COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71014 TERENCE A. REA, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION PECSOK, REA & DEMARCHI, ET AL., : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION : APRIL 10, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 287361 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Walter F. Ehrnfelt Michael J. Jordan WALDHEGER, COYNE & ASSOCIATES CO., LPA 1991 Crocker Road, Suite 550 Westlake, Ohio 44145 For defendants-appellants: Stephen M. Darlington Paul S. Klug ZIEGLER, METZGER & MILLER 2020 Huntington Building Cleveland, Ohio 44115-1441 -2- NAHRA, P.J.: Appellants, Pecsok, Rea & Demarchi ("PRD") and James A. Demarchi ("Demarchi"), appeal from the trial court's denial of their motion for relief from judgment. For the following reasons, we affirm the trial court's ruling. This case involves a dispute over dissolution of a partnership and the rights of the partners under the controlling partnership agreement. Appellee, Terence A. Rea ("Rea"), is a former partner in the accounting firm of PRD. Rea brought a declaratory judgment action against appellants in order to determine his rights on retirement from PRD under the partnership agreement. On December 22, 1995, the trial court granted summary judgment to appellee on the issue of liability. In its order, the court expressly reserved jurisdiction to determine the amount appellants owed appellee. Specifically, the court's order stated: [P]ursuant to Rule 56 of the Ohio Rules of Civil Procedure, judgment is hereby entered in favor of Plaintiff and against Defendants, jointly and severally, in accordance with the terms more specifically set forth in this Entry. Once the amounts are provided to the Court pursuant to Paragraph 7 [which directed the parties to submit evidence relevant to determining the amount due under the agreement], those amounts shall become incorporated into this Judgment Entry * * *. Although the judgment did not contain Civ.R. 54(B) "no just reason for delay" language, on January 19, 1996, appellants filed their notice of appeal. Four days after the notice of appeal was filed, January 23, 1996, the trial court entered a "supplemental judgment entry" in which it specified the amount of the judgment. -3- This court was never notified that the trial court entered the supplemental entry. Accordingly, on March 29, 1996, we dismissed appellants' appeal for lack of a final appealable order. Thereafter, having obtained new counsel, appellants filed a motion for relief from judgment which requested the trial court to vacate both the judgment entry of December 22, 1995, and the supplemental judgment entry of January 23, 1996. The trial court denied this motion in toto. Appellants timely appealed from this decision and assign two errors for review. I. Appellants' first assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANTS WHEN IT DENIED DEFENDANTS' MOTION TO VACATE THE VOID JUDGMENT ENTRY ENTERED ON JANUARY 23, 1996. Appellants contend that their first notice of appeal divested the trial court of jurisdiction to entertain the issue resolved by its supplemental judgment entry. Thus, appellants conclude that the trial court should have granted their motion and vacated said supplemental judgment entry. The Ohio Supreme Court has consistently indicated that "[w]hen a case has been appealed, the trial court retains all jurisdiction not inconsistent with the reviewing court's jurisdiction to reverse, modify, or affirm the judgment." State ex rel. Neff v. Corrigan (1996), 75 Ohio St.3d 12, 15, 661 N.E.2d 170; Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141, 146, 637 N.E.2d 890; In re Kurtzhalz (1943), 141 Ohio St. 432, 25 O.O. 574, 48 N.E.2d 657. Stated another way, -4- 4 [w]hen only part of a case is appealed, the trial court may proceed to determine the issues remaining in the case within the foregoing limitations. Olen Corp. v. Franklin Cty. Bd. of Elections (1988), 43 Ohio App.3d 189. A trial court's exercise of jurisdiction as to those remaining issues does not interfere with the appellate court's power to review the issues on appeal merely because the decision on appeal may provide a basis for reversing the trial court's determination of those remaining issues. Cincinnati Bengals, Inc. v. Cincinnati (1989), 57 Ohio App.3d 122, 131. Bank One, Columbus, N.A. v. O'Brien (May 14, 1992), Franklin App. No. 91AP-882, unreported. Thus, a trial court retains jurisdiction to rule on a variety of issues despite the pendency of an appeal. See, e.g., Okocha v. Fehrenbacher (1995), 101 Ohio App.3d 309, 324, 655 N.E.2d 744 (trial court may rule on issues of punitive damages, attorney fees and prejudgment interest where those issues not addressed on appeal); Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 596, 641 N.E.2d 265 (trial court may tax costs notwithstanding the pendency of an appeal on other issues); Tessler v. Ayer (May 18, 1994), Hamilton App. Nos. C-930133, C-930134, unreported (trial court retains jurisdiction to appoint receiver despite pending appeal). We find no error in the trial court's denial of appellants' motion to vacate the supplemental judgment entry. The supplemental judgment entry did not either modify or alter the court's earlier judgment. In no way did the court's decision affect our ability to "reverse, modify, or affirm the judgment." Indeed, we lacked jurisdiction to examine the merits of the appeal. Even if we had possessed jurisdiction, our ability to review the merits of the -5- 5 judgment on liability was not compromised by the trial court's determination of damages. Further, this court has stated that a trial court may issue an order after a party has filed a notice of appeal where the order "merely set[s] forth with greater specificity what the trial court's [previous] order had already established, and does not change the amount of the judgment." Charles Fazio & Assoc., Inc. v. Miesen (April 25, 1996), Cuyahoga App. No. 236824, unreported. See, also, Metrohealth Med. Center v. Kaiser Found. Hosp. (July 22, 1993), Cuyahoga App. No. 64828, unreported. In this case, the trial court's supplemental award more fully articulated the judgment by supplying a term that the award expressly intended to incorporate. Any other construction would elevate form over substance. Accordingly, we find that the trial court properly denied appellants' motion for relief from judgment. Appellants argue that entry of the supplemental award was beyond the jurisdiction of the trial court since a notice of appeal had been filed and thus void ab initio under Merkly v. Schneider (June 8, 1995), Cuyahoga App. No. 68334, unreported. The discussion in Merkly to this effect is dicta and the cases above cited clearly indicate that under the circumstances here present the trial court was not divested of jurisdiction to enter the supplemental order. Rather, "the trial court retains all jurisdiction not inconsistent with the reviewing court's jurisdiction to reverse, modify, or affirm the judgment." State ex rel. Neff, supra. -6- 6 Appellants' first assignment of error is overruled. II. Appellants' second assignment of error states. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANTS' MOTION FOR RELIEF FROM JUDGMENT. Appellants assert that the trial court should have granted relief from judgment pursuant to Civ.R. 60(B)(5). As stated by this court in Cerney v. Norfolk & W. Ry. Co. (1995), 104 Ohio App.3d 482, 491, 662 N.E.2d 827: Generally, to prevail on a motion brought under Civ.R. 60(B), it must be demonstrated that: (1) the party has 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), (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. A party invoking Civ.R.60(B) must demonstrate operative facts supporting these three requirements. Weaver v. Colwell Financial Corp. (1992), 73 Ohio App.3d 139, 143, 596 N.E.2d 617. [T]he "* * * operative facts required in order to prevail upon a motion for relief from judgment pursuant to Civ.R. 60(B) must be of such evidentiary quality as affidavits, depositions, answers to interrogatories, written admissions, written stipulations, or other sworn testimony." Thom's, Inc. v. Rezzano (Nov. 10, 1988), Cuyahoga App. Nos. 54541, 54671, 54691, unreported, quoting, East Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216. Further, "[t]he question of whether relief should be granted is left to the sound discretion of the -7- 7 trial court." Weaver, supra, citing, Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122, 1124. Accordingly, our review is conducted under the abuse of discretion standard. McCann v. Lakewood (1994), 95 Ohio App.3d 226, 235, 642 N.E.2d 48, The 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. Cerney, 104 Ohio App.3d at 491. Appellants contend that the trial court should have granted the motion to vacate the judgment of December 22, 1995, which determined the issue of liability, on the grounds that said judgment was contrary to law. On appeal, appellants argue that its motion articulated grounds for relief under Civ.R. 60(B)(5) which provides relief for "any other reason justifying relief from the judgment." As stated by this court in Cerney, supra: Civ.R. 60(B)(5) is a catchall provision * * *. It is to be used only in extraordinary and unusual cases when the interests of justice warrant it. While Civ.R. 60(B)(5) may be used to correct "court errors and omissions", U.A.P.Columbus JV326132 v. Plum (1986), 27 Ohio App.3d 293, 295, 27 OBR 338, 500 N.E.2d 924, it is axiomatic that the rule is not a substitute for an appeal. Trebmal Constr., Inc. v. Cuyahoga Cty. Bd. of Revision (1994), 94 Ohio App.3d 246, 255, 640 N.E.2d 601. Thus, we have indicated that "Civ. R. 60(B)(5) does not contemplate possible error in the legal reasoning underlying a judgment as any `other reason justifying relief from judgment.'" Peckinpaugh v. Peckinpaugh (Oct. 29, 1987), Cuyahoga App. Nos. -8- 8 52933, 52934, unreported; Anderson v. Garrick (Oct. 12, 1995), Cuyahoga App. No. 68244, unreported (Civ.R. 60(B) is not available to address legal errors in court's judgment; rather, rule permits a court to grant relief where factual circumstances have materially changed since judgment). Moreover, a party may not circumvent the appellate process and attack the merits of a judgment under Civ.R. 60(B)(5). Ronald Markowitz Real Estate, Inc. v. Sherwin-Williams Co. (Aug. 5, 1993), Cuyahoga App. No. 63379, unreported; Abdullah v. Mount Sinai Medical Center (Sept. 21, 1989), Cuyahoga App. No. 55883, unreported. Thus, where a party fails to properly or sufficiently oppose a motion for summary judgment, Civ.R. 60(B)(5) does not provide relief. Schmidt v. Swit (June 16, 1988), Cuyahoga App. No. 54084, unreported (the court stated that "[t]o hold otherwise would make an initial ruling on summary judgment meaningless"). Prior to judgment, appellants' response to the pending motion for summary judgment consisted of a two page memorandum with an attached affidavit. This effort proved insufficient to overcome appellee's motion for summary judgment. Thereafter, appellants failed to prosecute an appeal once a final appealable order existed. Despite appellants' instant appeal, the propriety of the trial court's judgment on liability is not before this panel. Moreover, Civ.R. 60(B)(5) does not provide a mechanism to gain review of said judgment. Because appellants' motion to vacate the December 22, 1995 judgment, as well as the instant assignment of error, rests solely upon the contention that the grant of summary -9- 9 judgment was contrary to law, the motion failed to articulate appropriate grounds for relief under Civ.R. 60(B)(5). Accordingly, the trial court did not abuse its discretion in denying appellants' motion for relief from judgment. Judgment affirmed. -10- 1 It is ordered that appellee recover of appellants 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 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. O'DONNELL, J., and SPELLACY, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE 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 of decision by the .