COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59409 JOHN M. HORN : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : FORD MOTOR CO., ET AL. : OPINION : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 157034. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Robert F. Voth, Esq., Landskroner & Phillips Co., LPA, 75 Public Square, 11th Floor, Cleveland, Ohio, 44113. For Defendant-appellees: Aubrey B. Willacy, Esq., Willacy & LoPresti, 700 Western Reserve Building, 1468 West Ninth Street, Cleveland, Ohio 44113; Gary L. Hayden, Esq., Office of the General Counsel, Ford Motor Company, Three Parklane Boulevard, 1500 Parklane Towers West, Dearborn, Michigan, 48126. For Appellee Ohio Industrial Commission: Patrick H. Lewis, Esq., Assistant Attorney General, 615 W. Superior Avenue, Suite 1200, Cleveland, Ohio, 44113. -2- SWEENEY, JAMES D., J.: Plaintiff-appellant John Horn ("Horn") appeals in this workers compensation action from the denial of Horn's motion for relief from judgment made pursuant to Civ. R. 60(B). For the reasons adduced below, we affirm. A review of the record reveals that Horn allegedly was injured while working in the course and scope of his employment at defendant-appellee Ford Motor Company ("Ford") on July 21, 1986. Thereafter, Horn filed an application for benefits with the Industrial Commission. On February 5, 1987, the District Hearing Officer disallowed Horn's claim. Horn then appealed this decision to the Cleveland Regional Board of Review. On September 2, 1987, the Regional Board of Review vacated the Hearing Officer's decision and awarded Horn temporary total disability benefits. Ford, on March 28, 1988, filed an appeal from the Regional Board of Review's order with the Industrial Commission. On June 30, 1988, the Industrial Commission denied Ford's appeal. Ford received notice of the Industrial Commission's denial on August 8, 1988. On September 22, 1988, Ford filed its notice of appeal in Cuyahoga County Common Pleas Court pursuant to R.C. 4123.519. On October 4, 1988, Horn filed a "complaint with interrogatories attached." The matter was scheduled for trial on August 7, 1989, at -3- 9:00 a.m. Ford requested a continuance of the trial date on June 29, 1989. This request was denied on July 18, 1989. Horn, being unable to schedule his medical expert's deposition prior to the deadline for filing the deposition with the court for use at trial, filed a notice of voluntary dismissal without prejudice pursuant to Civ. R. 41(A)(1)(a) on August 3, 1989, with service by mail on Ford's counsel. On August 9, 1989, the court entered judgment in favor of Ford. Journal Vol. 1173, pages 731-732. In this judgment entry, the court noted that: plaintiff Horn had voluntarily dismissed his complaint on August 3, 1989; Horn failed to appear for trial on August 7, 1989. On August 31, 1989, Horn filed a motion for relief from judgment pursuant to Civ. R. 60(B), titling this motion as a "motion to vacate judgment." Following a brief by Ford opposing relief from judgment and a reply brief by Horn, the court overruled the motion for relief on February 6, 1990. Horn filed his notice of appeal on March 2, 1990, from the denial of the motion for relief from judgment. Two assignments of error are presented for review. These assignments will be discussed jointly. I THE TRIAL COURT ERRED BY ENTERING AN EX PARTE JUDGMENT IN AN ACTION FILED UNDER O.R.C. SECTION 4123.519 IN FAVOR OF THE DEFENDANT AFTER THE COMPLAINT HAD BEEN VOLUNTARILY -4- DISMISSED PURSUANT TO OHIO CIVIL RULE 41(A)(1)(a). II THE TRIAL COURT ERRED WHEN IT DENIED THE PLAINTIFF'S MOTION TO VACATE JUDGMENT. Whether the trial court should have applied Civ. R. 41(A)(1)(a) should have been directly appealed following the judgment entry of August 9, 1989. It was not directly appealed. Additionally, a motion for relief from judgment is not a substitute for a direct appeal. Brick Processors, Inc. v. Culbertson (1981), 2 Ohio App. 3d 478. Assignment of error number one is therefore overruled. We now turn our attention to the trial court's denial of relief under Civ. R. 60(B). The standard for obtaining relief under Civ. R. 60(B) was pronounced by the supreme court in GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St. 2d 146, paragraph two of the syllabus: 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. Each of the three requirements in GTE must be demonstrated by way of presenting operative facts with the motion for relief. East Ohio Gas Co. v. Walker (1978), 59 Ohio App. 2d 216 and -5- Adomeit v. Baltimore (1974), 39 Ohio App. 2d 97, 102-103. Failure to establish one of the GTE requirements is fatal to the claim for relief from judgment. Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App. 2d 285. Horn's motion for relief from judgment, grounded under Civ. R. 60(B)(1), asserted that he was "surprised" by an alleged "medical emergency" which required the cancellation of his medical expert's scheduled deposition. Without a medical expert deposition, he was allegedly left with no choice but to voluntarily dismiss the complaint. Attached to this motion were copies of his notice of dismissal and a cover letter to Ford's counsel concerning the dismissal. Following opposition to relief by the non-moving party, plaintiff was given leave of court to file a reply brief. This reply brief by plaintiff contained affidavits by: Robert Phillips, trial counsel for plaintiff; Arthur Dombek, an associate in the plaintiff counsel's law firm; and Robert Voth, an associate in plaintiff counsel's law firm who had worked on the case. Mr. Phillips averred that: he had scheduled the deposition of the medical expert for Thursday, August 3, 1989, at 7:00 p.m.; on the afternoon of August 3, 1989, the doctor's secretary advised him that the doctor was unavailable for the deposition; he advised defense counsel that he would have to voluntarily dismiss the complaint due to the failure to depose the doctor. Mr. Dombek averred that on the afternoon of August 3, 1989, defense counsel called and asked for a copy of the notice of dismissal. Mr. Voth averred that: he -6- had prepared the notice of deposition of the doctor; he agreed to concur in defense counsel's request for a trial continuance in late June, but that the court denied the continuance; he was advised on August 4, 1989, that the deposition had not gone forward due to an emergency and that the complaint had been dismissed. The issue of emergency notwithstanding, Horn failed to demonstrate, by way of presenting operative facts, that he had a "meritorious defense or claim to present if relief is granted." GTE, supra; East Ohio Gas, supra. Having failed to demonstrate one of the three GTE requirements, the court did not abuse its discretion in denying relief from judgment. Assignment number two is overruled. Judgment affirmed. -7- It is ordered that appellees recover of appellant their 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 Common Pleas Court 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. Exceptions. DYKE, P.J., and MCMANAMON, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .