COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59501 IVAN SAWCHYN : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : NATIONAL CITY BANK, ET AL. : OPINION : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 161072. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Ivan Sawchyn, pro se 14410 Uhlin Drive Cleveland, OH 44130 For Defendants-Appellees: Arthur Tassi, Esq. Vorys, Sater, Seymour & Pease 2100 One Cleveland Center Cleveland, OH 44114-1724 -2- MATIA, P.J.: Plaintiff-appellant, Ivan Sawchyn, appeals from the judgment of the Cuyahoga County Court of Common Pleas which denied the appellant's Civ. R. 60(B) motion for relief from judgment. In addition, the appellant has appealed from various substantive and procedural rulings of the trial court which were made prior to the denial of the appellant's motion for relief from judgment. The appellant's appeal is not well taken. I. THE FACTS A. THE GARNISHMENT OF THE APPELLANT'S BANK FUNDS On November 22, 1988, defendant-appellee, National City Bank, and defendant-appellee, George T. Simon, received a garnishment order from the Cleveland Municipal Court which ordered the attachment of all funds which were on deposit in the name of the appellant. On November 30, 1988, appellee-National City Bank paid to the Cleveland Municipal Court the following funds which were being held on behalf of the appellant: 1) account no. 7056058 - $17,368.32; 2) account no. 1821046- $282.01; 3) account no. 5308794 - $352.66; 4) account no. 7821397 - $374.98; and 5) account no. 402064502 - $2,387.03. B. THE APPELLANT'S COMPLAINT On December 2, 1988, the appellant filed a complaint in the Cuyahoga County Court of Common Pleas against appellee-National City Bank and appellee-George T. Simon. The appellant's complaint alleged that the payment of the appellant's funds to the Cleveland Municipal Court constituted fraud, bad faith, -3- breach of contract and the infliction of emotional distress on the part of the appellees. C. THE APPELLEES' JOINT MOTION FOR SUMMARY JUDGMENT On August 30, 1989, the appellees filed a motion for summary judgment with regard to all the claims as raised in the appellant's complaint. On November 6, 1989 the trial court granted the appellees' joint motion for summary judgment which resulted in the entry of a final judgment on behalf of the appellees. D. THE APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT On February 12, 1990, the appellant filed a Civ. R. 60(B) motion for relief from judgment. On March 1, 1990, the trial court denied the appellant's motion for relief from judgment. E. THE APPELLANT'S APPEAL Thereafter, the appellant brought the instant appeal from the judgment of the trial court which denied the appellant's motion for relief from judgment and granted the appellees' joint motion for summary judgment. II.THE SIMULTANEOUS CONSIDERATION OF THE FIRST, SECOND, THIRD, FIFTH AND SIXTH ASSIGNMENTS OF ERROR Having a common basis in law and fact, this court shall simultaneously consider the appellant's first, second, third, fifth and sixth assignments of error. The appellant's first assignment of error is that: "THE TRIAL COURT ERRED IN CONCLUDING AND RULING THAT THE DEFENDANTS RELEASE TO THE CLEVELAND MUNI (SIC) COURT OF FUNDS PURSUANT -4- TO A GARNISHMENT ORDER AGAINST PLAINTIFF WAS PROPER INASMUCH AS THE PLAINTIFF OBJECTED TO DEFENDANTS BY CERTIFIED LETTER PRIOR TO THE RELEASE OF SUCH FUNDS AND THE DEFENDANTS FAILED TO MAKE ANY DETERMINATION AS TO WHETHER ANY OF THE FUNDS IN 4 (SIC) BANK ACCOUNTS WERE IMMUNE TO GARNISHMENT PURSUANT TO ORCP (SIC) 2329.66 WHICH THEY WERE EXEMPT FROM GARNISHMENT." The appellant's second assignment of error is that: "THE COURT ERRED IN DISMISSING THE PLAINTIFF'S SUPPLEMENTAL PLEADING FILED OCT. 10TH & 13TH, 1989." The appellant's third assignment of error is that: "THE COURT ERRED IN GRANTING THE DEFENDANTS MOTION FOR SUMMARY JUDGEMENT (SIC)." The appellant's fifth assignment of error is that: "THE COURT ERRED IN TOTALLY DISREGARDING EVIDENCE PRESENTED AND CASE LAW GIVEN THAT ALL THE FUNDS IN PLAINTIFF'S SAWCHYN'S PERSONAL CHECKING ACCOUNTS WERE EXEMPT FROM GARNISHMENT." The appellant's sixth assignment of error is that: "THE COURT ERRED IN IGNORING EVIDENCE PRESENTED SHOWING THAT THE PLAINTIFF HAD IN GOOD FAITH ISSUED CHECKS TO A VARIETY OF SUPPLIERS AND OTHER CREDITORS FROM HIS PERSONAL CHECKING ACCOUNTS PRIOR TO ANY NOTICE OF GARNISHMENT HAVING BEEN SERVED ON THE DEFENDANTS. THIS COULD EASILY HAVE BEEN DETERMINED FROM THE PAYEE'S ENDORSEMENTS AND BANK ENDORSEMENTS (SIC), WHICH EVEN IF THERE HAD NOT BEEN EVIDENCE PRESENTED THAT THE DEFENDANTS WERE HOLDING THE PLAINTIFF'S MONEY FROM NOVEMBER 22, 1988 TILL DEC. 1, 1988 OR LATER BEFORE TURNING IT OVER TO THE CLEVELAND MUNI COURT." -5- A. ISSUE RAISED: TRIAL COURT ERRED IN GRANTING APPELLEES' JOINT MOTION FOR SUMMARY JUDGMENT The appellant, through his first, second, third, fifth and sixth assignments of error challenges both substantive and procedural rulings of the trial court which were made prior to the denial of the appellant's motion for relief from judgment. Specifically, the appellant through his first, second, third, fifth and sixth assignments of error argues that the trial court erred in granting summary judgment on behalf of the appellees. The appellant's first, second, third, fifth and sixth assignments of error are not well taken. B. APP. R. 4(A) AND TIME FOR APPEAL IN A CIVIL MATTER App. R. 4(A), which defines the period of time in which to file a timely appeal from a final judgment, provides that: "(A) APPEALS IN CIVIL CASES. In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days of the date of the entry of the judgment or order appealed from. If service of the notice of judgment and its entry is not made on a party within the three-day period provided for in Civ. R. 58(B), then that party shall file the notice of appeal within thirty days of the date of service. A notice of appeal filed before entry of such judgment or order shall be treated as filed after such entry and on the day thereof. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires. "The running of the time for filing a notice of appeal is suspended as to all parties by a timely motion filed in the -6- trial court by any party pursuant to the Civil Rules hereafter enumerated in the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of the last of any of the following orders made upon a timely motion under such rules granting or denying a motion (1) for judgment under Civ.R. 50(B); (2) for a new trial under Civ.R. 59; (3) for vacating or modifying a judgment by objections to a referee's report under Civ.R. 53(E)(7) or Juv.R. 40(D)(7); (4) for findings of fact and conclusions of law under Civ.R. 52. A judgment or order is entered within the meaning of this subdivision when it is entered in compliance with Civ.R. 58." (Emphasis added.) C. APPELLANT'S APPEAL OF THE GRANTING OF THE APPELLEES' MOTION FOR SUMMARY JUDGMENT WAS NOT TIMELY In the case sub judice, the appellant failed to file a timely appeal from the court's granting of the appellees' joint motion for summary judgment. The trial court granted the appellees' joint motion for summary judgment on November 6, 1989 which required the appellant to file a timely appeal no later than December 6, 1989. The notice of appeal was in fact filed on March 19, 1990. In addition, the appellant's period of time for filing a timely appeal was not tolled by operation of App. R. 4(A) since the appellant's request for findings of fact and conclusions of law was not applicable to the trial court's granting of the appellees' motion for summary judgment. Civ. R. 52; Ferdinand v. Hamilton, Local Bd. of Education (1984), 17 Ohio App. 3d 165; Paramount Supply Co. v. Sherlin Corp. (1984), 16 Ohio App. 3d l76. Finally, a motion for relief from judgment may not be used as a substitute for a timely appeal nor will such a -7- motion legitimatize a tardy appeal. Bosco v. City of Euclid (1974), 38 Ohio App. 2d 40; Szantay v. Szantay (March 6, 1986), Cuyahoga App. No. 50286, unreported. Accordingly, this court is without jurisdiction to entertain the appellant's first, second, third, fifth and sixth assignment of error. III. THE