COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67691 INVESTOR'S COMPUTER SERVICES : CO., INC. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION THE RESERVES NETWORK, INC., : ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: MAY 4, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-252953 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ANTHONY A. GEDOS (#0017254) 726 Statler Tower 1127 Euclid Avenue Cleveland, OH 44115 For Defendants-Appellees: IRENE M. MacDOUGALL (#0020995) Rosenzweig, Schulz & Gillombardo Co., L.P.A. 700 Euclid Ninth Tower 2000 East Ninth Street Cleveland, OH 44115-1301 - 2 - 2 SPELLACY, P.J.: Investor's Computer Services Co., Inc. ("ICS") appeals from the entry of summary judgment on its claims against The Reserves Network, Inc. ("TRN") and Kathleen Liotta and a judgment for TRN on TRN's counterclaim. ICS raises three assignments of error: I. THE TRIAL COURT IMPROPERLY GRANTED APPELLEE (SIC) SUMMARY JUDGMENT BECAUSE THE RELEVANT MATERIALS SET FORTH GENUINE ISSUES OF MATERIAL FACT. II. THE TRIAL COURT IMPROPERLY GRANTED APPELLEES' (SIC) MOTION TO VACATE JUDGMENT FOR EXCUSABLE NEGLECT. III. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING APPELLEES (SIC) JUDGMENT ON ITS COUNTERCLAIM. I. A. ICS brought a contract and fraud action after discharging Dawn Burdyshaw, an administrative assistant it hired with the assistance of TRN, an employment agency. ICS alleged that Burdyshaw was unqualified and that TRN and Liotta, a TRN employee, misrepresented Burdyshaw's qualifications. TRN and Liotta moved for summary judgment on ICS's claims, which the trial court granted, and counterclaimed for TRN's fee. On the date set for the trial of TRN's and Liotta's counter- claim, TRN and Liotta failed to appear and the trial court entered judgment for ICS. Several days later, TRN moved for relief from judgment under Civ.R. 60(B)(1) based on the clerk of courts' failure to notify it of the trial date. The trial court granted - 3 - 3 this motion. After a bench trial, the trial court awarded TRN $2,675. B. Evidentiary material submitted pursuant to Civ.R. 56 reveals the following: Under an oral agreement to provide candidates TRN thought might possess the skills required for an administrative assistant position with ICS, Liotta sent ICS resumes belonging to Burdyshaw and two other individuals. ICS interviewed and eventually hired Burdyshaw. Roylene Sample, president of ICS, averred that Liotta falsely represented Burdyshaw possessed the skills required for the position. Sample further averred that Liotta should have known Burdyshaw lacked these skills because Liotta had once worked with Burdyshaw. C. TRN and Liotta received only one of two postcard notices of the trial court's journal entry granting their motion for summary judgment and setting a trial date for their counterclaim. The postcard notice received by TRN and Liotta states: MOTION FOR SUMMARY JUDGMENT FILED BY DEFTS. RESERVES AND LIOTTA IS GRANTED AS THE MATERIAL FACTS WHICH ARE NOT IN DISPUTE DEMONSTRATE THAT AS A MATTER OF LAW THESE DEFTS. ARE ENTITLED TO JUDGMENT IN THEIR FAVOR UPON COUNTS OF PLTF'S COMPLAINT. WHEN THE DISPUTED FACTS ARE ADDED TO THE ANALYSIS, IS CLEAR THAT THEY ARE NOT MATERIAL GIVEN THE UNDISPUTED CHARACTERISTICS OF THE PARTIES' CONTRAC (SIC). - 4 - 4 II. In its first assignment of error, ICS contends the trial court erred in entering summary judgment. We review a ruling on a motion for summary judgment indepen- dently and without deference to the trial court's determination. Oiler v. Willke (1994), 95 Ohio App.3d 404, 407. Under Civ.R. 56, summary judgment is appropriate when: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against who the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment for TRN and Liotta was proper on ICS's contract claim. Even construing the evidence most strongly for ICS, reasonable minds could only conclude that TRN did not guarantee the skill level of the candidates they provided. Summary judgment for TRN and Liotta was also proper on ICS's fraud claim. Fraud requires that the representation be "made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred ***." Burr v. Stark Cty. Bd. of Commrs. (1986), 23, Ohio St.3d 69, paragraph two of the syllabus. Even construing the evidence most strongly for ICS, reasonable minds could only conclude that TRN and Liotta neither knew nor should - 5 - 5 have known that Burdyshaw lacked the skills required for the position. Accordingly, ICS's first assignment of error is not well taken. III. In its second assignment of error, ICS contends the trial court erred in granting TRN's motion for relief from judgment. We review a ruling on a motion for relief from judgment for abuse of discretion. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. A trial court abuses its discretion when, in addition to making an error of law or judgment, it acts with an attitude that is unreasonable, arbitrary, or unconscionable. State ex rel. Hillyer v. Tuscarawas Cty. Bd. of Commrs. (1994), 70 Ohio St.3d 94, 97. 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), 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. Civ.R. 60(B)(1) provides four grounds for relief: mistake, inadvertence, surprise, and excusable neglect. ICS argues that none of these grounds are present here because TRN should have realized that the postcard notice it received did not contain the - 6 - 6 trial court's entire journal entry. We disagree and find no abuse of discretion. Accordingly, ICS's second assignment of error is not well taken. IV. In its third assignment of error, ICS contends the trial court "abused its discretion" in finding for TRN on TRN's counterclaim. ICS argues that the entry of summary judgment on its contract and fraud claims precluded it from presenting a defense to TRN's counterclaim. We have already found entry of summary judgment proper. Accordingly, ICS's third assignment of error is not well taken. Judgment affirmed. - 7 - 7 It is ordered that appellees recover of appellant their 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. DONALD C. NUGENT, J. and ANN DYKE, J., CONCUR. LEO M. SPELLACY PRESIDING 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 .