COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72916 ROBERT J. PORTER III : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION GLORIA BRIGHTMAN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 1, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-305611 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: SARAH GABINET, ESQ. One Cleveland Center, 20th Fl. 1375 East Ninth Street Cleveland, Ohio 44114 For Defendant-Appellant: MICHAEL A. PARTLOW, ESQ. Morganstern Macadams & Devito 400 Burgess Building 1406 West Sixth Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: Defendant-appellant Gloria Brightman appeals a decision denying her motion for relief from a judgment entered in favor of -2- plaintiff-appellee RobertPorter, III, AIA dba Porter the Architect in his action for fees for architectural services. Brightman assigns the following two errors for our review: I. THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY FAILING TO GRANT THE APPELLANT AN EVIDENTIARY HEARING PRIOR TO RULING UPON THE APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT. II. THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY FAILING TO GRANT THE APPELLANT'S MOTION FOR RELIEF PURSUANT TO CIV.R. 60(B). Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On February 24, 1995, Brightman and Porter signed a contract by which Porter agreed to design a 2500 square foot dental office building for Brightman with an estimated budget of $150,000.00. Porter was to receive an initial payment of $2500.00, and was to receive basic compensation at a rate equal to eight percent (8%) of the estimated cost of construction, and additional compensation of $75.00 per hour for certain other services. The contract provided that it could be terminated by either party upon at least seven days written notice in the event the other party failed to substantially perform according to the terms of the agreement. It also provided that: [C]laims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof shall be subject to and decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in -3- effect unless the parties mutually agree otherwise. When Brightman became dissatisfied with the services performed by Porter, she canceled the contract effective October 26, 1995. Thereafter, Porter filed an arbitration proceeding with the American Arbitration Association. On March 14, 1996, the arbitrator issued an ex parte award in favor of Porter for $6178.35 plus ten percent (10%) interest and $500.00 for the costs of the arbitration. The award stated that Brightman failed to appear after due notice by mail in accordance with AAA rules. On March 26, 1996, Porter filed a motion in common pleas court to confirm the arbitrator's award. Porter attempted to serve Brightman with the confirmation motion by both certified mail and regular mail. The correspondence was sent to the address Brightman listed on the contract -- 1823 Grasmer Road, Cleveland, Ohio 44112. The return receipt for the certified mail was not returned and the regular mail envelope was returned marked Return to Sender -- No Forwarding Order. Thereafter, Porter's trial counsel, Sarah Gabinet filed an affidavit for service by publication. Gabinet averred that she had been unsuccessful in obtaining service by certified mail or regular mail. She also averred that she was unable to obtain Brightman's current address from her former attorney or from the Ohio Bureau of Motor Vehicles. Gabinet also averred that an address listed for Brightman's daughter in the Cleveland telephone directory turned out to be a vacant lot and that she was unable to contact Brightman's former spouse. -4- Porter published notice of the motion in the Daily Legal News for six weeks beginning April 16, 1996. However, Brightman failed to respond to the motion. The award was confirmed by the trial court on June 13, 1996 and June 17, 1996. On June 3, 1997, Brightman filed a Civ.R. 60(B) motion for relief from judgment alleging that she never received service or notice of the arbitration complaint or the motion for confirmation. She further stated that 1823 Grasmer Road, Cleveland, Ohio 44112 was her residence address, but that she received her mail at a post office box. Brightman averred that she decided to cancel the contract with Porter when he became abusive toward her after she expressed her dissatisfaction with his work. She also averred the amount of fees awarded to Porter exceeded the amount of damages provided for under the terms of the contract. Porter responded that after the AAA was unsuccessful in its efforts to serve Brightman by mail, he went to the address on Grasmer Road and discovered a boarded-up building which appeared to be vacant and unlivable. Porter attached an enlarged photograph depicting the appearance of the building located at 1823 Grasmer Road. He stated that, because Brightman's address was unknown, she was properly served by publication. In an order dated June 30, 1997, the trial court denied Brightman's motion for relief from judgment, stating that the record indicated that Brightman has engaged in a pattern of diversionary tactics as to her whereabouts and that her defenses lack