APPELLANT'S FOURTH ASSIGNMENT OF ERROR The appellant's fourth assignment of error is that: "THE COURT ERRED IN DENYING THE PLAINTIFF'S MOTION FOR RELIEF FROM JUDGEMENT (SIC) FILED ON FEB. 12, 1990." A. ISSUE RAISED: TRIAL COURT ERRED BY DENYING THE APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT The appellant, in his fourth assignment of error, argues that the trial court erred in denying his Civ. R. 60(B) motion for relief from judgment. Specifically, the appellant argues that he met the three-prong test of GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St. 2d 146 and thus the trial court was required to grant the motion for relief from judgment. The appellant's fourth assignment of error is not well taken. C. CIV. R. 60(B) GOVERNS MOTIONS FOR RELIEF FROM JUDGMENT Civ. R. 60(B), which defines the grounds for the granting of a motion for relief from judgment, provides that: "(B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his -8- 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." D. THE THREE-PRONG TEST OF GTE AUTOMATIC In order to prevail on a Civ. R. 60(B) motion for relief from judgment, the moving party must meet the three-prong test as established in GTE Automatic Electric, Inc. v. Arc Industries Inc., supra. This three-prong test involves the following three requirements: 1) he or she possesses a meritorious claim or defense to present if relief is granted; 2) he or she is entitled to relief under the grounds as stated in Civ. R. 60(B)(1)-(5); and -9- 3) the motion for relief from judgment was made within one year of judgment. Herein, the appellant has failed to meet the first and second prongs of the GTE three-prong test. E. APPELLANT FAILED TO MEET THE FIRST PRONG: NO MERITORIOUS CLAIM Initially, a review of the record fails to disclose that the appellant possessed a meritorious claim to present against the appellees if relief was granted by the trial court. As previously stated, the appellant's claims of fraud, bad faith, breach of contract and the infliction of emotional distress were premised upon the alleged "exempt" status of the appellant's monetary funds as held by appellee-National City Bank which in turn prevented the garnishment of the appellant's monetary funds. The Cleveland Municipal Court, in the matter of Ruffin v. Sawchyn, Cleveland Municipal Court No. 88-CVH-13237, previously determined that the appellant's savings accounts and checking accounts as held by appellee-National City Bank were not exempt from garnishment. This prior decision of the Cleveland Municipal Court, which determined that the appellant's funds were not exempt from garnishment, could not be relitigated by the appellant in the present matter through the application of the doctrines of res judicata and collateral estoppel. Goodson v. McDonough Power Equip., Inc. (1983), 20 Ohio St. 3d 193; Crile, et al. v. Hall, et al. (Oct. 24, 1991), Cuyahoga App. No. 59187, unreported. Thus, the inability of the appellant to prosecute -10- his claims of fraud, bad faith, breach of contract and emotional distress as based upon "exempt" monetary funds resulted in a failure of the first prong of the GTE three-prong test. F. APPELLANT FAILED TO MEET THIRD PRONG: NO GROUNDS FOR RELIEF PRESENTED Further review of the record fails to disclose that the appellant possessed any of the grounds necessary for relief as provided in Civ. R. 60(B)(1)-(5). The appellant failed to demonstrate: 1) mistake, inadvertence, surprise or excusable neglect; 2) newly discovered evidence; 3) fraud; 4) satisfaction or release of judgment; or 5) any other reason justifying relief from judgment. Pittsburg Hilton v. Reiss (1985), 22 Ohio App. 3d 234; Hornyak v. Brooks (1984), 16 Ohio App. 3d 105. Therefore, the trial court did not err in denying the appellant's motion for relief from judgment and the appellant's fourth assignment of error is not well taken. Judgment affirmed. -11- 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. JOHN F. CORRIGAN, J. and JAMES D. SWEENEY, J. CONCUR. DAVID T. MATIA PRESIDING 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. .