[Cite as Figueroa v. Showtime Builders, Inc., 2011-Ohio-2912.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95246

MIGUEL A. FIGUEROA, ET AL.

PLAINTIFFS-APPELLEES 

vs. 

SHOWTIME BUILDERS, INC., ET AL.

DEFENDANTS-APPELLANTS 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-597877 

BEFORE: Celebrezze, J., Kilbane, A.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: June 16, 2011 

ATTORNEY FOR APPELLANTS
David A. Corrado 

Skylight Office Tower 

Suite 410 

1660 West Second Street 

Cleveland, Ohio 44113-1454 

ATTORNEY FOR APPELLEES

Ronald I. Frederick 

Ronald Frederick & Associates Co., L.P.A. 

1370 Ontario Street 

Suite 1240 

Cleveland, Ohio 44113 

FRANK D. CELEBREZZE, JR., J.: 

{¶ 1} Defendants-appellants, Showtime Builders, Inc. and Charles 

Zuchowski (collectively “Showtime”), assert that the trial court improperly 

granted a motion for relief from judgment filed by plaintiffs-appellees, Miguel 

Figueroa and Zulma Sanchez. After a thorough review of the record and law, 

we affirm. 

{¶ 2} On October 20, 2005, Showtime, Figueroa, and Sanchez entered 

into a contract where Showtime agreed to remodel a portion of the couple’s 

home in exchange for $35,000. Figueroa had several issues with the deal, 

including the method of financing, and attempted to cancel the contract; he 
demanded return of the money he had paid in full and in advance. No 

resolution was reached, and appellees filed suit on August 3, 2006. 

{¶ 3} After various pretrials, the parties agreed to arbitrate the 

dispute. On January 10, 2008, the trial court continued the case for 90 days 

to give the parties the opportunity to proceed with arbitration. After this 

time expired, the parties indicated they had only just chosen an arbitrator, 

and on April 11, 2008, the trial court dismissed the case without prejudice 

with the understanding that the parties would proceed to arbitration. This 

entry states, “THE COURT ORDERED THE CASE STAYED FOR NINETY 

DAYS ON 01-18-08 TO ALLOW THE PARTIES TO COMPLETE BINDING 

ARBITRATION AS AGREED UPON. PARTIES HAVE INDICATED THEY 

HAVE RECENTLY CHOSEN AN ARBITRATOR AND WILL PROCEED 

WITH BINDING ARBITRATION. CASE IS THEREFORE DISMISSED 

WITHOUT PREJUDICE PURSUANT TO CIVIL RULE 41(A)(2).” 

{¶ 4} As the one-year anniversary of the dismissal without prejudice 

approached, appellees’ attorney contacted Showtime’s attorney to choose an 

arbitrator and expressed dismay that Showtime was dragging out the 

process. This resulted in an arbitrator finally being chosen. However, soon 

after, Showtime terminated its attorney and retained new counsel. After 

almost a year, appellees again sought to commence arbitration, but on 

December 17, 2009, Showtime’s attorney advised them that Showtime no 
longer wished to proceed with arbitration and that appellees should refile the 

claim. He also noted that because appellees had waited so long, their 

consumer practices claims were barred by the statute of limitations. 

{¶ 5} Appellees then filed a motion for relief from judgment on April 22, 

2010. On May 13, 2010, the trial court granted appellees’ motion and 

ordered the parties to proceed to arbitration. Showtime then timely 

appealed. 

Law and Analysis

{¶ 6} Showtime raises three issues for review: (1) Whether the trial 

court had jurisdiction to rule on a motion for relief from judgment that arose 

from a dismissal without prejudice; (2) whether appellees satisfied the 

requirements under Civ.R. 60(B) entitling them to relief; and (3) whether the 

trial court could order the parties to arbitrate their dispute. 
Dismissal without Prejudice

{¶ 7} Showtime first argues that “[t]he trial court was without 

jurisdiction to rule on appellees’ motion for relief from judgment pursuant to 

60(B) as its unconditional judgment entry dismissing the case without 

prejudice pursuant to Civ.R. 41(A)(2) dismissed the case over two years ago.” 

{¶ 8} Usually, when reviewing the denial of a motion for relief from 

judgment, an appellate court applies an abuse of discretion standard of 

review. Shuford v. Owens, Franklin App. No. 07AP-1068, 2008-Ohio-6220, 

¶15, citing Natl. City Bank v. Rini, 162 Ohio App.3d 662, 2005-Ohio-4041, 834 

N.E.2d 836, ¶15. However, this assumes a trial court has jurisdiction to 

entertain such a motion. Civ.R. 60(B) permits courts to relieve a party only 

from “a final judgment, order or proceeding.” In Hensley v. Henry (1980), 61 

Ohio St.2d 277, 400 N.E.2d 1352, the Ohio Supreme Court recognized that 

unless a “notice of dismissal operates as an adjudication upon the merits 

under Civ.R. 41(A)(1),1 it is not a final judgment, order or proceeding, within 

the meaning of Civ.R. 60(B).” Id. at the syllabus. 

{¶ 9} Here, there is no indication that the dismissal without prejudice 

acted as an adjudication upon the merits. As in Hensley, “[u]nder 

Civ.R.41(A)(1), plaintiff’s notice of dismissal does not operate ‘as an 

adjudication upon the merits’ because plaintiff had not previously ‘dismissed 
in any court, an action based on * * * the same claim,’ and because the notice 

of dismissal did not ‘otherwise’ state that it should so operate.” Id. at 279, 

quoting Civ.R. 41(A)(1)(b). Appellees were free to refile their claim. 

{¶ 10} However, a trial court retains jurisdiction when it dismisses a 

case without prejudice and makes such a dismissal conditional. Klever v. 

City of Stow (1983), 13 Ohio App.3d 1, 468 N.E.2d 58. Showtime’s case was 

also dismissed pursuant to Civ.R. 41(A)(2), which states, “a claim shall not be 

dismissed at the plaintiff’s instance except upon order of the court and upon 

such terms and conditions as the court deems proper.” (Emphasis added.) 

In Berger v. Riddle (Aug. 18, 1994), Cuyahoga App. Nos. 66195 and 66200, 

this court stated, “when an action is dismissed pursuant to a stated condition, 

such as the existence of a settlement agreement, the court retains the 

authority to enforce such an agreement in the event the condition does not 

occur.” Further, “[t]he entering into the settlement agreement constitutes a 

waiver of the defense of lack of jurisdiction and a consent to jurisdiction solely 

for the purpose of enforcement of the settlement agreement in the absence of 

some provision in the agreement itself to the contrary.” Ohio State Tie & 

Timber, Inc. v. Paris Lumber Co. (1982), 8 Ohio App.3d 236, 240, 456 N.E.2d 

1309, overruled on other grounds by Kentucky Oaks Mall Co. v. Mitchell’s 

Formal Wear, Inc. (1990), 53 Ohio St.3d 73, 559 N.E.2d 477. 

 1

 A dismissal by the plaintiff. 
{¶ 11} Here, the parties entered into an agreement to proceed with 

arbitration, which, from the trial court’s perspective, is indistinguishable 

from an agreement to settle. The trial court retained jurisdiction through its 

conditional dismissal entry, and Showtime waived arguing a lack of 

jurisdiction while it unnecessarily prolonged the arbitration process. 

{¶ 12} While a court normally lacks the ability to grant a motion for 

relief from judgment where the action was terminated by a dismissal without 

prejudice, here that dismissal was conditional on an event that did not occur. 

The trial court could then grant appellees relief from that judgment in order 

to enforce the condition. 

Relief Under Civ.R. 60(B)

{¶ 13} Showtime next argues that “[e]ven if the court finds the trial 

court had jurisdiction after the case was voluntarily dismissed, appellees’ 

motion for relief from judgment was fatally flawed as it was untimely and 

failed to establish an entitlement to relief.” 

{¶ 14} We must now analyze the trial court’s decision to determine 

whether it abused its discretion. Shuford, supra. “To prevail on his motion 

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. (1976), 47 Ohio St.2d 146, 150-51, 351 

N.E.2d 113. 

{¶ 15} In order to be afforded relief under Civ.R. 60(B), movants must 

demonstrate that they possess a meritorious claim or defense. This does not 

require a demonstration of absolute victory, only the possibility. See Moore 

v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 67, 479 N.E.2d 

879. Here, appellees set forth evidence purporting to show that Showtime 

violated various consumer protection laws, failed to live up to the terms of a 

home remodeling contract, and that Showtime overcharged appellees. The 

trial court heard this evidence and determined that Showtime had a 

meritorious claim. From the record before us, that determination was not an 

abuse of discretion. 

{¶ 16} Under the next part of the analysis, Showtime must meet one of 

the categories of relief set forth in the rule. The only avenue within Civ.R. 

60(B) left open to appellees given the delay in filing their motion is Civ.R. 

60(B)(5). Appellees assert that Showtime had committed a fraud upon the 

court. This type of fraud “embrace[s] only that type of conduct which defiles 

the court itself, or fraud which is perpetrated by officers of the court so as to 

prevent the judicial system from functioning in the customary manner of 
deciding the cases presented in an impartial manner.” Hartford v. Hartford 

(1977), 53 Ohio App.2d 79, 84, 371 N.E.2d 591, citing, among others, Serzysko 

v. Chase Manhattan Bank (C.A.2, 1972), 461 F.2d 699, certiorari denied 409 

U.S. 883, 93 S.Ct. 173, 34 L.Ed.2d 139. The trial court is in the best 

position to determine this issue, and its determination should be afforded 

proper deference. Id. at 85. 

{¶ 17} While Showtime argues that it had the legal right to withdraw 

consent to arbitration at any time prior to the announcement of a decision by 

the arbitrator,2 it did not have an absolute right to mislead the court into 

believing it held a good-faith intention to proceed with arbitration. Appellees 

put forth evidence of a two-year span of unreturned phone calls, emails, and 

letters. Appellees argue this demonstrates that Showtime and its prior 

counsel acted with an intent to deceive the trial court and evidences that 

Showtime, through counsel, committed a fraud upon the court. The trial 

court could have properly concluded that this demonstrated a deliberate 

tactic on the part of Showtime’s counsel. This is grounds for application 

Civ.R. 60(B)(5) and the “fraud upon the court” doctrine specifically mentioned 

in the Staff Notes to Civ.R. 60(B). There is nothing in the record that 

demonstrates the trial court abused its discretion in so finding. 

 2

 This assertion is based on one line in Buyer’s First Realty, Inc. v. Cleveland Area Bd. of 

Realtors (2000), 139 Ohio App.3d 772, 745 N.E.2d 1069, discussing the history of common law 
{¶ 18} Showtime argues that the trial court did not hold a hearing on 

this motion or that it did not receive proper notice of any hearing. However, 

this is contradicted by the journal entries in this case indicating that a 

hearing was held and that Showtime was present through counsel. While no 

transcript was included in the record, if no hearing was held, as Showtime 

claims, it could have supplemented the record with an App.R. 9(C) statement 

of the evidence establishing this fact. In the absence of such a statement, we 

must conclude that the trial court held a hearing on appellees’ motion. 

{¶ 19} Relief under Civ.R. 60(B)(5) is limited to motions filed within a 

“reasonable time.” Grounds for relief under Civ.R. 60(B)(5) are not limited to 

motions filed within one year of the adverse judgment as are those under 

Civ.R. 60(B)(1) through (3). Therefore, we must determine if the trial court 

abused its discretion in finding that appellees filed their motion in a 

reasonable time. Hartford, supra. 

{¶ 20} Showtime points to the fact that appellees waited two years after 

the dismissal of the case to file their motion and asserts that the motion was 

untimely. However, soon after Showtime made it known that it did not wish 

to proceed with arbitration, appellees filed their motion seeking relief. 

Because the motion was made very soon after appellees learned of Showtime’s 

refusal to arbitrate, it was, therefore, timely filed. 

 

arbitration, but does not address the tactics of delay used in the present case. 
{¶ 21} Accordingly, Showtime’s second assignment of error is overruled. 

Trial Court’s Power to Enforce Agreements

{¶ 22} In Showtime’s final assignment of error, it asserts that “[t]he trial 

court erred in ordering the parties to binding arbitration.” 

{¶ 23} The trial court, through its reserved jurisdiction, enforced the 

agreement of the parties. “Courts are authorized to enforce the terms of 

their judgments through post-judgment proceedings.” Grace v. Howell, 

Montgomery App. No. 20283, 2004-Ohio-4120, ¶11; Civ.R. 70. Here, the trial 

court ordered the parties to abide by their agreement that was evidenced in 

the record.3 The court may enforce such an agreement. See Berger, supra. 

Therefore, the trial court had the ability to enforce the agreement that was 

made before it and evidenced in the record. 

{¶ 24} This last assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellees recover of said 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 

common pleas court to carry this judgment into execution. 

 3

 Attached to the journal entry staying the case pending arbitration is an agreed entry signed 

by both parties stating, “[t]he parties to this action, by and through counsel, have agreed to submit this 
A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

FRANK D. CELEBREZZE, JR., JUDGE 

MARY EILEEN KILBANE, A.J., and 

SEAN C. GALLAGHER, J., CONCUR 

 

dispute to binding arbitration * * *.”