COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61308 JOHN ZAUBI, ADMIN. : ACCELERATED DOCKET : Plaintiffs-appellees : : JOURNAL ENTRY -vs- : AND : OPINION CLARO V. CALUYA, JR., M.D. : : Defendant-appellee : PER CURIAM : : [Appeal by: Lakshmaiah Pola, M.D. : Defendant-appellant] : DATE OF ANNOUNCEMENT : OF DECISION : OCTOBER 10, 1991 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 169,244 JUDGMENT : REVERSED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant, LAKSHMAIAH POLA, M.D.: STEPHEN MCGOWAN, ESQ. NICHOLAS D. SATULLO, ESQ. 2200 Illuminating Bldg. REMINGER & REMINGER 55 Public Square The 113 St. Clair Building Cleveland, Ohio 44113 Cleveland, Ohio 44114-1311 - 2 - PER CURIAM: Defendant Lakshmaiah Pola, M.D., appeals from the order of the trial court which vacated its prior award of summary judgment to defendant and co-defendant Claro V. Caluya, M.D., in plaintiff's medical malpractice action. We reverse. I. Plaintiff filed a medical malpractice action against defendants in 1986. He voluntarily dismissed that action without prejudice and subsequently refiled it on May 8, 1989. On November 14, 1989, defendant moved for summary judgment, claiming that the first action had been dismissed on April 28, 1988, and was therefore not timely refiled pursuant to R.C. 2305.19. Plaintiff did not oppose defendant's motion for summary judgment, and the trial court granted it on January 24, 1990. Thereafter, on December 13, 1990, plaintiff moved for relief from judgment pursuant to Civ. R. 60(B)(3) and 60(B)(5), asserting that defendant had misrepresented the date on which the first action was dismissed, and that the action was timely refiled pursuant to R.C. 2305.19 and Civ. R. 6. The trial court granted plaintiff's motion and defendant now appeals. II. "THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT. "A.THE GRANTING OF THE MOTION FOR RELIEF FROM JUDGMENT WAS A FINAL APPEALABLE ORDER WHICH HAD TO BE CHALLENGED BY WAY OF DIRECT APPEAL." - 3 - The law in Ohio is clear that an order which vacates a judgment pursuant to Civ. R. 60(B) is a final appealable order and an appeal therefrom must be taken within thirty days. See Bourque v. Bourque (1986), 34 Ohio App. 3d 284, 286. The first proposition advanced in support of defendant's assignment of error is meritorious. "B.PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT WAS SIMPLY AN ATTEMPT TO CIRCUMVENT APP. R. 4(a) WHICH ESTABLISHES AN APPEAL PERIOD OF 30 DAYS." It is well-settled that a motion for relief from judgment is not available as a substitute for an appeal. State, ex rel. Elyria, v. Trubey (1983), 24 Ohio St. 3d 44, 48. Thus, it may not be used to challenge the correctness of the trial court's original decision on the merits. Id. Further, a claim that the trial court has misapplied the savings statute to the facts of a particular case asserts judicial error of the sort normally remedied by direct appeal. Cf. Dahl v. Kelling (1986), 34 Ohio App. 3d 258, 259. Here, plaintiff challenges the correctness of the trial court's award of summary judgment to defendant and asserts that the savings statute was misapplied. Thus, the second proposition is meritorious. "C.THE PLAINTIFF HAS FAILED TO ALLEGE OPERATIVE FACTS, SUPPORTED BY EVIDENTIARY MATERIAL, WHICH ENTITLED HIM TO PREVAIL UNDER CIV. R. 60(b)." - 4 - Generally speaking, in order to prevail on a motion for relief from judgment pursuant to Civ. R. 60(B), the movant must demonstrate that: (1) there is a ground for relief pursuant to Civ. R. 60(B)(1)-(5); (2) the motion is made within the time period specified in Civ. R. 60(B); and (3) there is a meritorious defense or claim to assert if the motion is granted. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St. 2d 146, paragraph two of thee syllabus. Where the motion involves a misrepresentation made by an adverse party, it is properly brought pursuant to Civ. R. 60(B)(3). See Staff Notes to Civ. R. 60(B); Coulson v. Coulson (1983), 5 Ohio St. 3d 12, 15. Thus, the motion must be brought within a reasonable time, and not more than one year after judgment is entered. Hartford v. Hartford (1977), 53 Ohio App. 2d 79, 82. Where the motion involves a misrepresentation made by an officer of the court, e.g., an attorney, which misrepresentation perpetrates a fraud upon the court, the motion is properly brought pursuant to Civ. R. 60(B)(5). Coulson v. Coulson, supra. While such motions are not subject to the one year limitation of Civ. R. 60(B)(3), they must nonetheless be made within a reasonable time. Hartford v. Hartford, supra. Moreover, the "misrepresentations to the court do not constitute a fraud on the court unless the adverse party was prevented from presenting a defense." Id., at 85. - 5 - In this case, there was no suggestion of a misrepresentation by an adverse party. Therefore Civ. R. 60(B)(3) is inapplicable. In addition, although plaintiff claimed that defendant's counsel misrepresented the date on which plaintiff had previously dismissed the action, this misrepresentation, if it occurred, clearly did not prevent plaintiff from defending against defendant's motion for summary judgment by informing the court of the true date. Thus Civ. R. 60(B)(5) is likewise inapplicable. Further, because plaintiff did not oppose defendant's motion for summary judgment, did not move to vacate the judgment until almost eleven months after judgment had been entered, and did not demonstrate that the motion to vacate was made within a reasonable time, the motion was not timely. See Pittsburgh Press Co. v. Cabinetpak Kitchens of Columbus (1984), 16 Ohio App. 3d 167, 168: "If we were to hold that a party who neglects to respond to a motion for summary judgment is entitled to relief when he files a Civ. R. 60(B) motion, supported by affidavits which should have been filed in opposition to the motion for summary judgment, we would be disemboweling the whole summary judgment procedure. No party would be required to file counter-affidavits under Civ. R. 56 if he could later obtain relief under Civ. R. 60(B) from his omission. Indeed, were a party interested in delaying the final outcome of a case, he would invariably resort to such a tactic. "Civ. R. 56 is designed to speed up cases; Civ. R. 60(B), to grant relief where justified." - 6 - The third proposition has merit, and defendant's assignment of error is sustained. Judgment reversed. - 7 - This cause is reversed. It is ordered that appellant recover of appellee 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. JOHN F. CORRIGAN, PRESIDING JUDGE LEO M. SPELLACY, JUDGE PATRICIA A. BLACKMON, JUDGE 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. .