COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73698 JAMES MARINO, ET AL. : : Plaintiffs-appellees : : -vs- : JOURNAL ENTRY : AND JOEL MARINO, EXECUTOR, ET AL. : OPINION : Defendants-appellants : DATE OF ANNOUNCEMENT : DECEMBER 3, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Probate Court Case No. 1126824 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellees: Neil R. Wilson, Esq. Neil R. Wilson Co., L.P.A. 1501 Madison Avenue Painesville, Ohio 44077 For defendants-appellants: David N. Patterson, Esq. Patterson & Simonelli 33579 Euclid Avenue Willoughby, Ohio 44094 For Admin. Est. of Phyllis Marino: Kenneth J. Fisher, Esq. 1414 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2204 MICHAEL J. CORRIGAN, J.: Joel and Anthony Marino, defendants-appellants, appeal from he judgment of the Cuyahoga County Court of Common Pleas, Probate Division, Case No. 1126824, in which the trial court denied -2- defendants-appellants' Civ.R. 60(B) motion for relief from judgment. Defendants-appellants assign one error for this court's review. Defendants-appellants' appeal is not well taken. This action arises out of an intra-family dispute between four adult children over the estate of their mother, Phyllis Marino. On February 26, 1996, James Marino and Mary Jane Beres, plaintiffs- appellees, filed a complaint in Cuyahoga County Probate Court contesting the purported will of their mother, Phyllis Marino. The document in question named their brothers Joel and Anthony Marino, defendants-appellants, as the major beneficiaries under the will. Plaintiffs-appellees were each left with a nominal inheritance. On March 10, 1997, a jury trial took place during which evidence was presented that questioned the validity of Phyllis Marino's signature on the will. On March 12, 1997, the jury concluded that the document in question was not the last will and testament of Phyllis Marino. Defendants-appellants subsequently filed a motion for a new trial on March 26, 1997, which was denied by the trial court. On April 25, 1997, defendants-appellants filed their notice of appeal from the judgment of the trial court. On August 8, 1997, this court ultimately dismissed defendants- appellants' appeal, sua sponte, due to defendants-appellants' failure to file a transcript of the trial court proceedings. On December 1, 1997, defendants-appellants, with newly retained counsel, filed the underlying motion for relief from judgment pursuant to Civ.R. 60(B). In their motion, defendants- -3- appellants argued that a handwriting expert retained after completion of the jury trial, determined that Phyllis Marino's signature on the disputed will was not a forgery. In their expert's opinion, the first name was probably written with assistance while the last name was written by Phyllis Marino herself. Defendants-appellants maintained further that their trial counsel did not adequately pursue appropriate defenses to the will contest or diligently pursue the direct appeal from the jury's conclusion. On December 2, 1997, the trial court denied defendants- appellants' motion for relief from judgment. On December 17, 1997, defendants-appellants filed a timely notice of appeal from the judgment of the trial court. Defendants-appellants' sole assignment of error on appeal states: THE CUYAHOGA COUNTY PROBATE COURT ABUSED ITS DISCRETION WHEN IT OVERRULED DEFENDANTS' 60(B) MOTION FOR RELIEF FROM JUDGMENT WITHOUT AN EVIDENTIARY HEARING WHEN A MERITORIOUS DEFENSE WAS DEMONSTRATED AND THE MOTION WAS TIMELY FILED. Defendants-appellants argue, through their sole assignment of error, that the trial court erred in denying their Civ.R. 60(B) motion for relief from judgment without first conducting an evidentiary hearing. Specifically, defendants-appellants maintain that they have presented a meritorious defense as required under Civ.R. 60(B) in that new evidence regarding the validity of Phyllis Marino's signature has come to light since the trial in probate court. Defendants-appellants maintain further that, since the motion was filed in a timely manner and the motion raises -4- sufficient operative facts to warrant relief, they were entitled, at the very least, to an evidentiary hearing on the motion. Civ.R. 60(B) governs motions for relief from judgment and provides in pertinent part: 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 proceedings for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; *** (5) any other reason justifying relief from judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. The Ohio Supreme Court has summarized the requirements necessary to warrant relief from judgment pursuant to Civ.R. 60(B) as follows: 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 was 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 judgment, order or proceeding was entered and taken. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, at paragraph two of syllabus. The failure by a moving party to establish any one of these three elements warrants dismissal of the motion for relief from judgment. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20; Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App.2d 285. -5- In order to merit a hearing and prevail on a motion for relief from judgment under Civ.R. 60(B), a movant 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. Angel v. Angel (Feb. 18, 1993), Scioto App. No. 92CA2071, unreported, at 5; Sykes Consrt. Co., Inc. v. Maple Wood Care Inc. (May 3, 1991), Portage App. No. 90-P-2218, unreported, at 3; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 316 N.E.2d 469. The allegation of operative facts required 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 or in a brief attached to the motion are not sufficient evidence upon which to grant a motion to vacate judgment. East Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216, 394 N.E.2d 348 at syllabus. The determination as to whether to grant a Civ.R. 60(B) motion for relief from judgment is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75. In this instance, the trial court's ruling on defendants-appellants' motion for relief from judgment will not be disturbed unless it is clear that the decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. -6- In addition, a motion for relief from judgment pursuant to Civ.R. 60(B) may not be used as a substitute for a timely appeal. Doe v. Trumbull County Children Services Board (1986), 28 Ohio St.3d 128; National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 63; McCann v. City of Lakewood (May 12, 1994), Cuyahoga App. Nos. 64073, 64508, 64631, unreported. If the motion is premised upon issues which could have been raised on appeal, a trial court does not abuse its discretion by denying such motion. Justice v. Lutheran Social Services of Central Ohio (1992), 79 Ohio App.3d 439, 442. In the case herein, a review of the record from the trial court demonstrates that the trial court did not err in denying defendants-appellants' motion for relief from judgment. Defendants-appellants' central argument in their motion is that they have a meritorious defense to present in the event relief is granted. This defense is two-fold: (1) defendants-appellants maintain that a handwriting expert hired six months after the trial in this matter concluded that Phyllis Marino's signature on the will was valid, and (2) trial counsel's performance was deficient in a number of respects both during trial and during the direct appeal from the judgment. Clearly, merely employing different handwriting experts after the conclusion of the trial until such time as one is found who will agree with defendants-appellants' position does not constitute newly discovered evidence pursuant to Civ.R. 60(B) nor does it satisfy the first prong of the GTE test requiring a meritorious defense or claim to present if relief were -7- granted. Caraballo v. Wright (March 2, 1995), Cuyahoga App. No. 66971, unreported. Similarly, allegations that trial counsel was deficient are not properly raised in this matter through a Civ.R. 60(B) motion for relief from judgment. Such matters are the subject of direct appeal and deficiencies of counsel are not grounds for relief in a civil case since conduct of counsel is imputed to the client. Relief under Civ.R. 60(B) is not available as a substitute for appeal.State, ex rel. The Arcade Company, Ltd. v. Cuyahoga County Board Of Commissioners (Oct. 27, 1994), Cuyahoga App. No. 66088, unreported at 9. For the foregoing reasons, defendants-appellants' sole assignment of error is not well taken. Judgment of the trial court is affirmed. -8- It is ordered that appellees recover of appellants 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 Probate 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. JAMES M. PORTER, P.J., AND DIANE KARPINSKI, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .