COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71169 ALEX COLLINS, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION SHOPRITE SUPERMARKETS, INC., : ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : JULY 3, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 283883 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Robert C. Brooks II Bank One Center 600 Superior Avenue Suite 1300 Cleveland, Ohio 44114 For defendants-appellees: Robert S. Ohly 15985 E. High Street, #207 P.O. Box 1236 Middlefield, Ohio 44062 -2- NAHRA, P.J.: Appellant, Alex Collins III ("Collins"), appeals from the trial court's denial of his motion for relief from judgment. Because in his motion for relief appellant did not provide evidence of a meritorious claim, we affirm the decision of the trial court. The record reflects that Collins commenced this litigation in January, 1995. Collins alleged that he was injured by appellee's security guards and it is clear from the record that he was injured after his failed attempt to rob appellee's store. The trial court set the first pre-trial conference for August 8, 1995. Appellant's statement of the facts, which we accept as accurate pursuant to App.R. 18(C), indicates that appellant was late for the pre-trial conference. The record reveals that no other pre-trial conferences were held. On September 29, 1995, pursuant to Civ.R. 41(B)(1), the trial court dismissed the case with prejudice. The court based its dismissal on appellant's failure to appear at the August pre-trial conference as well as non-docketed September pre-trial conferences. Appellant filed a motion for relief from judgment. The trial court denied the motion. Collins timely appealed and assigned three errors for review. I. Appellant's three assignments of error argue that the trial court improperly denied his motion for relief from judgment. The first, second and third assignments of error state respectively: -3- The trial court acted in an arbitrary and capricious manner in overruling Appellant's Motion for Relief from Judgment because the court failed to provide notice of the pre-trials which the court alleged as the basis for dismissing the action. The trial court acted in an arbitrary and capricious manner in overruling the Appellant's Motion for Relief from Judgment since the court failed to provide notice of the dismissal prior to dismissing the action sua sponte (sic). The trial court acted in an arbitrary and capricious manner in overruling Appellant's Motion for Relief from Judgment because Appellant has a meritorious claim. Because these assignments of error invoke the same legal standards, we address them simultaneously. 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. The applicable standard of review is well established. "The question of whether relief should be granted is left to the sound discretion of the trial court." Weaver v. Colwell Financial Corp. (1992), 73 Ohio App.3d 139, 143, 596 N.E.2d 617, 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 -4- 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. In addition to the aforementioned showing, a Civ.R.60(B) movant must demonstrate operative facts supporting a meritorious claim or defense. Weaver, supra. [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. Where evidence of this quality is not before the trial judge, the motion for relief is properly denied. Elyria v. Trubey (1983), 24 Ohio App.3d 44, 48, 24 OBR 97, 493 N.E.2d 254. While appellant demonstrated two of the three required elements, to wit, timeliness and grounds for relief under Civ.R. 60(B), he failed to produce "affidavits, depositions, answers to interrogatories, written stipulations, or other sworn testimony" supporting a potentially meritorious claim. Rather, Collins submitted medical records which detailed his injuries. The medical records were not authenticated; they were not made under oath. Thus, the medical records do not possess the evidentiary quality -5- required under East Ohio Gas Co., supra, and its progeny. Further, even if we approved of the use of these records, there is no indication therein that appellee or its employees committed an act for which civil liability would attach. The only reference in the medical records to the cause of plaintiff's injuries reveals that he was "injured in the process of robbing a store," and that "someone hit him with an unknown object across his left kneecap." Accordingly, the trial court did not abuse its discretion when it denied appellant's motion for relief. Appellant's three assignments of error are overruled. Judgment affirmed. -6- It is ordered that appellees recover of appellant their 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. KARPINSKI, 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 .