COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60870 ZASHIN, RICH, SUTULA & : MONASTRA CO., L.P.A. : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION FLORENCE Z. POLLACK : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 156,847 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: Melvin H. Banchek Co., L.P.A. 55 Public Square, Suite 918 Cleveland, Ohio 44113 For defendant-appellee: Kenneth D. Petrey, Esq. 1228 Euclid Avenue, #900 Cleveland, Ohio 44115 - 2 - NAHRA, J.: Plaintiff-appellant Zashin, Rich, Sutula & Monastra Co., L.P.A. appeals the trial court's ruling on its motion for reconsideration/motion for relief from judgment. Appellants requested, but were denied, attorney fees pursuant to Civ. R. 11 and R.C. 2323.51 against the attorney for defendant-appellee Florence Pollack. Appellant filed suit against Florence Pollack for attorney fees due and owing under a contract of representation. Appellee answered, and filed a counterclaim alleging that appellants breached the contract by failing to exercise ordinary and due care in performance of their legal services. Later the attorney for appellee withdrew and appellant filed a motion for summary judgment on the counterclaim, which the court granted without opposition. Appellant then filed a motion for attorney fees as against appellee's former counsel under Civ. R. 11 and O.R.C. 2323.51. In the motion, appellant alleged that the counterclaim was filed merely to harass or maliciously injure appellant; and further, that the counterclaim was not warranted under existing law and could not be supported by a good faith argument for an extension, modification or reversal of existing law. No affidavits or other evidence were attached to the motion. Thereafter, the issues presented in appellant's complaint were settled. The motion for attorney fees stemming from the filing of the counterclaim was dismissed as to Ms. Pollack, but specifically preserved as to her former counsel. - 3 - Six months later, on June 27, 1990, the court overruled appellants' motion for attorney fees under R.C. 2323.51. The court stated that it lacked jurisdiction as the statute allows an award of fees only within twenty-one days after entry of judgment or prior to trial. No ruling was made at this time on the request for fees pursuant to Civ. R. 11. A motion for a hearing was filed by the appellant on the Civ. R. 11 fees on August 8, 1990, as was a motion for reconsideration/relief from judgment. The motion was premised on Civ. R. 60(B)(1), and requested the court grant the motion "due to a mistake on the Court's behalf." Appellant asserted the court overruled the motion for fees under R.C. 2323.51(B)(1) "due to the fact that the Plaintiff had not filed its Motion within 21 days after entry of judgment or prior to trial." The appellant contended that its motion for relief should be granted because the motion was filed within the statutory time period. The appellant did not explicitly request a ruling on the Civ. R. 11 fees, but did mention that they had been requested in the motion for attorney fees. The affidavit of appellant's counsel was attached to the motion for reconsideration/relief from judgment. The affidavit restated the court's summary judgment ruling, gave the filing date and time of the motion for attorney fees; and stated that the motion for fees was filed within twenty-one days of the court's ruling. Copies of the court's summary judgment ruling and its ruling denying attorney fees were also attached. - 4 - On October 19, 1990, the court issued its memorandum of opinion and order which granted appellant's motion for reconsideration, but affirmed its decision overruling the request for fees under R.C. 2323.51. The court held "Although the plaintiff filed its motion before the final judgment, the Court did not address the motion until more than 21 days had passed after the final judgment was rendered. Therefore, the Court lacked jurisdiction to award fees." The court went on to overrule the request for Civ. R. 11 fees stating "that the record evidence, including the deposition of Kenneth Petrey, fails to support a finding that the counterclaim in this action was filed in bad faith." Lastly, the court held that appellant's motion for fees failed to meet the requirements of Civ. R. 7(B)(1) and Local R. 11(B). Appellant sets forth the following two assignments of error: I THE COURT ERRED WHEN IT RULED THAT IT LACKED JURISDICTION TO AWARD FEES PURSUANT TO 2323.51 O.R.C. BECAUSE THE COURT DID NOT ADDRESS THE APPELLANT'S MOTION FOR ATTORNEY'S FEES UNTIL MORE THAN 21 DAYS HAD PASSED AFTER THE FINAL JUDGMENT WAS RENDERED. II THE TRIAL COURT ERRED WHEN IT RULED THAT THE APPELLANT'S ORIGINAL MOTION FOR ATTORNEY'S FEES PURSUANT TO RULE 11 OF THE OHIO RULES OF CIVIL PROCEDURE AND SECTION 2323.51 O.R.C. WHICH INCLUDED THE RULE 11 CLAIM WAS DEFECTIVE UNDER OHIO RULES OF CIVIL PROCEDURE - 5 - RULE 7(B)(1) AND CUYAHOGA COUNTY RULES OF THE COURT OF COMMON PLEAS RULE 11(B). Although not referenced in the assignments of error, the appellant seeks reversal of the trial court's ruling on its motion for Civ. R. 60(B)(1) relief. We limit our review to whether or not the trial court erred in granting the Civ. R. 60(B)(1) motion, but denying the requested relief. In GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St. 2d 146, the Supreme Court summarized the requirements for relief under Civ. R. 60(B) at syllabus 2: 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. These requirements are independent, and in the conjunctive, or in other words, each prong must be satisfied for relief to be granted. See GTE, supra; Svoboda v. Brunswick (1983), 6 Ohio St. 3d 348; Argo Plastic Products Co. v. Cleveland (1984), 15 Ohio St. 3d 389. We find that appellant did not meet the second prong of the GTE test. Appellant filed his motion under Civ. R. 60(B)(1), which states: (B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; - 6 - etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect: . . . The motion stated relief should be granted "due to a mistake on the Court's behalf." However, Civ. R. 60(B) is not available as a substitute for filing an appeal. See Dahl v. Kelling (1986), 34 Ohio App. 3d 258; Bosco v. Euclid (1974), 38 Ohio App. 2d 40; Brick Processors Inc. v. Cubertson (1981), 2 Ohio App. 3 478. We note that appellant alleges the trial court erred in denying its motion for want of a timely filed request for fees. The judge's order makes clear the judge overruled the request for fees based on jurisdictional grounds. If any judicial error in reasoning was committed, it was the sort normally remedied by a direct appeal. Dahl, supra. For these reasons, the trial court committed reversible error in granting the motion for reconsideration/relief from judgment filed by the appellants. However, this error was harmless as the judge in his order denied the relief requested. The appellant's assignments of error are overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant her 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. DAVID T. MATIA, C.J., and JOHN F. CORRIGAN, J., CONCUR. JOSEPH J. NAHRA 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. .