COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66971 CECILIO CARABALLO : : Plaintiff-appellant : : JOURNAL ENTRY : v. : AND : : OPINION EARL WRIGHT : : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION: MARCH 2, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-256140 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: EDWARD S. WADE, JR., ESQ. 75 Public Square, Suite 1210 Cleveland, OH 44113 For defendant-appellee: ALAN GREENBERG, ESQ. 1313 Rockefeller Bldg. 614 Superior Avenue Cleveland, OH 44113 - 2 - SWEENEY, JAMES D., J.: Plaintiff-appellant Cecilio Caraballo ("Caraballo") appeals from the denial of his motion for relief from judgment made pursuant to Civ.R. 60(B). For the reasons adduced below, we affirm. A review of the record on appeal indicates that Caraballo and his wife, Victoria Caraballo, were sellers of real and personal property on Scranton Avenue in Cleveland, Ohio. It was alleged in the complaint that defendant-appellee Earl Wright ("Wright") had agreed to purchase that property from Caraballo, but refused to complete the purchase when it was discovered that the liquor license could not be transferred to the buyer and continued to operate the bar. As a result of the refusal to purchase the property, Caraballo filed suit on August 3, 1993, generally seeking performance of the alleged purchase agreement and injunctive relief to prevent Wright from selling liquor at the bar. On November 3, 1993, with leave of court, Wright filed his answer to the complaint raising various affirmative defenses. Also on November 3, 1993, Wright filed his motion for summary judgment, arguing that Wright had returned possession of the property to Caraballo, thereby negating injunctive relief, and that the purchase agreement was contingent upon the transfer of the liquor license, thereby failing to state a claim upon which relief can be granted. On December 14, 1993, the trial court granted Caraballo leave to respond to the motion for summary judgment until December - 3 - 30, 1993. On January 10, 1994, the court granted the unopposed motion for summary judgment without opinion. On January 20, 1994, Caraballo filed a two page motion to vacate and set aside the summary judgment. This post-judgment motion contained no exhibits or affidavits, and provided in pertinent part as follows as the reasons in support of the post- judgment motion: 1. On the date of December 9, 1993, Plaintiff's counsel, Edward S. Wade, Jr., was allowed to review only and not so provided a copy of Defendant's Motion For Summary Judgment. 2. On the above referenced date, a Status Call was scheduled and did take place concerning the matter of resolving this case. At that time it was agreed to by both parties' counsel that Plaintiff would attempt to retrieve information pertinent to the resolution of this case. 3. Subsequently, on December 9, 1993, the case was set for pre-trial on February 8, 1994. It was further agreed to by both parties' counsel that, pending retrieval of Plaintiffs' required information an Answer to Defendant's Motion For Summary Judgment would be filed, pending proper service of said Motion. 4. Having neither received a copy prior to said hearing in accord with Rule 6(D) of the Ohio Rules of Civil Procedure, at the instance of the Status Call Hearing referenced herein, or at any reasonable time thereafter no proper service of Defendant's Motion For Summary Judgment was made to Plaintiffs. Based on the foregoing, no Answer was filed to Defendant's Motion. WHEREFORE, Plaintiffs pray this Honorable Court grant this request for reconsideration and to vacate Defendant's Motion For Summary Judgment. - 4 - On February 7, 1994, without an oral hearing, the trial court denied the motion to vacate the judgment. Caraballo filed a notice of appeal on March 4, 1994, from this denial of relief from 1 judgment. Two assignments of error are presented for review. These assignments will be addressed jointly. I THE TRIAL COURT ERRED IN DENYING PLAINTIFF- APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT MADE PURSUANT TO CIV.R. 60(B). II THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING PLAINTIFF-APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT WITHOUT AFFORDING PLAINTIFF-APPELLANT A HEARING TO DETERMINE THE VALIDITY OF THE CLAIM. The following was recently stated in Acme Music & Vending, Inc. v. Buccaneer Lanes, Inc. (September 30, 1994), Trumbull App. No. 93-T-5001, unreported, with regard to motions for relief from judgment: To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate (1) that the party has a meritorious defense or claim to present if relief is granted, (2) that the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) that the motion is made within a reasonable time. GTE Automatic Elec. v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113. The motion is addressed to the sound discretion of the trial court, and a ruling on a motion will not be disturbed on appeal absent a showing of an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio 1 Wright has failed to file an appellate brief. Further, oral appellate argument has been waived. - 5 - St.3d 75, 77, 514 N.E.2d 1122. An abuse of discretion connotes more than an error of judgment, but rather, indicates an attitude on the part of the court that is unreasonable, unconscionable or arbitrary. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, 573 N.E.2d 622. In order to merit a hearing and prevail, a motion under Civ.R. 60(B) must comply with the requirements for all motions as set forth under Civ.R. 7(B); it must be accompanied by a memorandum of facts and law, and evidentiary materials containing operative facts which would warrant relief under the rule must be attached. Angel v. Angel (Feb. 18, 1993), Scioto App. No. 92CA2071, unreported, at 5; Sykes Constr. Co., Inc. v. Maple Wood Care Inc. (May 3, 1991), Portage App. No. 90-P-2218, unreported, at 3; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 316 N.E.2d 469; 2 Klein, Browne and Murtaugh, Baldwin's Ohio Civil Practice (1988), 106-107, T 53.05 (A) and (B). The quality of operative facts which must be demonstrated by the movant with which to warrant relief was defined in East Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216, 394 N.E.2d 348, syllabus, as follows: The allegation of operative facts required in order to prevail upon a motion for relief from judgment pursuant to Civ.R. 60(B) must be of such evidentiary quality as affidavits, depositions, answers to interrogatories, written admissions, written stipulations, or other sworn testimony. Unsworn allegations of operative facts contained in a motion for relief from judgment filed under Civ.R. 60(B) or in a brief attached to the motion are not sufficient evidence upon which to grant a motion to vacate judgment. In the present case, Caraballo's motion failed to contain an allegation of operative facts which would demonstrate the first element of GTE Automatic, namely, that he had a meritorious - 6 - claim/defense to present if relief was granted. Having failed to comply with an element of GTE Automatic, the trial court did not abuse its discretion in denying the motion without first conducting an evidentiary hearing. Assignments overruled. 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 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. Exceptions. SPELLACY, J. PATTON, C.J., CONCUR. JAMES D. SWEENEY 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. .