COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70479 TERRENCE LINDSLEY, ET AL. ) ACCELERATED DOCKET ) Plaintiffs-Appellants ) JOURNAL ENTRY ) -vs- ) AND ) CITY OF CLEVELAND ) OPINION ) Defendant-Appellee ) ) PER CURIAM Date of Announcement of Decision: JANUARY 8, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 254955 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiffs-Appellant: For Defendant-Appellee: PATRICK DICHIRO, ESQ. HEATHER GRAHAM-OLIVER 950 Standard Building Asst. Director of Law 1370 Ontario Street City of Cleveland Cleveland, Ohio 44113 City Hall - Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 -2- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Plaintiffs-appellants Terrence Lindsley and his wife brought this action against the City of Cleveland for negligence and intentional tort arising out of Lindsley's employment at Cleveland Hopkins Airport which included burying barrels of toxic solvents. Plaintiffs contend the trial court abused its discretion in not granting plaintiffs relief from default judgment under Civ.R. 60(B). We find no error and affirm. On February 27, 1989, plaintiffs filed their first complaint in Common Pleas Case No. 165385. An amended complaint was thereafter filed. The defendant answered both the original and amended complaint. Thereafter, discovery proceeded and the case was set for trial several times. However, on July 9, 1992, the plaintiffs voluntarily dismissed Case No. 165385 without prejudice pursuant to Civ.R. 41(A). The case was refiled on July 9, 1993, as Common Pleas Case No. 254955. Although an answer was filed by the City on September 10, 1993, it was mistakenly filed under the original Case No. 165385 and does not appear on the docket of Case No. 254955. There is no dispute that the City appeared in the instant case and defended the matter at scheduled pretrials, attorney conferences and at the arbitration hearing. Since discovery had already been completed in the prior case, the matter was referred to arbitration to be held on June 27, 1994. -3- Thereafter, arbitration was set three different times due to scheduling difficulties. Three proper notices of arbitration were mailed reflecting the rescheduled dates. The arbitration dates were set and continued from August 19, 1994 to November 17, 1994 and finally to December 6, 1994. The continuance to December 6 was due to plaintiffs' own motion. Plaintiffs' counsel claims that he never received notice of the last hearing set for December 6, 1994. A week or so prior to the December 6, 1994 hearing, the City's counsel attempted to telephone plaintiffs' counsel because she had not heard from him. Plaintiffs acknowledged this in their motion for relief from judgment at p. 1. On December 6, 1994, the arbitration hearing was convened but neither plaintiffs nor their counsel appeared. Judgment was rendered for the City and the case was disposed of by arbitration decree on or about December 7, 1994. Notices were sent to the parties. Thereafter, on January 17, 1995, the Court entered judgment on behalf of the City. The plaintiffs received notice of the Court's final journal entry through a postcard. See plaintiffs' counsel's affidavit attached to motion for relief from judgment. One year later, on January 17, 1996, plaintiffs moved, pursuant to Civ.R. 60(B), for relief from judgment. Plaintiffs' counsel at that time claimed that he had not received notice of the December 6, 1994 arbitration date and that he knew nothing of the adverse judgment until he received a postcard from the court regarding the entry of judgment in favor of the City on January 18, -4- 1995. On March 5, 1996, the court overruled the motion for relief from judgment and this appeal ensued. Plaintiffs' sole assignment of error states: I. THE TRIAL COURT ERRED WHEN IT OVERRULED PLAINTIFFS' MOTION FOR RELIEF FROM JUDGMENT WHERE THERE WAS UNCONTROVERTED AND UNDISPUTED EVIDENCE THAT SAID MOTION SHOULD HAVE BEEN GRANTED. The Ohio Supreme Court recently summarized the standards we must apply in reviewing an appeal from a Civ.R. 60(B) ruling in State ex rel. Russo v. Deters (1997), 80 Ohio St.3d 152, 153-54: In an appeal from a Civ.R. 60(B) determination, a reviewing court must determine whether the trial court abused its discretion. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564, 566. An abuse of discretion connotes conduct which is unreasonable, arbitrary, or unconscionable. State ex rel. Edwards v. Toledo City School Dist. Bd. Of Edn. (1995), 72 Ohio St.3d 106, 107, 647 N.E.2d 799, 801. In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the movant must establish 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); 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), not more than one year after the judgment, order or proceedings was entered or taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc.(1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, paragraph two of the syllabus. The first prong that a movant must satisfy to prevail on a Rule 60(B) motion is that of alleging a meritorious claim or defense. GTE Automatic Electric, Inc., supra. Under Civ.R. 60(B), a movant's burden is only to allege a meritorious claim, not to -5- prevail on the merits of the claim. Colley v. Bazel (1980), 64 Ohio St.2d 243 at 247, fn. 3. A movant fails to meet his burden of proof by failing to submit factual material in support of a meritorious claim. Zashin, Rich, Sutula & Monastra Co., L.P.A. v. Offenberg (1993), 90 Ohio App.3d 436, 448. The movant must submit factual evidentiary material which on its face demonstrates the timeliness of the motion, reasons why the motion should be granted and that he has a meritorious claim. Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 105. The evidentiary materials necessary for relief from judgment must present operative facts and not mere general allegations or conclusions. Id. If the material submitted by the movant in support of a motion for relief from judgment contains no operative facts or meager and limited facts and conclusions of law, it will not be an abuse of discretion for the trial court to overrule the motion. Id. at 107. The Lindsleys, in their Civ.R. 60(B) motion, supporting brief and affidavit failed to assert the existence of a meritorious claim, or any operative facts that would even support a claim. The record is devoid of any discovery materials, deposition testimony or other evidence demonstrating or creating an inference supporting the existence of a meritorious claim. The record directly refutes the existence of a meritorious claim since the only substantive information contained in the record is the report and the award of the arbitrators and affidavit of plaintiffs' counsel. -6- A meritorious claim needs to be addressed in a movant's original 60(B) motion at the trial court level. McCann v. Lakewood (1994), 95 Ohio App.3d 226, 236. We find that the Lindsleys failed to allege a meritorious claim or to state any operative facts that would support such a claim sufficient to satisfy the first prong of GTE. Civ.R. 60(B) also provides: 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, *** (5) any other reason justifying relief from the judgment. The movant has the burden of proving that he is entitled to relief. Adomeit, supra at 105. The Lindsleys claim their failure to receive notice of the continued arbitration date of December 6, 1995 falls under either subsection (1) or (5) of Civ.R. 60(B). On the surface, the Lindsleys' claim of not being notified appears to be offered under excusable neglect. However, in order to overcome the presumption that constructive notice was sufficient to place counsel on notice of the hearing date, it was necessary for counsel to submit appropriate evidentiary materials supporting an argument that constructive notice was ineffective to reasonably place him on notice. Zashin, supra at 447. In the case at bar, the Lindsleys were on actual notice. Even in their Civ.R. 60(B) motion they state that counsel for defendant-appellee *** informed him that she had tried to call because she had not heard from counsel for plaintiffs. Moreover, -7- plaintiffs' counsel admits that he received every other notice from the court. Even giving the Lindsleys the benefit of the doubt with respect to actual notice, they should have been placed on constructive notice. An alleged failure to receive notice of trial does not constitute a basis for relief under Civ.R. 60(B) when the movant received constructive notice of the hearing. Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118; Eisenberg v. Nakon (May 9, 1991), Cuyahoga App. No. 60489, unreported; Inter-Urban Rental Sys., Inc. v. Tullos (Apr. 25, 1991), Cuyahoga App. No. 58630, unreported; Hamper v. Birmele (May 17, 1990), Cuyahoga App. No. 58522, unreported; Fendrich v. Fendrich(Mar. 9, 1989), Cuyahoga App. No. 54840, unreported. The arbitration date was only moved because of a request for continuance made on behalf of plaintiffs by their counsel. The Lindsleys were aware that their continuance had been granted, as they acknowledged this in their Civ.R. 60(B) motion as the reason for the arbitration being rescheduled. Further, the Lindsleys present no operative facts or evidentiary material that would rebut a presumption of constructive notice. Plaintiffs have failed to demonstrate sufficient facts to establish excusable neglect. Rule 60 also mandates that a motion founded upon 60(B) must be made within a reasonable time, and for reasons (1), (2), (3), not more than one year after the judgment order or proceeding was entered or taken. While a party may have a possible right to file a motion to vacate a judgment up to one year after the entry of -8- judgment, the motion is also subject to the reasonable time provision. Adomeit, supra at 316. (A motion may be filed within one year under Civ.R. 60(B) but still may not be considered if not within a reasonable time.) The movant bears the burden of submitting factual material which demonstrates the timeliness of the motion and must explain any delay in filing. Youssefi v. Youssefi (1991), 81 Ohio App.3d 49, 53. The Lindsleys filed their 60(B) motion one year to the date after judgment was entered against them. However, in the instant matter, they offered no explanation in the trial court or on appeal for the delay. They admit that they received notice of the judgment entry, which was entered on January 17, 1995, when they received a postcard from the court. In light of this, there is no explanation for the one-year delay in filing the Rule 60(B) motion. Accordingly, the movants have failed to meet their burden of establishing the timeliness of their motion. Youssefi, supra at 53. Pursuant to the foregoing discussion, we find no merit to the appeal. The trial court did not abuse its discretion in denying plaintiffs' Civ.R. 60(B) motion. Plaintiffs' sole assignment of error is overruled. Judgment affirmed. -9- It is ordered that appellee recover of appellants 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 Court of Common Pleas 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 M. PORTER, PRESIDING JUDGE JOHN T. PATTON, JUDGE LEO M. SPELLACY, 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 .