COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61143 PETER DEDULA : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION LAND TITLE AGENCY, INC. : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 12, 1992 CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court No. 90 CVI 06891 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: PETER DEDULA, Pro Se 11816 Glamer Drive Parma, Ohio 44130 For Defendant-Appellant: HAROLD POLLOCK 1707 Terminal Tower Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Defendant-appellant Land Title Agency, Inc. ("Land Title") appeals from a judgment of the Cleveland Municipal Court denying its Civ. R. 60(B) motion for relief from a judgment in favor of plaintiff-appellee Peter Dedula for $750 in attorney fees. Plaintiff has filed no appellee's brief. Plaintiff Dedula filed a complaint against defendant Land Title in the municipal court March 8, 1990 pursuant to a land title insurance policy. The complaint alleged that Land Title failed to discover a $6,000 lien for unpaid utility bills on the property covered by the land title policy purchased by plaintiff and that plaintiff incurred $750 in attorney fees to obtain payment of the utility bills by the seller. The case proceeded to a hearing before a referee on April 12, 1990. The record demonstrates the referee continued the hearing to May 17, 1990 to allow the parties to present additional evidence. Plaintiff duly presented an affidavit from his attorney concerning the attorney fees and defendant failed to appear at the continued hearing. The referee subsequently recommended judgment for plaintiff in a five-page report dated June 15, 1990, sent to the parties by regular mail on June 20, 1990, and journalized June 26, 1990. The trial court adopted the recommendations of the referee in an order journalized June 26, 1990. - 3 - Defendant filed neither objections to the referee's report pursuant to Civ. R. 53(E)(7) within the fourteen day time period nor a timely appeal within thirty days from the trial court's judgment adopting the recommendations of the referee. Instead, defendant subsequently filed a Civ. R. 60(B) motion for relief from judgment with an accompanying motion to stay execution of judgment approximately three months thereafter on October 2, 1990. The trial court granted defendant's motion to stay execution of the judgment and scheduled a hearing on defendant's Civ. R. 60(B) motion in an entry journalized October 17, 1990. After conducting the hearing, the referee recommended that defendant's Civ. R. 60(B) motion be denied in a two-page report dated November 7, 1990, sent to the parties by regular mail the following day and journalized November 16, 1990. The trial court adopted the referee's recommendations and denied defendant's Civ. R. 60(B) motion for relief from judgment in an order journalized November 16, 1990. Defendant subsequently filed timely objections to the referee's report November 19, 1990 without an accompanying transcript of the hearing conducted by the referee. The trial court thereafter overruled defendant's objections and terminated the automatic stay of its prior ruling denying defendant's Civ. R. 60(B) motion in an entry journalized December 6, 1990. Defendant timely appeals from the denial of its Civ. R. 60(B) motion raising the following sole assignment of error: - 4 - THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION TO VACATE JUDGMENT WHERE THE MOTION SATISFIED ALL OF THE ELEMENTS OF RULE 60(B) OF THE OHIO RULES OF CIVIL PROCEDURE. Defendant's sole assignment of error lacks merit. Defendant contends the trial court improperly denied his Civ. R. 60(B) motion for relief from judgment. The requirements governing motions for relief from judgments have been summarized by the Ohio Supreme Court as follows: 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 judgment, order or proceeding was entered and taken. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph 2 of syllabus. All three prongs of the GTE test must be met by movant. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17. As noted above, the record demonstrates that a referee conducted a hearing on defendant's Civ. R. 60(B) motion. However, defendant failed to provide this Court of Appeals with a transcript or statement of the evidence presented at the hearing in the trial court. As a result, we must presume regularity of the proceedings and validity of the judgment of the trial court denying defendant's Civ. R. 60(B) motion and affirm. See - 5 - Banschenbach v. Feola (Mar. 12, 1987), Cuyahoga App. No. 51888, unreported; Volvo of America Corp. Recreational Products Div. v. Sindelar (May 15, 1986), Cuyahoga App. No. 50381, unreported; Skinner v. Turner (Feb. 10, 1983), Cuyahoga App. No. 45020, unreported. The Skinner Court explained the necessity for a transcript to exemplify error in this context as follows: *** [W]here a trial court exercises its dis- cretion and grants a hearing on the [Civ. R. 60(B)] motion, any appeal taken from the court's action thereon is not decided upon the material submitted with the motion but upon whether the evidence introduced at the hearing satisfies the three requirements of GTE. Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App. 2d 223, 228-29. The three requirements for obtaining relief from judgment under Civ. R. 60(B) create factual questions. Therefore to demonstrate error in the trial court's disposition of such a motion after an evidentiary hearing, an appellant must supply the reviewing court with either a verbatim or narrative transcript of the evidence presented at the hearing. Once the trial court grants a hearing, the parties should be on guard to protect themselves for a subsequent appeal by securing a transcript of the evidence presented during the proceeding. See App. R. 9(B) and 9(C). Id. at 229. Id. at 3 (Emphasis added). Since defendant failed to file a transcript or statement of the evidence presented at the hearing in the trial court on its Civ. R. 60(B) motion, the only evidence in the record of the hearing is the report of the referee which states in pertinent part as follows: - 6 - As Defendant has failed to show that he is entitled to relief under one of the grounds specified, Defendant's motion must be denied. Any other result would be an abuse of discretion. * * * A motion to vacate pursuant to Civil Rule 60(B) may not be granted where the effect would be to allow an otherwise untimely appeal. Such is the present case. Defendant admits that the motion is directed to the merits. Id. at 2, 1. Defendant has failed to exemplify any error in the denial of its belated Civ. R. 60(B) motion by specific references to a transcript or statement of the evidence presented at the hearing on its motion. Moreover, as in Wolenski v. Smith (Sep. 13, 1990), Cuyahoga App. No. 57500, unreported, the trial court in the case sub judice found defendant's Civ. R. 60(B) motion was nothing more than an attempt to circumvent the requirements for filing timely objections to a referee's report recommending the award of attorney fees under Civ. R. 53(E)(7) and an improper substitute for direct appeal on the merits. Id. at 5. It is well-established that Civ. R. 60(B) motions are not an appropriate substitute for filing a timely direct appeal from the underlying judgment. Wojenski v. Smith, supra. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellee(s) recover of appellant(s) 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 Cleveland Municipal 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, P.J., and BLACKMON, J., CONCUR JUDGE BLANCHE KRUPANSKY 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. .