COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66998 CHARLES WAINEY : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : HOLLYMATIC CORPORATION : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: APRIL 27, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-242136. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Dale S. Economus, Esq. James C. Watson, Esq. 10360 Northfield Road Northfield, OH 44067 For Defendant-Appellee: Lori L. Siwik, Esq. Thomas M. Parker, Esq. Roetzel & Andress 75 East Market Street Akron, OH 44308 Michael J. Charysh, Esq. Charysh & Schroeder, Ltd. 68 East Wacker Place Suite 750 Chicago, IL 60601 -2- DAVID T. MATIA, J.: Charles Wainey, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas in which the trial court overruled plaintiff-appellant's motion to vacate judgment and motion to issue notice of judgment. Plaintiff-appellant assigns two errors for this court's review. Plaintiff-appellant's appeal is not well taken. I. THE FACTS On June 22, 1989 Charles Wainey, plaintiff-appellant, was allegedly injured at work while operating a meat-patty-making machine. The machine allegedly cycled unexpectedly amputating portions of plaintiff-appellant's right index and right middle fingers. Plaintiff-appellant initially filed suit against Holly Sales, the seller of the alleged defective machine. Eventually, plaintiff-appellant amended the complaint by naming Hollymatic Corporation, defendant-appellant ("Hollymatic Corporation"), as a defendant in the action. On July 6, 1992, after reaching a settlement with Holly Sales, plaintiff-appellant voluntarily dismissed the complaint without prejudice pursuant to Civ.R. 41(A). Plaintiff-appellant then refiled the action against Hollymatic Corporation on November 9, 1992. On March 15, 1993, Hollymatic Corporation filed a motion to dismiss plaintiff-appellant's complaint. The trial court granted -3- Hollymatic Corporation's motion to dismiss on June 7, 1993. The trial court's entry stated: Defendant, Hollymatic Corporation's motion to dismiss plaintiff's complaint, filed 3-15- 93, granted. Final. VOL. 1631 Pg. 5 Notice Issued. This final judgment was journalized, published in the Daily Legal News and mailed to counsel. On January 20, 1994 plaintiff-appellant filed a motion to issue notice of judgment of dismissal. Plaintiff-appellant argued that he did not receive notice of the trial court's dismissal of June 7, 1993. Plaintiff-appellant argued further that he did not learn of the dismissal until he checked the trial court's docket on January 13, 1994. Hollymatic Corporation opposed plaintiff-appellant's motion offering evidence that the Cuyahoga County Clerk of Courts satisfied the notice requirements of Civ.R. 58(B) by issuing notice to plaintiff-appellant through counsel. On February 2, 1994, the trial court denied plaintiff- appellant's motion to issue notice of judgment of dismissal. On February 23, 1994 plaintiff-appellant filed a motion to vacate judgment. The trial court denied plaintiff-appellant's motion to vacate on March 3, 1994. Plaintiff-appellant filed a timely notice of appeal of the judgment of the trial court on March 10, 1994. II. ASSIGNMENTS OF ERROR Plaintiff-appellant's first assignment of error states: -4- THE TRIAL COURT ERRED BY OVERRULING PLAINTIFF'S MOTION TO VACATE JUDGMENT PURSUANT TO CIVIL RULE 60(B). Plaintiff-appellant's second assignment of error states: THE DECISION OF THE TRIAL COURT TO OVERRULE PLAINTIFF'S MOTION TO ISSUE NOTICE OF JUDGMENT WAS ERROR. Having a common basis in both law and fact, this court shall consider plaintiff-appellant's first and second assignments of error concurrently. A. THE ISSUE RAISED: NOTICE OF JUDGMENT Plaintiff-appellant argues that the trial court erred in overruling the motion to issue notice of judgment and the motion to vacate judgment. It is plaintiff-appellant's position that he did not receive notice of the trial court's June 7, 1993 dismissal of the case and was therefore prevented from filing a timely notice of appeal from that dismissal. Plaintiff-appellant argues further that the trial court applied the incorrect statute of limitations to the underlying action. Plaintiff-appellant's first and second assignments of error are not well taken. B. STANDARD OF REVIEW FOR NOTICE Ohio Civ.R. 58(B) requires the clerk of courts, within three days of the entry of any final judgment or order, to serve notice of the entry upon all parties, not in default, in any manner provided for in Civ.R. 5, which includes service by ordinary mail. If notice is not served by the clerk within the three day time period provided in Civ.R. 58, App.R. 4(A) affords the party -5- thirty days from the date of service in which to file the notice of appeal. Rule 58 further requires the clerk to make a notation in the appearance docket indicating that notice to the parties has been issued. Once the clerk has served the parties notice of the entry and entered the appropriate notation in the appearance docket, notice is deemed served, and the time for filing the notice of appeal begins to run. Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80; Defini v. Broadview Heights (1991), 76 Ohio App.3d 209; ABC Accounting Sers., Inc. v. Pitman (Oct. 28, 1993), Cuyahoga App. No. 63895, unreported. C. STANDARD OF REVIEW FOR RELIEF FROM JUDGMENT Civ.R. 60(B) governs motions for relief from judgment and provides in part: 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; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; *** (5) any other reason justifying relief from judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. The Ohio Supreme Court has summarized the requirements necessary to warrant relief from judgment pursuant to Civ.R. 60(B) as follows: -6- 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 was 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 syllabus at paragraph two. The failure by a moving party to establish any one of these three (3) elements warrants denial of the motion for relief from judgment. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App.2d 285. In addition, a motion for relief from judgment pursuant to Civ.R. 60(B) may not be used as a substitute for a timely appeal. Doe v. Trumbull County Children Services Board (1986), 28 Ohio St.3d 128; National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 63; McCann v. City of Lakewood (May 12, 1994), Cuyahoga App. Nos. 64073, 64508, 64631, unreported. The determination as to whether to grant a Civ.R. 60(B) motion for relief from judgment is within the sound discretion of the trial court and will not be reversed upon appeal absent an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75. In this instance, the trial court's ruling on plaintiff-appellant's motion for relief from judgment will not be disturbed unless it is clear that the decision was unreasonable, arbitrary or -7- unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As stated by the Ohio Supreme Court in Blakemore: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. D. THE TRIAL COURT DID NOT ERR In this case, a review of the trial court's docket demonstrates that the Cuyahoga County Clerk of Courts satisfied the requirements of Civ.R. 58(B). The postcard notice of the trial court's dismissal was sent via ordinary U.S. mail on June 14, 1993, within three days of the June 11, 1993 entry. The clerk also noted in the case docket that service was made. In cases where the civil rules on service are followed, there is a rebuttable presumption of proper service. Grant v. Ivy (1980), 69 Ohio App.2d 40. The burden is on the parties to follow the progress of their own case. Maynard v. Maynard (February 11, 1982), Cuyahoga App. No. 43642, unreported. A party's failure to be aware of a properly journalized and published judgment does not justify vacation of that judgment pursuant to Civ.R. 60(B). Bosco v. Euclid (1974), 38 Ohio App.2d 40; Bazin v. Mayfield (August 24, -8- 1989), Cuyahoga App. No. 55696, unreported. This is particularly true in this case where plaintiff-appellant merely alleged that he did not receive notice of the judgment. Plaintiff-appellant did not offer any evidence to show that service was not properly made. Accordingly, plaintiff-appellant is not entitled to what would amount to a second issuance of notice of judgment so that he could now appeal the trial court's judgment. Plaintiff-appellant's first and second assignments of error are not well taken. Judgment of the trial court is affirmed. -9- 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. SPELLACY, P.J. CONCURS; HARPER, J., DISSENTS (WITH DISSENTING OPINION). DAVID T. MATIA 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66998 CHARLES WAINEY : : Plaintiff-appellant : : -vs- : DISSENTING : : OPINION HOLLYMATIC CORPORATION : : Defendant-appellee : : DATE: APRIL 27, 1995 SARA J. HARPER, J., DISSENTING: I respectfully dissent from the majority's conclusion that appellant is not entitled to relief under Civ.R. 60(B). Civ.R. 60(B) necessitates a "just result," and the facts of this case support its application to achieve a "just result." .