merit. This appeal followed. -5- Civ.R. 60(B) provides that a party may obtain relief from a judgment or order upon a showing that he or she (1) has a meritorious defense or claim to present if the relief is granted, (2) is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) has made the motion within a reasonable time unless the motion is based upon Civ.R. 60(B)(1), (2), or (3), in which case it must be made not more than one year after the judgment. GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the syllabus; State ex rel. Russo v. Deters (1997), 80 Ohio St.3d 152, 153-154, motion for reconsideration denied (1997), 80 Ohio St.3d 1472. In an appeal from a Civ.R. 60(B) determination, a reviewing court must determine whether the trial court abused its discretion. In re Whitman (1998), 81 Ohio St.3d 239, 242; Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20; Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. An abuse of discretion connotes more than an error of judgment, but rather, indicates an attitude on the part of the court that is unreasonable, unconscionable or arbitrary. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122. In her first assignment of error, Brightman argues the trial court erred by failing to grant her an evidentiary hearing before ruling on her motion for relief from judgment. In order to merit a hearing and prevail, a motion under Civ.R. 60(B) must comply with the requirements for all motions as set forth under Civ.R. 7(B); it must be accompanied by a memorandum of facts and law, and -6- evidentiary materials containing operative facts which would warrant relief under the rule. BN1 Telecommunications, Inc. v. Cybernet Communications, Inc. (1997), 118 Ohio App.3d 851, 856. (Citations omitted.) The operative facts must be in the form of affidavits, depositions, answers to interrogatories, written admissions, written stipulations, or other sworn testimony. Id. [Citing East Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216, at syllabus.] Unsworn allegations of operative facts contained in a motion for relief from judgment filed under Civ.R. 60(B) or in a brief attached to the motion are not sufficient evidence upon which to grant a motion to vacate judgment. BN1 Telecommunications, supra. In the affidavit attached to her motion for relief from judgment, Brightman alleged that she resided at 1823 Grasmer Rd. at all relevant times and was available for personal service at that address even though she did not receive mail there. Even assuming that Porter's affidavit was true, service by publication was proper under the circumstances. Civ.R. 4.1(1) allows for service of process to be sent by certified mail. Civ.R. 4.6(D) provides that if a certified mail envelope is returned as unclaimed, the party seeking to affect service may do so by ordinary mail. In the event the regular mail envelope is returned undelivered, service of process is not complete and the party seeking to affect service may choose any of the available methods of original service in another attempt to complete service. See Staff Notes to Civ. R. 4.6(D). -7- R.C. 2703.14(L) authorizes service to be made by publication in an action where the defendant keeps himself concealed with intent to delay or defraud his creditors. Such concealment may be inferred from Porter's inability to locate Brightman after exercising reasonable diligence. See Brooks v. Bollins (1984), 9 Ohio St.3d 8, 10-11. Determining whether the defendant concealed himself and whether reasonable diligence has been used is a matter for the trial court. See Haley v. Rural Cellular (Jan. 26, 1995), Cuyahoga App. No. 65508, unreported. The evidence is undisputed that Porter attempted to serve Brightman both by certified mail and regular mail. The civil rules do not require personal service, but provide that it is available if requested by a plaintiff. Civ.R. 4.1(2). Furthermore, though Brightman averred that she was available for personal service at 1823 Grasmer Road, her claim is belied by the photograph produced by Porter showing the home was boarded up and apparently vacant. Brightman offered no explanation for the appearance of the home and no evidence that she actually resided there, other than her own self-serving statements. The affidavit did not present sufficient operative facts to necessitate a hearing. Brightman's first assignment of error is overruled. Civ.R. 4.4(B) authorizes service to be made by publication if service cannot be effected by other methods. The evidence reveals that Porter exercised reasonable diligence in his efforts to locate Brightman, but was unsuccessful. Therefore, service by publication was proper under R.C. 2703.14(L) and Civ.R. 4.4(A). Brightman's -8- failure to respond to a properly served complaint was not excusable neglect. Accordingly, the trial court did not abuse its discretion in denying her Civ.R. 60(B)(1) motion for relief from judgment. Brightman's second assignment of error is without merit. Judgment affirmed. 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 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. Exceptions. PATTON, J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .