COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73372 PAMELA ZWOLINSKI : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT NYE, ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 24, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-288150 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant, MARTHA V. KIM (#0041536) Pamela Zwolinski: 330 Standard Building Cleveland, Ohio 44113 For Defendants-Appellees, SUSAN BROOKS DICKINSON Robert Nye and Beatrice Nye: (#0007773) 19111 Detroit Road, Suite 306 Rocky River, Ohio 44116 For Defendants-Appellees, J. TERENCE BURKE (#0007958) Realty One and Marty Collins: JON F. DEEGAN (#0033401) 6000 Rockside Woods Blvd. Cleveland, Ohio 44131 SPELLACY, J.: Plaintiff-appellant Pamela Zwolinski ( appellant ) appeals -2- from the trial court's denial of her motion for relief from judgment. Appellant assigns the following errors for our review: I. DENIAL OF PLAINTIFF'S MOTION FOR RELIEF PURSUANT TO RULE 60(B) IS AN ABUSE OF DISCRETION FOR THE REASON THAT THERE WERE IRREGULARITIES IN THE ARBITRATION PROCEEDINGS WHICH MATERIALLY PREJUDICED PLAINTIFF'S CASE AND WHICH PERMIT PLAINTIFF'S CASE TO BE RECONSIDERED PURSUANT TO A RULE 60(B) MOTION. II. DENIAL OF PLAINTIFF'S MOTION FOR RELIEF PURSUANT TO RULE 60(B) IS AN ABUSE OF DISCRETION FOR THE REASON THAT DECISIONS WERE MADE DURING THE ARBITRATION PROCEEDINGS WHICH WERE NOT WITHIN THE PARAMETERS OF ARBITRATION PROCEEDINGS, WHICH MATERIALLY PREJUDICED PLAINTIFF'S CASE, AND WHICH PERMIT PLAINTIFF'S CASE TO BE RECONSIDERED PURSUANT TO A RULE 60(B) MOTION. III. DENIAL OF PLAINTIFF'S MOTION FOR RELIEF PURSUANT TO RULE 60(B) IS AN ABUSE OF DISCRETION FOR THE REASON THAT PLAINTIFF HAD A MERITORIOUS DEFENSE TO ALL ISSUES RAISED BY DEFENDANT AS GROUNDS FOR A DECISION IN FAVOR OF DEFENDANT. IV. APPELLANT FILED A TIMELY APPEAL FROM THE DECISION OF THE ARBITRATION WHICH WAS ERROR [SIC] TREATED AS AN APPEAL TO THE COURT OF APPEALS AND DISMISSED SUA SPONTE; APPELLANT THEN FILED AT THE TRIAL COURT LEVEL A MOTION PURSUANT TO O.R.C.P. 60(B) WHICH WAS DENIED BY THE TRIAL COURT. V. DENIAL OF PLAINTIFF'S RULE 60(B) MOTION IS AN ABUSE OF DISCRETION BY THE TRIAL [SIC] FOR THE REASON THAT BY CLERICAL MISTAKE, INADVERTENCE, OR EXCUSABLE NEGLECT, THE NOTICE OF APPEAL FILED ON PLAINTIFF'S BEHALF WAS TREATED BY THE CLERK'S OFFICE OF THE CUYAHOGA COUNTY COMMON PLEAS COURT AS AN APPEAL TO THE OHIO COURT OF APPEALS AND PLAINTIFF HAD NO KNOWLEDGE OF THIS FACT UNTIL JULY 16, 1997 WHEN PLAINTIFF'S COUNSEL RECEIVED A NOTICE FROM THE COURT OF APPEALS -3- DISMISSING THE CASE. Finding judgment of the trial court is affirmed. The underlying facts of the instant case involve a real estate transaction, wherein defendants-appellees Robert Nye and Beatrice Nye sold their former residence, located at 3863 Eleanor, in North Olmsted, Ohio, to appellant. During this transaction, defendants- appellees Realty One and Mary Collins were, respectively, the Nyes'appellant's a listing broker and agent. On April 20, 1995, appellant filed a complaint in Common Pleas Court claiming that appellees fraudulently concealed defects in the basement of the subject property. The case was referred to arbitration pursuant to Loc.R. 29, and an arbitration hearing was held before a three-member panel on May 31, 1996. On June 4, 1996, the report and award of the arbitrators was filed; the arbitrators found in favor of appellees. On June 13, 1996, appellant filed a notice of appeal from the report and award of the arbitrators. However, appellant failed to follow the procedural requirements of Loc.R. 291 and, as a result, her notice 1 Loc.R. 29, Part VII(A)(1)(a) states: A notice of appeal de novo, together with an affidavit that the appeal is not taken for delay but upon the belief an injustice has been done, shall be filed by the appellant in the office of the ADR Administrator acting for the Clerk of Courts. The sum mentioned in (1)(b) below [$175.00] shall be filed with the notice and affidavit. -4- of appeal was inadvertently filed with this court (Cuyahoga App. No. 70814). On July 1, 1996, this court dismissed Cuyahoga App. No. 70814 sua sponte for lack of a final appealable order. On July 11, 1996, the trial court entered judgment for appellees based on the arbitration ruling. On August 12, 1996, appellants filed an appeal with this court from the trial court's final judgment (Cuyahoga App. No. 71109). On September 16, 1996, this court dismissed appellant's appeal sua sponte, pursuant to Loc.App.R. 4(D), for failure to file a praecipe. On December 10, 1996, appellant filed a motion for relief from judgment. In her motion, appellant claimed that she was entitled to relief under Civ.R. 60(B)(1), (4) and/or (5); appellant further argued that if her arbitration appeal had been properly filed and the case returned to the docket of the trial court, she would have prevailed on her claims against appellees. However, appellant failed to attach any evidentiary material to support the factual contentions contained in her motion. On October 6, 1997, the trial court denied appellant's motion for relief from judgment. On October 21, 1997, appellant filed the instant appeal. II. (Emphasis added.) We note that appellant failed to attach the required affidavit to her notice of appeal. Moreover, contrary to Loc.R. 29, appellant filed her notice of appeal with the Clerk of Courts instead of the ADMR Administrator. Finally, appellant filed $100.00 with the Clerk instead of the $175.00 fee required for an arbitration appeal under Loc.R. 29. -5- Appellant's five assignments of error raise the same basic argument; appellant claims that the trial court erred in denying her motion for relief from judgment. To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate: 1) that the party has a meritorious defense or claim to present if relief is granted; 2) that the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and 3) that the motion is made within a reasonable time. GTE Automatic Elec. v. ARC Industries (1976), 47 Ohio St.2d 146, 150. A motion for relief from judgment is addressed to the sound discretion of the trial court, and a ruling on a motion will not be disturbed on appeal absent a showing of an abuse of discretion. 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. State ex rel. Russo v. Deters (1997), 80 Ohio St.3d 152, 153. 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 evidentiary materials containing operative facts which would warrant relief under the rule must be attached. BNI Telecommunications, Inc. v. Cybernet Communications, Inc. (1997), 118 Ohio App.3d 851, 856. The quality of operative facts which must be demonstrated by the movant to warrant relief was defined by this court in East Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216, as follows: -6- The allegation of 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. 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. Id. at syllabus. See also BNI Telecommunications, Inc., 118 Ohio App.3d at 856; Cuyahoga Supply & Tool, Inc. v. Kilbane (Mar. 12, 1998), Cuyahoga App. No. 71672, unreported. Applying this standard of review to the facts before us, we find that appellant failed to present, in evidentiary form, operative facts demonstrating that she was entitled to relief under Civ.R. 60(B). The only operative facts relating to appellant's claims contained in the record are those alleged in the brief attached to appellant's motion for relief from judgment. Pursuant to East Ohio Gas and its progeny, these unsworn allegations made by appellant were not of sufficient evidentiary quality to warrant Civ.R. 60(B) relief. Therefore, the trial court did not abuse its discretion in denying appellant's motion for relief from judgment. Accordingly, appellant's five assignments of error lack merit and her appeal is overruled. Judgment affirmed. -7- 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. TERRENCE O'DONNELL, P.J. and JAMES D. SWEENEY, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 -8- journalization of this court's announcement of decision by the .