[Cite as Jackson v. Coker , 2014-Ohio-5114.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

JEWELL JACKSON Appellee

v. NATHANIEL COKER Appellant C.A. No. 27123

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2011-08-4585

DECISION AND JOURNAL ENTRY Dated: November 19, 2014

MOORE, Judge. {¶1} Defendant-Appellant, Nath aniel Coker, appeals from the September 24, 2013 judgment of the Summit County Court of Common Pleas. This Court affirms.

I. {¶2} This matter stems from a dispute over the ownership of real property known as 161 Lake Street, Akron, Ohio (“161 Lake Street ”). In 2010, Plaintiff-Appellee, Jewell Jackson, allegedly gave Mr. Coker, her boyfriend, the fund s to purchase 161 Lake Street after she and Mr. Coker agreed on the following terms: if Ms. Jackson gave Mr. Coker money to purchase the property and allowed him to place title in his name in order to improve his credit, Mr. Coker would live in the property while it was being renovated, and convey title back to Ms. Jackson after the renovations were complete. According to the record, Ms. Jackson spent approximately $4,000 on the purchase of the property, and appr oximately $11,000 on labor and materials for the renovations. Once the property was habitable, Ms. Jackson, without Mr. Coker’s knowledge,2

agreed that Darwin Spencer could rent one of th e rooms in the house. Mr. Coker became angry, removed Ms. Jackson, Mr. Spencer, and Mr. Sp encer’s property from 161 Lake Street, and verbally threatened Ms. Jackson. After this incident, Ms. Jackson demanded that 161 Lake Street be deeded back to her, and Mr. Coker refused. {¶3} In August of 2013, Ms. Jackson filed a co mplaint against Mr. Coker, which, as amended, alleged (1) fraud, (2) unjust enrichment/c onstructive trust, (3) conversion/replevin, and (4) defamation/intentional interference with employee relationships. Mr. Coker filed an answer and counterclaim. The counterclaim was subseque ntly dismissed, and the matter proceeded to a bench trial. A magistrate of the trial court found that Ms. J ackson was entitled to relief on her claims for fraud, defamation, and constructive trust, and entere d judgment in favor of Ms. Jackson in the amount of $54,500. Mr. Coker filed objections, and the tria l court adopted the magistrate’s decision, in part, and modified it, in part, reducing the judgment to $33,500. Mr. Coker also filed a motion to stay the proceedings and a notice of appeal/motion for

reconsideration in the trial cour t, which were also denied. {¶4} The trial court submitted Mr. Coker’s “notice of appeal,” to this Court and we dismissed it in a journal entry for failure to co mply with App.R. 3(D). (“The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.”). See Jackson v.

Coker , 9th Dist. Summit No. 27017 (Aug. 5, 2013). Mr. C oker then filed two motions to stay the proceedings, and two Civ.R. 60(B) motions for relief from judgment. The trial court denied all

of Mr. Coker’s motions. {¶5} It is from the trial court’s denial of hi s Civ.R. 60(B) motions that Mr. Coker now appeals, raising one assignment of error for our cons ideration.3

II. ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DETERMINING THAT [MR. COKER] DID NOT PROVIDE OPERATIVE FACTS IN HIS 60(B) MOTIONS WARRANTING RELIEF FROM JUDGMENT. {¶6} In his sole assignment of error, Mr. C oker argues that the trial court erred in denying his Civ.R. 60(B) motions because, in hi s first motion, he “clearly alleged [f]raud and newly discovered evidence” and attached the affidavit of Tommy Tanner, a “material witness,” and, in his second motion, he alleged that Mr. Ta nner was unavailable at the time of trial. {¶7} In response, Ms. Jackson argues that Mr . Coker failed to a llege any operative facts regarding: (1) fraud, (2) Mr. Tanner’s unavailability at the time of trial, or (3) what Mr. Tanner’s testimony would reveal about Ms. Jackson’s expenses. {¶8} “The decision to grant or deny a moti on for relief from judgment pursuant to Civ.R. 60(B) lies in the sound discretion of the tr ial court and will not be disturbed absent an

abuse of discretion.” State v. Hulgin , 9th Dist. Summit No. 26719, 2013-Ohio-2794, ¶ 7, citing

Strack v. Pelton , 70 Ohio St.3d 172, 174 (1994). An abuse of discretion indicates that the trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶9} Civ.R. 60(B) allows a court to relieve a party from a final judgment, order, or proceeding under certain circumstances. Su ch circumstances include: “(1) mistake, inadvertence, surprise or excusable neglec t; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial * * *; (3) fraud * * *; (4) the judgment has been satisfied, released or discharged * * *; or (5) any other reason justifying relief from the judgment.” Civ.R. 60(B).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 Elec., Inc. v. ARC Industries, Inc. , 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. “Civ.R. 60(B) relief is improper if any one of the foregoing requirements is not

satisfied.” State ex rel. Richard v. Seidner , 76 Ohio St.3d 149, 151 (1996). Additionally, “if the Civ.R. 60(B) motion contains allegations of op erative facts which would warrant relief from judgment, the trial court should grant a hearing to take evidence to verify those facts before it

rules on the motion.” Id ., citing Kay v. Marc Glassman, Inc. , 76 Ohio St.3d 18 (1996); Coulson

v. Coulson , 5 Ohio St.3d 12, 16 (1983). “Conversely, an evidentiary hearing is not required where the motion and attached evidentiary material do not contain allegations of operative facts which would warrant relief under Civ.R. 60(B).” Seidner at 151, citing S. Ohio Coal Co. v. Kidney , 100 Ohio App.3d 661, 667 (4th Dist.1995). {¶10} “Under the GTE test, we must first determine if [Mr. Coker] had a ‘meritorious defense or claim’ to assert if relief were granted.” Akron Gen. Med. Ctr. v. Med. Mut. of Ohio , 9th Dist. Summit No. 24484, 2009-Ohio-2679, ¶ 8. “A movant should be cautious and hesitate to ‘rely[ ] on filing a motion for relief from judgmen t with little or no fact s and conclusions of

law.’” Id . quoting Adomeit v. Baltimore, 39 Ohio App.2d 97, 103-04 (8th Dist.1974). {¶11} Here, in his first Civ.R. 60(B) moti on, Mr. Coker claimed that Ms. Jackson “committed a fraud on the courts by using fraudulen t checks and receipts” to prove the amount she spent on renovating 161 Lake Street. In suppor t, Mr. Coker attached the affidavit of Mr. Tanner, several pages of Ms. Jackson’s checks written to Mr. Tanner and Andre Jackson, several5

pages of Ms. Jackson’s receipts from Home Depot, pa rts of the transcript from trial, and several pages of product descriptions prin ted from Home Depot’s website. {¶12} Mr. Tanner’s affidavit lists all of the “jobs” he remembered doing for Ms. Jackson at her various properties, including 161 Lake St reet, between April and July of 2011. In his affidavit, Mr. Tanner states that at 161 Lake Stre et, he (1) rewired the basement and first floor, (2) plumbed the entire house, (3) replaced drywa ll and repaired every room, (4) repaired or replaced the windows in most of the house, (5 ) performed miscellaneous carpentry jobs, (6) repaired an old door, (7) installed a new door, (8) re paired the gas line, (9) repaired the roof, (10) installed a sink, and (11) installed a tub surr ound. However, Mr. Tanner’s affidavit does not speak at all to the issue of fraud, and arguably suppor ts the fact that he did substantial work at the 161 Lake Street property. Further, the other attached documents do not demonstrate that Ms.

Jackson committed fraud. {¶13} In his second Civ.R. 60(B) motion, Mr. Coker claimed that Mr. Tanner was unavailable as a witness at the time of trial and that he had information to “rebut and disprove the expenses presented by [Ms. Jackson].” He also claimed that Mr. Tanner had direct evidence proving that Ms. Jackson committed fraud. Mr. Coker did not attach any evidentiary materials to his second motion, nor did he set forth any fact s in support of these allegations. {¶14} In denying Mr. Coker’s Civ.R. 60(B) moti ons without a hearing, the trial court

stated that:

* * * Upon review and consideration, this [c]our t finds that [Mr. Coker] has failed to allege operative facts that warrant relief pursuant to Civ.R. 60(B). [Mr. Coker] alleges that a witness was unavailable at the time of trial, but fails to provide any evidence of the witness being unavailable.6

Furthermore, this [c]ourt has reviewed the entire transcript of the two-part trial of this matter and at no time during the first or second part of this trial was a motion made to reconvene to locate the allege d unavailable witness, [Mr.] Tanner. * * * {¶15} Based upon the record before us, we cannot c onclude that the trial court abused its discretion in denying Mr. Coker’s motions without a hearing. Neither the motions, nor their attachments, if any, demonstrate operative fact s in support of Mr. Coker being entitled to relief from judgment due to fraud or the unavailability of a witness. As such, because no operative facts were presented in support of Mr. Coker’s motions, the trial court did not err in denying them without a hearing. {¶16} Accordingly, Mr. Coker’s assign ment of error is overruled.

III. {¶17} In overruling Mr. Coker’s sole assignment of error, the judgment of the Summit County Court of Common Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is7

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

CARLA MOORE FOR THE COURT

HENSAL, P. J. WHITMORE, J. CONCUR.

APPEARANCES: CHRISTINE D. FINAN, Attorney at Law, for Appellant. DEAN S. HOOVER, Attorney at Law, for Appellee.