered the filing of the foreign judgment. Thereafter on October 24, 1989, appel- lant filed a motion for relief from judgment pursuant to Civ. R. 60(B) alleging failure of service. On January 5, 1990, the appellant's motion for relief from judgment was denied by the trial court. The appellant submitted an App. R. 9(C) proposed statement of the facts. In response, the appellee submitted objections to the proposed statement. The trial court adopted the appellant's proposed App. R. 9(C) statement as amended by the appellee's objections and further stated that where there is a direct con- flict between the two, appellee's version is to prevail. Appellant's first three assignments of error are inter- related and will be discussed together. They provide: I. THE APPELLEE HAS NOT OFFERED PROPER PROOF THAT THE NOTICE OF FILING AND FOREIGN JUDGMENT WAS SENT TO - 3 - DEFENDANT AND THEREFORE THE CLERK'S FAILURE TO MAIL NOTICE TO THE APPELLEE/JUDGMENT DEBTOR IS FATAL TO THE APPELLANT'S CAUSE. II. THE APPELLEE HAS NOT SENT NOTICE TO THE APPEL- LANT'S LAST KNOWN ADDRESS OF FACT AND THEREFORE, APPELLEE HAS NOT COMPLIED WITH THE MANDATORY PROCEDURE SET FORTH IN O.R.C. 2329.023. SUCH FAILURE TO FOLLOW THE PROCEDURE SET FORTH DENIES THE LOCAL ENFORCEMENT OF THE FOREIGN JUDGMENT. III. THE APPELLEE HAS NO OFFERED SUFFICIENT PROOF THAT THE NOTICE OF THE FILING OF THE FOREIGN JUDGMENT WAS MAILED TO THE APPELLANT AT HIS LAST KNOWN ADDRESS OF FACT. In essence, appellant argues the appellee has failed to comply with the notice requirements contained in R.C. 2329.023 which precludes local enforcement of appellee's foreign judgment. Appellant's argument lacks merit. R.C. 2329.023(A) and (B) provide: (A) When a foreign judgment is filed pursuant to section 2329.022 of the Revised Code, the judgment creditor or his attorney shall make and file with the clerk of court in which the foreign judgment is filed an affidavit setting forth the name and last known address of the judgment debtor and of the judgment creditor. (B) Upon the filing of a foreign judgment pur- suant to section 2329.022 of the Revised Code and the affidavit pursuant to division (A) of this section, the judgment creditor or his attorney shall file with the clerk of court a praecipe instructing the clerk to issue a notice of the filing of the foreign judgment to the judgment debtor at the address given in the affidavit. The clerk shall enter a note of the mailing in the docket. The notice shall include the name and address of the judgment creditor, and of the judgment creditor's attorney, if any, in this state. In addition, the judgment creditor may mail a notice of the filing of the foreign judg- ment to the judgment debtor and may file proof of mailing with the clerk. The failure of the clerk - 4 - to mail to the judgment debtor notice of the filing of the foreign judgment does not affect the enforcement proceedings with respect to the foreign judgment, if the judgment creditor has filed proof that he mailed a notice of the filing to the judgment debtor. R.C. 2329.023(B) requires that either the clerk of court or the creditor send notice of the filing of a foreign judgment to the last known address of the judgment debtor. Even if the clerk of court fails to mail notice of the filing of the foreign judgment to the judgment debtor, this does not affect the enforcement proceedings provided the judgment creditor has filed proof of service with the court indicating notice of the filing of the foreign judgment was sent to the judgment debtor. In the instant case the time-stamped copy of the affidavit to file foreign judgment includes proof of service indicating that a true copy of the affidavit to file foreign judgment was sent to Thomas Casgar's last known address by the attorney for the appellee. The record also contains a copy of the August 4, 1989 letter which was sent to appellant, together with the affidavit to file foreign judgment. Thus, we conclude the trial court correctly found that a copy of the affidavit, praecipe and certificate of service were sent to appellant's last known address by the attorney for the appellee. Accordingly, we find, as did the trial court, appellee has complied with the notice provisions set forth in R.C. 2329.023(B) and that appellee was served as required by statute. - 5 - Appellant's first, second and third assignments of error are overruled. Appellant's fourth assignment of error provides: IV. THE COURT SHOULD HAVE GRANTED THE MOTION FOR RELIEF FROM JUDGMENT SINCE APPELLANT'S DUE PROCESS WAS DENIED. Appellant alleges the trial court erred by denying his motion for relief from judgment. Appellant's contention lacks merit. Civ. R. 60(B) provides in relevant part as follows: On motion and upon such terms as are just, the court may relieve a party or his legal repre- sentative from a final judgment, order or pro- ceeding 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 satis- fied, 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 appli- cation; 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. *** The Ohio Supreme Court has held as follows regarding relief from judgment: In order to prevail on a motion for relief from judgment pursuant to Civ. R. 60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) timeliness of the motion. GTE Automatic Electric v. ARC Industries (1976), 47 - 6 - Ohio St. 2d 146, 1 O.O. 3d 86, 351 N.E.2d 113, paragraph two of the syllabus. If any of these three requirements is not met, the motion should be overruled. Svoboda v. Brunswick (1983), 6 Ohio St. 3d 348, 351, 6 OBR 403, 406, 453 N.E.2d 648, 651. The question of whether relief should be granted is addressed to the sound discretion of the trial court. Griffey v. Rajan (1987), 33 Ohio St. 3d 75, 77, 514 N.E.2d 1122, 1123. (Emphasis added.) Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 19, 20. Furthermore, this court has stated: In order to prevail, the allegation of operative facts must be of such evidentiary quality as affidavits, depositions, answers to interroga- tories, written admissions, written stipulations, or other sworn testimony. Unsworn allegations of inoperative facts contained in a motion for relief from judgment or in the brief attached to the motion are not sufficient evidence upon which to grant the motion. East Ohio Gas Co. v. Walker (1978), 59 Ohio App. 2d 216, 13 O.O. 3d 234, 394 N.E.2d 348, syllabus. Dawson v. Udelson (1987), 37 Ohio App. 3d 141, 142. Examination of appellant's motion for relief from judgment reveals the appellant has failed to demonstrate a meritorious claim or defense. Appellant contends he raised a meritorious defense citing his claims that the Georgia court denied him due process when they failed to grant him a continuance and denied him the opportunity to present evidence and cross-examine creditor's witnesses. In essence, appellant impermissibly attempts to collaterally attack the proceedings conducted in the Georgia court. A judgment of a sister state's court is subject to col- lateral attack in Ohio if there was no subject matter or personal - 7 - jurisdiction to render the judgment under the sister state's law, and under that law the judgment is void. Valley Imports, Inc. v. Simonetti (Mar. 15, 1991), Lake County App. No. 90-L-14-080, unreported, citing Litsinger Sign Co., Inc. v. American Sign Co. (1967), 11 Ohio St. 2d 1, paragraph one of the syllabus. If, however, the defendant has submitted to the jurisdiction of the sister state, collateral attack is precluded. Speyer v. Con- tinental Sports Cars, Inc. (1986), 34 Ohio App. 3d 272. In the instant case it is uncontroverted that the appellant submitted to the jurisdiction of the Georgia court when he entered an appearance therein. Therefore, appellant is precluded from collaterally attacking the Georgia judgment in his Civ. R. 60(B) motion for relief from judgment. Accordingly, appellant has failed to demonstrate a meritorious claim or defense which would entitle him to relief. Thus, the denial of defendant's motion for relief from judgment was proper under the circumstances of this case. The second assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J. SPELLACY, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .