COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71672 CUYAHOGA SUPPLY & TOOL, INC. : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION TERRENCE KILBANE, ET AL. : : : DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: MARCH 12, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-266558. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Blair N. Melling, Esq. Clarence B. Rader, III, Esq. Melling, Melling & Bell 31 Columbus Road P.O. Box 46311 Bedford, OH 44146 For Defendants-Appellants: David A. Corrado, Esq. Atrium Office Plaza, No. 216A 668 Euclid Avenue Cleveland, OH 44114 -2- TIMOTHY E. McMONAGLE, J.: Edward Kilbane and Sons Masonry Company, Inc. and Terrence Kilbane, defendants-appellants herein, appeal the decision of the Cuyahoga County Common Pleas Court denying their motions for relief from judgment which sought to vacate the default judgments rendered against both parties. For the reasons that follow, we affirm. On March 3, 1994, plaintiff-appellee, Cuyahoga Supply & Tool Inc. ( Cuyahoga Supply ), filed a complaint on an account against Edward Kilbane and Sons Masonry Company, Inc. and Terrence Kilbane, individually (collectively referred to as appellants ). The complaint alleged that appellants owed Cuyahoga Supply $15,684.71 plus interest at a rate of one and one-half percent. Attached to the complaint were copies of invoices it claimed were outstanding. When appellants failed to answer the complaint, Cuyahoga Supply moved for default judgment first against the corporation because service was perfected first, and then against Terrence Kilbane individually. Despite being notified of the respective hearing dates, appellants failed to appear and judgment was rendered against the corporation on May 3, 1994 and against Kilbane individually on December 16, 1994. Appellants filed separate motions for relief from judgment in July 1996; the corporation filing on July 30th and Terrence Kilbane filing on July 31st. Attached to each motion was an affidavit of Terrence Kilbane in which he averred that: (1) the corporation purchased building supplies from Cuyahoga Supply but that the amount due was in the area of $2,000 to $3,000 rather than -3- $15,684.71; (2) he never signed a credit application in his individual capacity; (3) the signatures on the credit application and invoices were forgeries; (4) he did not seek legal representation sooner because he was led to believe by Cuyahoga Supply that the lawsuit would be dismissed; (5) he was unaware that Cuyahoga Supply filed motions for default judgment; and (6) he immediately contacted his attorney when Cuyahoga Supply filed a complaint for foreclosure on February 23, 1996. In its order denying relief from judgment, the court found appellants' allegations of forgery to be unsubstantiated and further that appellants never denied the delivery of the goods. Appellants timely appeal this decision and assign the following errors for our review: I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANTS' MOTIONS FOR RELIEF FROM JUDGMENT. II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANTS' MOTIONS FOR RELIEF FROM JUDGMENT WITHOUT A HEARING. I. In the first assignment of error, appellants contend that the trial court erred in denying their request for relief from judgment under Civ.R. 60(B) when the affidavit testimony of Terrence Kilbane supports that they have satisfied the requirements of this rule and are therefore entitled to the requested relief. -4- To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate 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 proceeding was entered or taken. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St.2d 146. Because these requirements are written in the conjunctive rather than disjunctive, all three requirements must be satisfied in order to be entitled to relief. Id. at 151; Argo Plastic Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 391. A ruling on a motion for relief from judgment under this rule is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of that discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. Abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Kilbane & Sons contend that the invoices supporting Cuyahoga Supply's complaint against it contain forged signatures evidencing receipt of merchandise. Terrence Kilbane asserts that the credit application, which serves as the basis of his individual liability for Kilbane & Sons' debts, likewise contains a forged signature. Because of these alleged forged documents, appellants collectively -5- argue that they have presented a meritorious defense under GTE and that the use of these documents by Cuyahoga Supply support that the latter had perpetrated a fraud upon the court justifying relief from judgment under Civ.R. 60(B)(5). Not being limited under this subsection to requesting relief within the one-year time limitation as required for subsections (B)(1) through (3), they further argue that their request was made within a reasonable time when filed within four months after Cuyahoga Supply initiated foreclosure proceedings against Terrence Kilbane. First, while it is true that the movant's burden is to allege a meritorious claim or defense and not to prove that he would prevail on the claim or defense, the evidentiary materials necessary for relief from judgment must present operative facts and not mere general allegations or conclusions. See Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 67; see, also, East Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216, 220; Bates & Springer (1978), 56 Ohio App.2d 223, 228; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 105. Here, Terrence Kilbane avers in his affidavit that Kilbane & Sons owed a mere $2,000 to $3,000" and that Cuyahoga Supply forged or otherwise altered documents to reflect the amount stated in its complaint, $15,684.71. Merely disputing the amount of money owed does not constitute sufficiently specific operative facts. Associated Estates Corp. v. Fellows (1983), 11 Ohio App.3d 112, 116. Even if we were to assume that this evidentiary material sufficiently demonstrates the existence of a meritorious defense, -6- it is insufficient to support that Cuyahoga Supply perpetrated a fraud upon the court. In Coulson v. Coulson (1983), 5 Ohio St.3d 12, the Supreme Court of Ohio discussed the concept of fraud upon the court: One commentator, however, had provided this definition: `Fraud upon the court' should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by the officers of the court so that the judicial machinery can not (sic) perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Fraud, inter partes, without more, should not be a fraud upon the court, but redress should be left to a motion under 60(B)(3) or to the independent action. 7 Moore's Federal Practice (2 Ed.1971) 515, Paragraph 60.33. See, also, Serzysko v. Chase Manhattan Bank (C.A.2, 1972), 461 F.2d 699; Kupferman v. Consolidated Research & Mfg. Corp. (C.A.2, 1972), 459 F.2d 1072, 1078; Kenner v. Commr. of Internal Revenue (C.A.7, 1968), 387 F.2d 689, 691. Accord Hartford v. Hartford (1977), 53 Ohio App.2d 79, at pages 83-84. Here, appellants contend that Cuyahoga Supply, an adverse party, relied on forged documents in order to obtain a default judgment against them. Even if true, this is inter partes fraud for which relief under Civ.R. 60(B)(3) is more appropriate. Moreover, this court has previously held that the use of forged documents in support of a party's lawsuit, in and of itself, does not constitute fraud upon the court. CIT Financial Services, Inc. v. Lazzano (Apr. 23, 1984), Cuyahoga App. No. 47401, unreported. Not having filed their motion for relief from judgment within one year as required when seeking relief under Civ.R. 60(B)(3), -7- appellants have failed to demonstrate that they are entitled to relief under this rule. Alternatively, appellants argue that relief under Civ.R. 60(B)(5) is justified because the damages awarded by the trial court are excessive. Specifically, they argue that the invoices attached to Cuyahoga Supply's motion for default judgment do not equal the amount requested in its complaint but rather total -8- $4,330.09.1 In support of this argument, appellants rely on this court's decision in Bajtkiewicz v. Wisniewski (Jan. 28, 1993), Cuyahoga App. No. 63661, unreported, wherein we held that an excessive award of damages was sufficient to trigger relief under Civ.R. 60(B)(5). Appellants' reliance on our decision in Bajtkiewicz is misplaced because it did not involve an action on an account as does the instant case. Proof of the amount of damages is not required before a default judgment may be granted in an action founded upon a liquidated damage claim based upon an account. Buckeye Supply Co. v. Northeast Drilling Co. (1985), 24 Ohio App.3d 134, 136. The term liquidated claim means one that can be determined with exactness or by application of definite rules of law. Huo Chin Yin v. Amino Products Co. (1943), 141 Ohio St. 21. Attached to Cuyahoga Supply's complaint were copies of invoices it claimed were outstanding.2 As a liquidated claim, the trial court did not err in denying relief from judgment on the basis that the judgment rendered against appellants was excessive.3 In that 1Our review of the record demonstrates that the first motion contained no attachments and the second appended invoices totaling $12,784.56, a figure not consistent with the relief requested in the complaint nor with the $4,330.09 figure suggested by appellants. 2It should be noted that the invoices attached to the complaint total $17,334.37, not $15,684.71. 3Appellants likewise argue that the judgment was excessive in that the trial court altered the interest rate from the requested one and one-half percent to 18 percent. The interest rate requested by Cuyahoga Supply was based on a monthly rate, as opposed to an annual rate, and the court merely converted the monthly rate to an annual rate. -9- appellants have failed to demonstrate that they are entitled to relief under Civ.R. 60(B)(5), the trial court did not abuse its discretion in denying appellants' motions for relief from judgment. We recognize that Civ.R. 60(B) is a remedial rule to be liberally construed with a view toward effecting a just result. Colley v. Bazell, (1980), 64 Ohio St.2d 243, 248. Nonetheless, the competing principle that litigation must be brought to an end is equally relevant in this case. Accordingly, appellants' first assignment of error is not well taken. II. In their second assignment of error, appellants contend that the trial court erred in not holding a hearing on the motion. If a movant requesting relief under Civ.R. 60(B) has not demonstrated that they are entitled to relief under this rule, a court does not abuse its discretion in denying the requested relief without a hearing. Bates& Springer, Inc. v. Stallworth (1978), 56 Ohio App.2d 223, 228; see, also, Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 19. As appellants have not demonstrated such an entitlement, it was not error for the trial court to deny the motion without holding a hearing. Accordingly, appellants' second assignment of error is not well taken and is overruled. -10- 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 Cuyahoga County 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. BLACKMON, A.J. and KARPINSKI, J., CONCUR. JUDGE TIMOTHY E. McMONAGLE 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 .