COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70863 AND 71049 PATTI SULL WOOMER : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION RONALD R. KITTA : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 17, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-290141 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Laura J. Gentilcore, Esq. David G. Phillips, Esq. 1360 SOM Center Road 1030 Euclid Avenue Suite 410 Cleveland, Ohio 44124-2189 Cleveland, Ohio 44115 Ronald R. Kitta 10210 Fox Hollow Ravenna, Ohio 44130 -2- ROCCO, J.: Appellant appeals the decision of the trial court granting summary judgment for appellee, denying appellant's motion to amend her complaint, and denying appellant's motion for relief from judgment. As the trial judge did not abuse his discretion when denying appellant's motion to amend the complaint, appellant's complaint was barred pursuant to the relevant statute of limitations, and appellant failed to submit evidence sufficient to indicate why the alleged fraud could not have been discovered within the time allotted by statute, and appellant failed to put forth sufficient grounds to warrant granting her motion for relief from judgment, we affirm. Decedent Jennie M. Kitta (hereinafter decedent) was the mother of appellant Patti Sull Woomer (hereinafter appellant), and was married to appellee Ronald R. Kitta (hereinafter appellee). Decedent and appellee together owned a piece of property located at 10210 Fox Hollow Drive, Parma Ohio (hereinafter the property). The deed transferring the property to appellee and decedent, executed June 15, 1984, designated the ownership of the property as "for their joint lives, remainder to the survivor of them". Decedent's will, executed August 3, 1984, described her ownership interest in the property as "tenants in common, with my husband, Ronald R. Kitta". Appellant filed an action on May 26, 1995, alleging appellee altered the deed in November 1984, and seeking a declaratory judgment to claim her interest in the property. On October 12, 1995, the trial court conducted a case management conference, -3- establishing a discovery cut-off date of January 2, 1996, and also setting a final pre-trial for April 2, 1996, and a trial date of June 6, 1996. The court subsequently granted an extension of the discovery cut-off to February 2, 1996. On December 29, 1995, appellant filed a motion to amend the complaint, with a copy of the proposed complaint attached; the trial court granted appellant leave to amend her complaint on February 26, 1996. Both the original and the amended complaints alleged that appellee's wrongful conduct occurred in November 1984. Appellant filed her motion for summary judgment on February 2, 1996, on the grounds that she has demonstrated, as a matter of law, that appellee committed fraud. On February 7, 1996, appellee filed his motion for summary judgment on the grounds that appellant failed to bring the complaint within the four year statute of limitations provided by R.C. 2305.09(C). On March 13, 1996, appellant filed a second motion for leave to amend the complaint to add language alleging appellant "fail[ed] to discover the Defendant's fraudulent actions until the winter of 1994". On May 22, 1996, the trial court issued a Memorandum of Opinion and Order (hereinafter the Opinion). The trial court held that Plaintiff's motion to amend the complaint was untimely and failed to set forth a factual basis for the amendment. The court reasoned that, "[w]ith the discovery period closed and with an imminent trial date, [appellee] is prejudiced by the inability to counter [appellant's] allegation that the fraud came to light in the winter of 1994." Thus, the court denied appellant's second motion to amend the complaint, denied -4- appellant's motion for summary judgment and granted appellee's motion for summary judgment. Appellant subsequently filed a motion pursuant to Civ.R. 60(B) and Civ.R. 60(A), seeking relief on the grounds the trial court failed to consider all of the evidence that had been submitted to them. Appellant also timely filed a Notice of Appeal of the May 22, 1996 order. On July 1, 1996, the trial court issued the following order: Plaintiff's Motion (filed 6/12/96) for Relief from Judgment is OVERRULED. The Court finds that its decision on the motion for summary judgment was rendered after full consideration of all the evidence. Therefore, Plaintiff has failed to demonstrate any basis under Civil Rule 60(B) for vacating the ruling granting summary judgment in favor of Defendant. Appellant timely filed a Notice of Appeal of the above order denying appellant's request for relief from judgment. This court subsequently consolidated the two appeals for consideration. ASSIGNMENTS OF ERROR Appellant alleges six assignments of error. This court will address appellant's third assignment first. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING PLAINTIFF/APPELLANT'S MOTION FOR LEAVE TO AMEND HER COMPLAINT, AS THE AMENDMENT WAS TO CONFORM WITH EVIDENCE OF RECORD AND WAS WITHOUT PREJUDICE TO DEFENDANT/APPELLEE. Appellant filed her complaint on May 26, 1995, alleging that appellee's wrongful acts that occurred in 1984 constitute fraud. Appellant maintains the trial court erred by denying her second motion to amend the complaint filed on March 13, 1996. Civ.R. 15(A) provides that "[l]eave of court shall be freely given when justice so requires." On appeal, the reviewing court -5- is to determine whether the trial judge's decision constitutes an abuse of discretion, not whether it was the same decision the reviewing court might have made. Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, citing State, ex rel. Wargo v. Price (1978), 56 Ohio St.2d 65, 10 O.O. 3d 116, 381 N.E.2d 943. Additionally, the court noted: Not only is our role limited to review, but the review itself has narrow limits: "*** We have repeatedly held that '[t]he 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.'" Huffman v. Hair Surgeon, Inc. (1985) 19 Ohio St.3d 83, 87, 19 OBR 123, 482 N.E.2d 1248, 1252. Wilmington Steel Products, Inc. v. Cleve, Elec. Illum. Co., supra at 122. Furthermore, it is an abuse of discretion to deny a motion to amend a complaint that is timely filed, where the amendment would make it possible for the plaintiff to state a claim upon which relief may be granted and no reason otherwise justifying denial of the motion is disclosed. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, syllabus paragraph 6. In the case, sub judice, however, the trial judge directly addressed additional reasons justifying the denial of the motion. The court noted that discovery had already been completed, and that the trial date was "imminent". The court also believed that appellee would suffer prejudice by his inability to respond to appellant's claim that the alleged fraud was not discovered until 1994. Likewise, appellant failed to seek leave to amend her complaint to add the date the alleged fraud was discovered until -6- over thirty days after appellee had filed his motion for summary judgment which sought relief on the grounds that the complaint was time barred. The record reveals sufficient evidence to support the trial judge's decision. The trial judge did not abuse his discretion by denying appellant's second motion for leave to amend the complaint. Appellant's third assignment of error is overruled. I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT/APPELLEE RONALD R. KITTA, IN THAT, IT FAILED TO CONSIDER THE DEPOSITION TRANSCRIPT, INCLUSIVE OF EXHIBITS, OF DEFENDANT/APPELLEE RONALD R. KITTA, DULY FILED BY THE PLAINTIFF/APPELLANT AND REFERENCED IN SUPPORT OF PLAINTIFF/APPELLANT'S BRIEF IN OPPOSITION TO DEFENDANT/APPELLEE'S MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT/APPELLEE RONALD R. KITTA, IN THAT, THERE EXISTS A GENUINE ISSUE OF MATERIAL FACT FOR SUBMISSION TO A JURY WHEN ALL THE EVIDENCE IS VIEWED IN A LIGHT FAVORABLE TO THE PLAINTIFF/APPELLANT. Appellant's first and second assignments of error will be considered together, as they allege that the trial court erred when it granted appellee's motion for summary judgment. Appellant asserts that the trial court failed to consider the deposition transcript of Ronald R. Kitta and the exhibits attached to the deposition, and also failed to view the evidence in a light most favorable to appellant. "A court reviewing the grant of summary judgment must follow the standard set forth in Civ.R. 56(C)". Craggett v. Adell Ins. Agency (1993), 92 Ohio App.3d 443, 450. Civ.R. 56(C) provides that summary judgment is properly entered when the admissible -7- evidence as enumerated in the rule shows that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, citing Celotex v. Catrett (1986), 477 U.S. 317. In a motion for summary judgment, the moving party must point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmovant has no evidence to support its claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. If the moving party fails to satisfy this initial burden, the motion must be denied. Id. Once the moving party satisfies this initial burden, however, the nonmovant must then set forth specific facts to show a genuine issue remains for determination at trial. Id. Appellant initially argues that the trial court failed to consider all of the evidence before it when making its decision on the summary judgment motions. The opinion issued by the trial court does note that "a copy of the will has not been provided" (Opinion p. 2); and also that "the only documents available for the court's review are attached to defendant's brief." (Opinion p. 2). The record reveals that the will was one of several exhibits to the deposition of Ronald R. Kitta, which was filed along with appellant's motion for summary judgment. Thus, it appears that the trial court may have been mistaken regarding some of the evidence submitted by appellant. -8- However, there is no support for appellant's allegations that the trial court ignored the deposition transcript of appellee and its attached exhibits. The Opinion acknowledges