COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69248 LAURA M. ROE : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : CITY OF CLEVELAND : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 8, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-248759. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Laura M. Roe: Anne L. Kilbane, Esq. Standard Building - First Floor 1370 Ontario Avenue Cleveland, OH 44113 William R. Fanos, Esq. Weston, Hurd, Fallon, Paisley & Howley 2500 Terminal Tower Cleveland, OH 44113-2241 John Schloss, Esq. Nurenberg, Plevin, Heller & McCarthy 1370 Ontario Street - First Floor Cleveland, OH 44113-1792 -3- For Felicia Frazier: Murray Richelson, Esq. David A. Katz Co., L.P.A. 842 Terminal Tower Cleveland, OH 44113 For Defendant-Appellant: Michael A. Dolan, Esq. Assistant Director of Law Room 106 - City Hall 601 Lakeside Avenue Cleveland, OH 44114 -4- PER CURIAM: This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the record from the Cuyahoga County Court of Common Pleas, and the briefs and argument of counsel. The City of Cleveland, defendant-appellant, appeals the decision of the trial court granting Laura M. Roe's, plaintiff- appellee's, motion for relief from judgment pursuant to Civ.R. 60(B). Defendant-appellant argues plaintiff-appellant failed to affirmatively demonstrate she possessed a meritorious claim as required by Civ.R. 60(B). For the following reasons, we reverse the decision of the trial court. In the case sub judice, plaintiff-appellee filed a complaint against defendant-appellant claiming the negligent operation of a motor vehicle by defendant-appellant's employee proximately caused her injuries. After being consolidated with a complaint filed by defendant-appellant's employee against plaintiff-appellee, the trial court assigned the case to arbitration. A hearing was held and on December 14, 1994, the arbitrator filed his report and award finding adversely to both party claimants. No appeal was taken from the report pursuant to Loc.R. 29 and the trial court affirmed the report and entered its judgment on January 20, 1995. However, on February 21, 1995, plaintiff- appellee filed both a notice of appeal and a motion for relief from judgment pursuant to Civ.R. 60(B)(5). Plaintiff-appellee argued she had never received a copy of the "Report and Award of Arbitrators" and therefore did not have the opportunity to appeal -5- it. The Civ.R. 60(B) motion contained affidavits attesting to this fact. After this court remanded the case back to the trial court for the limited purpose of ruling on the Civ.R. 60(B) motion, the trial court granted plaintiff-appellee's motion. The issue on appeal from a trial court's granting of a Civ.R. 60(B) motion for relief from judgment is whether the trial court abused its discretionary authority provided by the rule. Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64; Griffey v. Rajan (1987), 33 Ohio St.3d 75. The Ohio Supreme Court in GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus, held: To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (1) the party must have 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 the judgment, order or proceeding was entered or taken. With regards to the first prong of the GTE test, it is well established a movant's burden is only to allege a meritorious claim supported by operative facts, not to prevail on the merits of the claims. Moore, supra, citing Colley v. Bazell (1980),64 Ohio St.2d 243, 247; Volodkevich v. Volodkevich (1988), 35 Ohio St.3d 152. -6- In this appeal the defendant-appellant argues plaintiff- appellee failed to affirmatively demonstrate she possessed a meritorious claim in her motion for relief from judgment as required by Civ.R. 60(B). Moreover, defendant-appellant argues nothing in the record asserts the existence of a meritorious claim. In response, plaintiff-appellee argues the facts alleged in her complaint, if proven, are sufficient evidence for the trial court that a meritorious claim existed. Thus the sole issue in this appeal is whether the facts plaintiff-appellee alleged in the original complaint alone constitute a meritorious defense for purposes of Civ.R. 60(B). We hold that it does not. In Hornyak v. Brooks (1984), 16 Ohio App.3d 105, this court held, among other things, that the original pleading will not suffice for the purpose of supplying evidentiary material to demonstrate the validity of his/her underlying claim. See, also, Adomeit v. Baltimore (1974), 39 Ohio App.2d 97; East Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216; Society Natl. Bank v. Val Halla Athletic Club & Recreation Ctr., Inc. (1989), 63 Ohio App.3d 413; Youssefi v. Youssefi (1991), 81 Ohio App.3d 49. Thus, it is well established that the movant of a Civ.R. 60(B) motion has the burden of putting forward operative facts which would give rise to a meritorious defense and/or claim. By merely relying upon the original pleadings as evidence of its meritorious claim, plaintiff-appellee failed to meet this burden. See, also, Hill v. Ferguson (July 27, 1995), Cuyahoga App. No. -7- 68052, unreported. Accordingly, the trial court abused its discretion in granting plaintiff-appellee's motion for relief from judgment under Civ.R. 60(B). Judgment reversed. -8- This cause is reversed for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee costs herein. It is ordered that a special mandate be sent to said 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, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE JOHN T. PATTON, 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 .