COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68195 OWEN C. NEFF, EXECUTOR : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION JOAN M. LITZOW, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : JANUARY 18, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 260619 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Owen C. Neff, Esq. Clifford C. Masch, Esq. Snyder, Neff & Chamberlin Reminger & Reminger, Co., 1648 Hanna Building L.P.A. 142 Euclid Avenue The 113 St. Clair Building Cleveland, Ohio 44115 Cleveland, Ohio 44114 -2- HARPER, J.: Owen C. Neff, plaintiff-appellant, executor of the estate of Peter J. Gerber ("appellant"), appeals from the judgment of the Cuyahoga County Court of Common Pleas which denied appellant's motion to vacate judgment dismissing appellant's action with prejudice and to stay proceedings. A careful review of the record compels affirmance. I. The procedural background of this case is as follows: On July 30, 1993, the Cuyahoga County Court of Common Pleas entered a declaratory judgment in Probate Court Case No. 1062812 awarding the funds in a number of "joint and survivorship accounts to defendant- appellee, Ruby Gerber, widow of decedent, Peter S. Gerber." Appellant appealed the final order of the trial court as the executor of the estate of Peter S. Gerber. On November 8, 1993, appellant initiated Executor of the Estate of Peter J. Gerber, Deceased v. Joan M. Litzow, et al., in Cuyahoga County Court of Common Pleas Case No. 260619, which is the underlying subject of this appeal. In the within action, appellant's complaint accused Joan Litzow et. al., defendants-appellees ("appellee") of "unlawful use of judgment entry," of the probate court's declaratory judgment; (2) conversion of the funds wrongfully removed from the custody and control of the executor; (3) fraud, malice, and bad faith in (a) procuring from the probate court a judgment defendant knew to be contrary to law and (b) using that judgment unlawfully to obtain -3- possession and control of the funds in the disputed bank accounts before the time permitted the plaintiff to perfect an appeal in the action. Appellant sought compensatory damages and punitive damages. Subsequent to appellant's complaint being filed, appellant filed a motion to dismiss the action with prejudice. The trial court issued an entry granting appellant's motion, and dismissing the action with prejudice at appellant's cost. Next, appellant filed a motion to vacate judgment dismissing the action and to stay proceedings on the motion. The trial judge denied appellant's motion to vacate judgment and to stay proceedings on the motion. Appellant timely appeals. II. Appellant presents the following assignments of error: I. The trial court erred in denying plaintiff's timely motion to vacate the judgment entry dismissing the action with prejudice without permitting the plaintiff to file his brief and present his evidence that the plaintiff's dismissal of the action had been induced by the fraud of the defendants. II. The trial court abused its discretion by unreasonably refusing to stay proceedings on plaintiff's motion to vacate until after a related action in mandamus and prohibition has [sic] been finally determined. III. In appellant's first assignment of error, appellant submits the trial court's decision to deny his motion to vacate the judgment entry dismissing the action with prejudice should be -4- reversed. Appellant charges the trial court denied him the opportunity to submit briefs and present evidence to the trial court pertinent to the allegations in his complaint. Appellee, on the other hand, contends appellant's assignment of error lacks merit and the trial court's decision to deny appellant's motion to vacate judgment should be affirmed, as appellant's motion to vacate judgment was not supported by the proper evidentiary material. Relief from judgment is governed by Civ.R. 60(B), which provides in pertinent part as follows: (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 has been based has been reversed or otherwise vacated, or it is no longer equitable that the judgement should have prospective application; or (5) any other reasons 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 judgment, order or proceeding was entered or taken. *** 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 (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1),(2) or (3), -5- not more than one year after the judgment order or proceeding was entered or taken. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. A movant must set forth operative facts by way of affidavit or other evidentiary material, sufficient upon which to grant a vacation of judgment. Bancroft v. Communicators, Inc. (1986), 34 Ohio App.3d 165; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97. Relief from judgment pursuant to Civ.R. 60(B) is granted at the sole discretion of the trial court. Griffey v. Rajan (1987), 33 Ohio St.3d 75. With respect to appellant's first assignment of error, in light of the record before this court, the trial court did not abuse its discretion when it denied appellant's motion to vacate the judgment entry dismissing the action with prejudice. In the case sub judice, appellant's motion to vacate judgment pursuant to Civ.R. 60(B) lacked the requisite evidentiary material. Appellant failed to file an affidavit or other evidentiary material. Thus appellant failed to meet the legal standards set forth by Bancroft, and Adomeit, supra, for obtaining relief from judgment. Therefore, the trial court did not abuse its discretion when it denied appellant's motion to vacate judgment. Accordingly, appellant's assignment of error is overruled. Turning to appellant's second assignment of error, appellant attacks the trial court's ruling to deny his motion to stay proceedings. Appellant contends the trial court abused its discretion by refusing to grant appellant's motion to stay -6- proceedings until a related action in mandamus and prohibition was determined. Appellee submits appellant's assignment of error should be overruled, because appellant's motion to stay proceedings was not filed with the proper material. Civ.R. 62(A) provides that a trial court may stay the execution of any judgment or stay proceedings to enforce judgment pending the disposition of a motion for relief from judgment in the court's own discretion. The granting or denial of a party's request for a stay of proceedings on a motion to vacate is within the sound discretion of the trial court. Krupp v. Poor (1970), 24 Ohio St.2d 123, paragraph two of the syllabus. An abuse of discretion means more than an error of law or judgment, it implies the court's attitude is unreasonable, arbitrary or unconscionable. Shimola v. Cleveland (1992), 89 Ohio App.3d 505. The burden is on the party alleging the trial court abused its discretion to prove these allegations. Shaffer v. Farmington (1992), 82 Ohio App.3d 579. In the case sub judice, appellant's assertion that the trial court abused its discretion when it denied appellant's motion to stay proceedings is not well taken. We direct appellant's attention to Loc.R. 11 of the Court of Common Pleas of Cuyahoga County, General Division ("Loc.R. 11"), which governs hearings and submission of motions. In pertinent part, Loc.R. 11 states: (A) Motions, in general, shall be submitted and determined upon the motion papers. Oral arguments of -7- motions may be permitted on application or proper showing. (B) The moving party shall serve and file with the motion a brief written statement of reasons in support of the motion and a list of citations of the authorities. If the motion requires consideration of facts not appearing of record, the movant shall serve and file copies of all affidavits, depositions, photographs or documentary evidence which the movant desires to submit in support of the motion. *** Loc.R. 11(A), (B). The trial court did not abuse its discretion when it denied appellant's motion to stay proceedings. First, the trial court did not abuse its discretion when it rejected appellant's position that he should be granted a stay of proceedings until pending litigation was determined. The pending litigation to which appellant refers 1 in his brief had no bearing on the issues in the case sub judice. Second, appellant's motion to stay proceedings lacked the requisite citation to authorities pursuant to Loc.R. 11. Accordingly, the trial court did not abuse its discretion when it denied appellant's motion for a stay of proceedings. Appellant's second assignment of error is overruled. 1 Appellant, as relator, on June 13, 1994, filed a petition for a writ of mandamus and prohibition, alleging a scheme of corruption and fraud. This court denied appellant relator's petition. See State, ex rel. Neff v. Corrigan (January 30, 1995), Cuyahoga App. No. 67421, unreported. This court subsequently denied appellant relator's motion for post-judgment relief. Appellant relator, filed a notice of appeal to the Ohio Supreme Court on March 15, 1995; the Ohio Supreme Court granted certification of the record. See, Supreme Court No. 95-553. -8- Judgment 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 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. LEO M. SPELLACY, P.J., AND JAMES D. SWEENEY, J., CONCUR JUDGE SARA J. HARPER 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 .