COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68052 FLORENCE HILL, ET AL. : : Plaintiffs-appellees : : JOURNAL ENTRY -vs- : AND : OPINION LORETTA FERGUSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 27, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 275345 JUDGMENT : Reversed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLEES: FOR DEFENDANT-APPELLANT: Charles R. Seitz, Esq. Bradley A. Wright, Esq. Misny & Associates Co., Breaden M. Douthett, Esq. L.P.A. Roetzel & Andress 805 Terminal Tower 76 East Market Street 50 Public Square Akron, Ohio 44308 Cleveland, Ohio 44113 -2- HARPER, J.: Florence Hill, plaintiff-appellee (hereinafter "Florence Hill"), initiated this civil action when she filed a complaint for personal injuries on August 15, 1994. Florence Hill's complaint avers that on April 30, 1994, Loretta Ferguson, defendant-appellant (hereinafter "Loretta Ferguson"), negligently caused a collision with Florence Hill's vehicle. According to Ms. Hill's counsel, counsel for Ms. Ferguson and Ms. Hill reached a settlement agreement concerning the litigation, on August 30 1994. However, counsel for Ms. Ferguson disputes Ms. Hill's version of the facts. On August 31, 1994, Florence Hill's attorney filed a Notice of Dismissal Entry, which dismissed the above mentioned complaint "with prejudice." Shortly thereafter, Florence Hill's counsel filed a Motion for Relief from Judgment. On September 19, 1994, Loretta Ferguson filed her Brief in Opposition to Plaintiff's Motion for Relief from Judgment. The trial court granted Plaintiff's Motion for Relief from Judgment and ordered the case reinstated to the docket. Hill v. Ferguson, (Sept. 21, 1994), Cuy. Cty. C.P. No. 275345, unreported. Defendant timely filed her Notice of Appeal on October 19, 1994. Appellant assigns the following assignment of error: THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT IN GRANTING PLAINTIFF'S UNSUPPORTED MOTION FOR RELIEF FROM JUDGMENT, WHICH WAS PREDICATED ENTIRELY UPON THE MISTAKE OF PLAINTIFF'S COUNSEL. -3- I. The sole issue in this appeal is whether the trial court abused its discretion when it granted a motion for relief from judgment when appellee failed to provide sufficient evidence to support the motion. Initially, we note that an action voluntarily dismissed with prejudice, pursuant to Civ.R. 41(A), is an adjudication upon the merits, and a final judgment within the meaning of Civ.R. 60(B). Andy Estates Dev. Corp. v. Bridall (1991), 68 Ohio App.3d 455. Relief from judgment is governed by Civ.R. 60(B), which provides: (B) 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; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. *** The standard for granting a motion for relief from judgment was set forth by the Ohio Supreme Court in GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus, as follows: To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious claim or defense 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 -4- (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. It is firmly established that the trial court has discretion in determining whether to grant a Civ.R. 60(B) motion for relief from judgment. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 250. Thus, a trial court's decision regarding a Civ.R. 60(B) motion will not be reversed on appeal absent a showing of abuse of discretion. The term "abuse of discretion" implies that the trial court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. If one of the three factors is not present, a trial court has abused its discretion if the motion for relief from judgment has been granted and the court of appeals may reverse. GTE, supra. The "movant bears the burden of proving his allegations in support of his motion." East Ohio Gas Co v. Walker (1978), 59 Ohio App.2d 216, 222. The three factors of GTE "must be demonstrated by operative facts presented in material accompanying the motion." GTE, supra. To prevail, the allegation of operative facts must be of such evidentiary quality as affidavits, depositions, answers to interrogatories, written admissions, written stipulations, or other unsworn testimony. East Ohio Gas, supra at 216. The movant must establish all three elements to prevail on this motion. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. Turning to the facts of the instant appeal, Ms. Hill contends that she has adequately demonstrated the GTE requirements and is -5- thus entitled to relief from judgment. The third prong of the GTE test has been met; Ms. Hill's motion for relief from judgment was timely. Turning to the second prong of the GTE test, we do not believe that Ms. Hill has demonstrated entitlement to relief under Rule 60(B)(1). "Mistake, inadvertence, surprise or excusable neglect, as set forth by Civ.R. 60(B)(1), by counsel does not entitle that party to relief from judgment under the rule." Argo Plastic Products Co. v. City of Cleveland (1984), 15 Ohio St.3d 389. With respect to the first prong of the GTE test, we believe the motion lacked a meritorious defense or claim, as set forth by Civ.R. 60(B)(1). Moreover, we find that counsel's motion for relief from judgment did not contain evidentiary materials demonstrating grounds for the motion. Unsworn allegations of operative facts contained in a motion for relief from judgment or in the brief attached to the motion are not sufficient evidence upon which to grant the motion. East Ohio Gas, supra at 216. Accordingly, we conclude that the trial court abused its discretion when it granted Ms. Hill's motion for relief from judgment when Ms. Hill failed to meet the requirements of Civ.R. 60(B). GTE, supra. We reverse the judgment of the trial court and reinstate the judgment entry of August 31, 1994. -6- It is ordered that appellant recover of appellees 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 Cuyahoga County 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. DAVID T. MATIA, J., *AUGUST PRYATEL, J., CONCUR PRESIDING JUDGE SARA J. HARPER *Judge August Pryatel, retired from the Eithth District Court of Appeals, sitting by assignment. 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 .