COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60616 DICTAPHONE CORPORATION : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : CITY OF EAST CLEVELAND : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CP-167573 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JACK CURTIS WILLIAM T. HOHMANN THOMAS L. BRUNN, JR. HOHMANN, BOUKIS & BOUKIS CO., L.P.A. 1000 STANDARD BUILDING CLEVELAND, OHIO 44113 For Defendant-Appellant: JAMES H. HEWITT, III LAW DIRECTOR BY: RUFUS SIMS ASSISTANT DIRECTOR OF LAW CITY OF EAST CLEVELAND 14340 EUCLID AVENUE EAST CLEVELAND, OHIO 44112 -2- SPELLACY, J.: Defendant-appellant City of East Cleveland ("East Cleveland") appeals from the trial court's decision denying its motion to vacate the trial court's order finding that East Cleveland and its legal counsel, Rufus Sims, engaged in frivolous conduct. On April 6, 1989, plaintiff-appellee Dictaphone Corporation ("Dictaphone") filed a complaint against East Cleveland alleging breach of contract. East Cleveland did not respond within the requisite time period and, on May 18, 1989, Dictaphone filed an application for default judgment under Civ. R. 55. On July 26, 1989, East Cleveland filed a motion for leave to file an answer. On August 1, 1989, the trial court entered default judgment in favor of Dictaphone. On August 14, 1989, appellant filed a motion for relief from judgment under Civ. R. 60(B), which the trial court denied on August 31, 1989. On September 19, 1989, East Cleveland filed a motion to stay 1 execution of judgment under Civ. R. 62(B) and (C), in which it 1 Civ. R. 62 provides, in pertinent part, that: (B) Stay upon appeal. When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce a judgment by giving an adequate supersedeas bond. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court. (C) Stay in favor of the government. When an appeal is taken by this state or political subdivision, or administrative agency of -3- stated that a notice of appeal had been filed. The trial court denied appellant's motion to stay execution of judgment on October 10, 1989, noting that a notice of appeal had not been filed. East Cleveland responded by filing, on November 1, 1989, a motion for reconsideration of its motion to stay execution of judgment. In its brief in support, East Cleveland, admitting that a notice of appeal had not been filed, requested the trial court to rule on its motion for relief from judgment prior to allowing execution of judgment. On February 21, 1990, Dictaphone filed a motion for an order finding frivolous conduct under R.C. 2323.51 and Civ. R. 11. On February 28, 1990, the trial court held a hearing to consider Dictaphone's motion. On March 5, 1990, the trial court found that East Cleveland and Sims had engaged in frivolous conduct prohibited by R.C. 2323.51 and Civ. R. 11. The trial court then awarded Dictaphone $1,145 in attorney fees against East Cleveland and Sims, individually and jointly. On July 25, 1990, East Cleveland filed a motion to vacate and a motion to stay execution of judgment under Civ. R. 62(A). On September 6, 1990, the trial court denied both motions. either, or by any officer thereof acting in his representative capacity and the operation or enforcement of the judgment is stayed, no bond, obligation or other security shall be required from the appellant. -4- East Cleveland appeals and raises the following assignment of error: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED EAST CLEVELAND DUE PROCESS AS MAN- DATED BY R.C. 2323 (2) (a) AND (b) WHEN THE COURT SUA SPONTE WITHOUT NOTICE TO EAST CLEVELAND AND WITHOUT SUPPORT IN THE RECORD ENTERS A JUDGMENT AGAINST EAST CLEVELAND AND EAST CLEVELAND'S LEGAL COUNSEL, AND THERE- AFTER, THE COURT DENIES EAST CLEVELAND'S MOTIONS TO VACATE JUDGMENT AND STAY OF EXECUTION. East Cleveland's motion to vacate makes no mention of Civ. R. 60. Other than a motion to vacate a void judgment, Civ. R. 60 is the sole means by which a trial court may vacate its own judgment. See Dairyland Ins. Co. v. Fogus (1989), 58 Ohio App. 3d 78, 79; McCue v. Insurance Co. (1979), 61 Ohio App. 2d 101, 105. East Cleveland does not argue that the trial court's judgment is void. Civ. R. 60(A) addresses "clerical mistakes" while Civ. R. 60(B) addresses "mistakes; inadvertence; excusable neglect, newly discovered evidence; fraud; etc." We find, therefore, that East Cleveland's motion, although improperly titled, was a motion for relief from judgment made under Civ. R. 60(B). In GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St. 2d 146, paragraph two of the syllabus, the court held that: 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), -5- (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. In order to satisfy this test, a movant must satisfy each of the three requirements. Id. at 151. "A motion for relief from judgment under Civ. R. 60(B) is addressed to the sound discretion of the trial court, and that court's ruling will not be disturbed on appeal absent a showing of abuse of discretion." Griffey v. Rajan (1987), 33 Ohio St. 3d 75, 77. "The standard for 'abuse of discretion' is readily defined as more than error of law or judgment, but implies an attitude on the part of the trial court that is unreasonable, arbitrary or unconscionable." Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St. 3d 59, 61. After a review of the record, we conclude that the trial court did not abuse its discretion when it found that East Cleveland failed to demonstrate that it had a "meritorious defense" to present if relief were granted. 2 Under R.C. 2323.51, frivolous conduct consists of: *** conduct of a party to a civil action or of his counsel of record that satisfies either of the following: (a) it obviously serves merely to harass or maliciously injure another party to the civil action. 2 We do not address Civ. R. 11, which applies to attorneys, because the trial court found East Cleveland and Sims liable individually and jointly. In addition, Sims is not a party to this appeal. -6- (b) It is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law. East Cleveland argues, as its meritorious defense, that it was reasonable for it to file its "motions for reconsideration and relief from judgment" because the trial court ruled on Dictaphone's motion for default judgment without granting East Cleveland's motion for leave to file its answer. The frivolous conduct, however, occurred when East Cleveland filed a motion for stay of execution under Civ. R. 62(B) and (C), stating that a notice of appeal had been filed when it had not. The frivolous conduct continued when East Cleveland filed a motion for reconsideration of its motion for stay of execution of judgment in which it requested a ruling on its motion for relief from judgment. East Cleveland's motion for reconsideration was frivolous because its motion to stay execution of judgment was based on the filing of a notice of appeal, which had not been filed. Further, the trial court had ruled on the motion for relief from judgment on August 31, 1989, two months prior to East Cleveland's filing of the motion for reconsideration. Finally, a motion for reconsideration is a nullity. Pitts v. Dept. of Transportation (1981), 67 Ohio St. 2d 378, 381. Accordingly, East Cleveland's assignment of error is not well taken. Judgment affirmed. -7- It is ordered that appellee recover of appellant its 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. FRANCIS E. SWEENEY, J., AND BLACKMON, J., CONCUR LEO M. SPELLACY 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. .