that Jennie M. Kitta described the property in her Last Will and Testament as property owned with her husband as "tenants in common", and that appellee's deposition revealed that he "conceded that he executed a Will containing substantially the same provision." (Opinion p. 1). In addition, appellee's motion for summary judgment also references appellee's deposition. Thus, even if the trial court believed appellant failed to submit the deposition, the record indicates the evidence was still considered by the trial court. Furthermore, this court applies the same standard of review as that applied by the trial court and reviews the evidence independently. Thus, all evidence in the record was considered on appeal. Any error by the trial court in this regard is therefore harmless error. Appellee moved for summary judgment in the trial court on the grounds that appellant's action is time barred. R.C. 2305.09(C) provides for a four year statute of limitations in an action seeking relief on the ground of fraud. Appellee maintains summary judgment is proper, as the face of the complaint fails to aver a date within four years when the alleged fraud was discovered. The pleading itself must contain an averment that the fraud was not discovered until within the four years of bringing the action. Peterson v. Teodosio, supra at 174. The Peterson court determined that judgment on the pleadings was proper where the complaint on its face was statutorily barred. -9- Id. Thus, the complaint itself is defective, and would be entitled to a grant of judgment on the pleadings. However, in appellant's opposition to appellee's motion for summary judgment, appellant contends she did not discover the alleged fraud until the winter of 1994. Thus, even though the face of the complaint fails to state a date within the statute of limitations when appellant discovered the alleged fraud, this court will consider appellant's argument and evidence that the discovery did not occur until the winter of 1994. This court has held that: [n]o more than a reasonable opportunity to discover the misrepresentation is required to start the period of limitations. Information sufficient to alert a reasonable person to the possibility of wrongdoing gives rise to a party's duty to inquire into the matter with due diligence. Craggett v. Adell Ins. Agency, supra at 454; citing Investors REIT One v. Jacobs (1989), 46 Ohio St.3d 176, 546 N.E.2d 206; Venham v. Astrolite Alloys (1991), 73 Ohio App.3d 90, 596 N.E.2d 585, motion to certify overruled (1991), 62 Ohio St.3d 1422, 577 N.E.2d 1105. Furthermore, [o]nce sufficient indicia of misrepresentation are shown, a party cannot rely on its unawareness or the efforts of the opposition to lull it into a false sense of security to toll the period of limitations. Craggett v. Adell Ins. Agency, supra at 454. Appellee allegedly altered the deed in November 1984, and the deed was then publicly filed. Decedent died in December 1990. Appellant received property that had been left to her by decedent under the will, and she signed a receipt acknowledging this on February 19, 1991. In addition, appellee filed an -10- Affidavit of Survivorship on February 21, 1991, which acknowledged that he was now sole owner of the property. In all this time, there was no action taken to probate the house. Appellant never sought to ascertain how the house was titled nor whether she would eventually be entitled to a portion of the property. Appellant should have been on notice by February 21, 1991, at the latest, that she should inquire into the ownership of the property. Appellant argues that she failed to discover the alleged fraud due to the misrepresentations of appellee, and submits her own affidavit in support. However, she states only that: I understood from the will and from statements made by Defendant, Ronald R. Kitta, that Defendant Ronald Kitta would be residing on the real property in issue until such time as he sold it, and that I and my brothers would not receive any monies until that time. (Emphasis added). (Affidavit of Patti Sull Woomer). However, appellant does not submit any specific statements on which she relied, nor any time frame within which these alleged statements were made. Appellant has failed to submit evidence sufficient to support her claim that she could not have discovered the alleged fraud until the winter of 1994. There is also no evidence in the record that indicates appellee either initially made, or ever altered the deed. The deed was a pre-printed form, the transfer from "Fragapane Co., Inc." to "Ronald R. Kitta and Jennie M. Kitta, Husband and Wife" was typed onto the form. Also typed onto the form was the following language: "for their joint lives, remainder to the -11- survivor of them". Appellee testified that neither he nor decedent requested this language. Additionally, the June 4, 1984 bill from the attorney who prepared the deed, notes it was for "Preparation of Warranty Deed from a Corporation with Estate by the Entireties language added". Appellee does not recall having any contact with the attorney who prepared the deed. There is no evidence to suggest that appellee ever obtained the deed and had the opportunity to insert any language before the deed was filed. There is also no evidence in appellee's deposition testimony that indicates appellee ever misrepresented the contents of the deed to either appellant or to the decedent. Furthermore, the discrepancy between the language in the wills and the deed fails to indicate any intent to defraud appellant. The deed does not distinguish between husband and wife, but provides that the surviving spouse would receive title to the property. Reviewing the evidence independently and most strongly in favor of the non-movant, summary judgment was properly granted for appellee. Appellant's first and second assignments of error are overruled. IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING PLAINTIFF/APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT BROUGHT ON THE GROUND THAT THE TRIAL COURT FAILED TO CONSIDER ALL OF THE EVIDENCE BEFORE IT. V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENY-ING PLAINTIFF/APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT BROUGHT ON THE GROUNDS THAT THE TRIAL COURT ERRED IN DENYING HER LEAVE TO AMEND HER COMPLAINT WHERE THE AMENDMENT SOUGHT WAS BASED -12- ON EVIDENCE OF RECORD AND WAS NOT PREJUDICIAL TO DEFENDANT/APPELLEE. Appellant's fourth and fifth assignments of error maintain that the trial court erred by denying appellant's motion for relief from judgment. Appellant moved for relief from judgment pursuant to Civ.R. 60(B)(5) and Civ.R. 60(A), alleging that the trial court failed to properly consider all of the evidence before it when ruling on the summary judgment motions, and also that the trial court erred in failing to allow appellant to amend her complaint to add the date she allegedly discovered the fraud. To be successful on a motion brought pursuant to Civ.R. 60(B), the movant must demonstrate: 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 enumerated in Civ.R. 60(B)(1) through (5), and 3) the motion is made within a reasonable time, and where the grounds for relief are 60(B)(1), (2), or (3), not more than one years after the judgment, order or proceeding was entered. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St.2d 146, 150; citing Universal Film Exchanges v. Lust (C.A. 4, 1973), 479 F.2d 573; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 316 N.E.2d 469; Brenner v. Shore (1973), 34 Ohio App.2d 209, 297 N.E.2d 550. The court further noted its agreement with Judge Sobeloff in Universal Film Exchanges v. Lust, finding that the requirements are independent and in the conjunctive, not the disjunctive. GTE Automatic Electric, Inc. v. ARC Industries, supra. The trial court has discretion in deciding whether to grant relief from -13- judgment, and its determination will be reversed only upon a showing that it abused its discretion. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20-21. The trial court denied appellant's motion for relief from judgment, noting that it considered all of the evidence before it. This court must presume the regularity of the proceedings in the court below. There is no evidence to indicate the trial court did not consider all of the relevant evidence. Also, as previously discussed, the trial court did not abuse its discretion by denying appellant's motion to amend the complaint. Appellant failed to demonstrate sufficient grounds to warrant granting her motion for relief pursuant to Civ.R. 60(B). Further, Civ.R.60(A) authorizes the correction of clerical mistakes only. Substantive changes in judgments, orders or decrees are not within its purview. See Kuehn v. Kuehn (1988), 55 Ohio App.3d 245, 247, citing Musca v. Chagrin Falls (1981), 3 Ohio App.3d 192, 3 OBR 219, 444 N.E.2d 475, paragraph one of the syllabus. There is no evidence to indicate the trial court made a "clerical mistake" to which Civ. R. 60(A) would apply. The trial court did not abuse its discretion by denying appellant's motion for relief from judgment. VI. ~THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING PLAINTIFF/APPELLANT'S MOTION FOR SUMMARY JUDGMENT, IN THAT, PLAINTIFF/APPELLANT PRESENTED EVIDENCE AS TO EACH ELEMENT NECESSARY TO SUSTAIN A CAUSE OF ACTION IN FRAUD, WHICH EVIDENCE WAS NOT PUT INTO GENUINE DISPUTE BY THAT OF DEFENDANT/APPELLEE. Given this court's disposition of appellant's first five assignments of error, appellant's sixth assignment of error, that -14- the trial court erred in failing to grant her motion for summary judgment, is moot. Appellant's six assignments of error are overruled. The judgment of the trial court is affirmed. -15- It is ordered that appellee recover of appellant his 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. JAMES D. SWEENEY, C. J., AND *AUGUST PRYATEL, J. CONCUR JUDGE KENNETH A. ROCCO *(Sitting by assignment: Judge August Pryatel, retired, of the 8th District Court of Appeals). N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .