[Cite as McWilliams v. Schumacher, 2013-Ohio-29.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                              Nos. 98188, 98288, 98390, 98423



                         GREGORY D. McWILLIAMS
                                                PLAINTIFF-APPELLANT

                                                    vs.


                    JAMES T. SCHUMACHER, ET AL.
                                                DEFENDANTS-APPELLEES



                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-740108

        BEFORE: Kilbane, J., Stewart, A.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                         January 10, 2013
APPELLANT

Gregory D. McWilliams, pro se
23065 Broadway, Apt. East 39th
Oakwood Village, Ohio 44146

ATTORNEYS FOR APPELLEES

For James T. Schumacher

James T. Schumacher, pro se
James T. Schumacher Co., LLC
1419 West 9th Street, 2nd Floor
Cleveland, Ohio 44113

Gina A. Kuhlman
9 Oakshore Drive
Bratenahl, Ohio 44108

For Caryn M. Groedel

Joseph F. Nicholas, Jr.
Leah J. Stevenson
Mazanec, Raskin, Ryder & Keller Co.
100 Franklin’s Row
34305 Solon Road
Solon, Ohio 44139
MARY EILEEN KILBANE, J.:

       {¶1} In these consolidated appeals, plaintiff-appellant, Gregory D. McWilliams,

appeals from the judgment of the trial court that awarded summary judgment to

defendants-appellees,    Caryn     Groedel    (“Groedel”)   and    James    Schumacher

(“Schumacher”)(collectively referred to as “defendants”). Plaintiff also appeals from the

orders denying his motions for relief from those judgments. For the reasons set forth

below, we affirm all of the challenged rulings.

       {¶2} The record reflects that on June 20, 2007, Groedel, an employment attorney,

agreed to represent plaintiff in connection with employment issues against Marriott

International Inc. (“Marriott”). Groedel filed a complaint against Marriott, which was

designated Case No. CV-648121, and a settlement conference was scheduled on

September 10, 2008. On that date, Groedel, plaintiff, and plaintiff’s witness, Harrison

Dillard (“Dillard”), appeared on behalf of plaintiff, and attorney Nicole Quathamer

(“Quathamer”) appeared on behalf of Marriott. According to plaintiff, Groedel insisted

that he and Dillard sit “behind a wall” while she discussed the matter with Quathamer.

Plaintiff claimed that Marriott offered $35,000 to settle the case. Groedel and plaintiff

subsequently became embroiled in a dispute as to whether Marriott had offered plaintiff

$35,000 or whether she had simply suggested that amount as an opening settlement offer

to Marriott. On December 1, 2008, Groedel filed a motion to withdraw from the matter.
Following a hearing on January 12, 2009, the court permitted Groedel to withdraw, over

plaintiff’s objection.

       {¶3} After Groedel withdrew from the case, plaintiff spoke to attorney Rich

Haber (“Haber”). Haber valued plaintiff’s claim at $7,000. Plaintiff believed that he

had obtained a settlement offer of $35,000 from Marriott and that it had been improperly

taken from him. Plaintiff eventually contacted Schumacher to represent him in his action

against Marriott. After speaking with plaintiff, Schumacher opined that the value of the

case was less than $10,000. Schumacher learned that the discovery cutoff date was

approaching and that Marriott had filed a motion for summary judgment so, on February

27, 2009, and with plaintiff’s consent, he filed a voluntary dismissal of CV-648121

without prejudice.

       {¶4} On October 28, 2010, plaintiff filed this pro se action against Groedel and

Schumacher, setting forth claims for extrinsic fraud, professional misconduct, and racial

discrimination in violation of R.C. 4112.02. On December 13, 2010, Groedel filed a

motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). One week later, plaintiff

filed a motion for a medical continuance, supported by a letter from his doctor that

indicated plaintiff required at least two months to recuperate during medical treatment.

On January 3, 2011, the trial court granted the motion to dismiss in part, and dismissed

plaintiff’s claims for extrinsic fraud and racial discrimination, leaving only the claim for

professional misconduct.1


       1On   January 4, 2011, Schumacher also filed a motion to dismiss all claims of
       {¶5} On May 31, 2011, the trial court granted the plaintiff’s request for a medical

continuance and placed the case on the court’s inactive docket, pending plaintiff’s request

to have the matter reinstated or a showing that “plaintiff is healthy enough to prosecute

the lawsuit.” On June 9, 2011, plaintiff filed a motion for reconsideration of the partial

dismissal of his claims. On September 28, 2011, plaintiff filed a motion to resume the

proceedings.

       {¶6} The trial court resumed the proceedings but did not reconsider its partial

dismissal, and the matter proceeded on the remaining issue of professional misconduct, or

legal malpractice. On November 23, 2011, the trial court issued an order requiring

plaintiff to submit an expert report on the issue of defendants’ liability for legal

malpractice by January 10, 2012, and requiring defendants to submit their expert reports

by March 9, 2012.

       {¶7} On January 31, 2012, Schumacher moved for summary judgment.

Schumacher’s evidence indicated that plaintiff contacted him after the failed settlement

conference involving Groedel, that on February 27, 2009, he dismissed the matter without

prejudice and with plaintiff’s consent in order to preserve plaintiff’s rights, and that

plaintiff had not complied with the trial court’s order that he obtain an expert on the issue

of liability for legal malpractice.

       {¶8} On February 2, 2012, Groedel filed a motion for summary judgment,

supported by her deposition testimony and an affidavit from Quathamer. Groedel’s


the complaint.
evidentiary materials indicated that at no point during the September 10, 2008 settlement

conference, or at any other time, did Marriott offer $35,000 to settle plaintiff’s claims,

including testimony from Quathamer that “Marriott is not even willing to discuss a

settlement anywhere near the $35,000 range.” Groedel also presented evidence that she

and plaintiff discussed requesting $35,000 from Marriott to settle the matter and that in a

letter dated October 22, 2008, she asked plaintiff for permission to settle the matter for

$3,500. A second letter dated October 27, 2008, states in relevant part:

       I am inclined to agree with Ms. Quathamer that a $3,500.00 to $5,000.00
       settlement is more in line with what your case is really worth. That is why
       my last letter asked for your authorization to settle this case for $3,500.00
       rather than $35,000.00 I previously suggested as a possible settlement
       figure.

       {¶9} Finally, Groedel noted that in the instant legal malpractice litigation,

plaintiff had failed to provide an expert report on the issue of liability for legal

malpractice. Further, Groedel averred that she had carefully protected plaintiff’s rights

and did not violate the standard of care in the Marriott matter.

       {¶10} In opposition, plaintiff submitted an affidavit in which he averred that

defendant Groedel made him sit “behind a wall” during the September 10, 2008

settlement conference, that Groedel informed him that she had received a $35,000

settlement offer from Quathamer, and that counsel for Marriott and Groedel subsequently

denied that such offer had been made. Plaintiff also presented an affidavit from his

witness, Dillard, which indicated that “Gregory turned down the $35,000 offer at that

time [i.e., during the settlement conference].”
       {¶11} On March 8, 2012, the trial court granted Schumacher’s motion for

summary judgment, and on March 30, 2012, the court granted Groedel’s motion for

summary judgment and stated:

       Motion for summary judgment * * * is granted for all of the reasons argued

       by the defendant. Additionally, even if the plaintiff was offered $35,000,

       his own witness, Harrison Dillard, confirms that the offer was declined.

       {¶12} On March 15, 2012, plaintiff filed a motion for relief from judgment

pursuant to Civ.R. 60(B), in which he asserted that attorney Schumacher served his

motion for summary judgment to plaintiff’s “old address on Caine Avenue in Cleveland,”

and that plaintiff never received this motion. Plaintiff’s motion for relief from judgment

did not set forth a meritorious defense to Schumacher’s motion for summary judgment,

however. In opposition, Schumacher stated that he served the motion using plaintiff’s

address of record, and also sent the motion to plaintiff via email.

       {¶13} On April 17, 2012, plaintiff filed a motion for relief from judgment pursuant

to Civ.R. 60(A), seeking vacation of summary judgment in favor of attorney Groedel and

requesting that Dillard be permitted to amend his testimony to now indicate that plaintiff

did not reject a settlement offer of $35,000 at the September 10, 2008 settlement

conference.

       {¶14} On April 4, 2012, the trial court denied plaintiff’s motion for relief from

judgment under Civ.R. 60(B), and held:
       The court notes: 1) McWilliams never filed a change of address with the

       clerk of courts; 2) Defendant Groedel’s motion for summary judgment was

       also sent to Caine Avenue, yet the plaintiff received and opposed that

       motion; 3) Schumacher’s motion was emailed to McWilliams; and 4)

       McWilliams has not presented a meritorious defense.

       {¶15} The following month, on May 9, 2012, the trial court denied plaintiff’s

motion for relief from judgment pursuant to Civ.R. 60(A), in which plaintiff requested

that Dillard be permitted to correct the averments in his affidavit.

       {¶16} Plaintiff now appeals and assigns seven errors for our review.         For

convenience, we have grouped the assignments of error together where they share a

common basis in law and in the record.

       {¶17} Plaintiff’s first, second, fifth, and seventh assignments of error are

interrelated and state:


       The trial court erred to the prejudice of Plaintiff-Appellant, Gregory D.
       McWilliams when it granted summary judgment to Defendants-Appellees.

       The trial court abused its discretion when it granted Schumacher summary
       judgment without service on the opposing party, the Plaintiff did not know
       Defendant had even filed for summary judgment.

       The trial court erred to the prejudice of Plaintiff-Appellant, Gregory D.
       McWilliams when it granted summary judgment to Defendant-Appellee,
       Caryn Groedel with the knowledge [that] genuine issues of material fact do
       in fact exist in this case.
       The trial court erred to the prejudice of Plaintiff-Appellant, Gregory D.

       McWilliams when the trial court failed to consider conflicting evidence in

       [the] light most favorable to [the] non-movant.

       {¶18} Within these assignments of error, plaintiff complains that the trial court

erred in awarding summary judgment to defendants because there are genuine issues of

material fact.

       {¶19} A reviewing court reviews an award of summary judgment de novo. Grafton

v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Mitnaul v.

Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002-Ohio-5833, 778 N.E.2d

1093, ¶ 27 (8th Dist.). Therefore, this court applies the same standard as the trial court,

viewing the facts in the case in the light most favorable to the nonmoving party and

resolving any doubt in favor of the nonmoving party. Viock v. Stowe-Woodward Co., 13

Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983).



       {¶20} Pursuant to Civ.R. 56(C), summary judgment is proper if:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears
       from the evidence that reasonable minds can come to but one conclusion,
       and viewing such evidence most strongly in favor of the party against whom
       the motion for summary judgment is made, that conclusion is adverse to
       that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364
       N.E.2d 267 (1977).

       {¶21} Once a moving party satisfies its burden of supporting its motion for

summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), the
nonmoving party must set forth specific facts, demonstrating that a “genuine triable issue”

exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447,

449, 1996-Ohio-211, 663 N.E.2d 639.

      {¶22} With regard to the issue of liability for legal malpractice, we note that it is

well settled in Ohio that in order to prevail on a legal malpractice claim a plaintiff must

demonstrate, through expert testimony, by a preponderance of the evidence, that the

representation of the attorney failed to meet the prevailing standard of care, and that the

failure proximately caused damage or loss to the client. Zafirau v. Yelsky, 8th Dist. No.

89860, 2008-Ohio-1936, ¶ 27. Further, “the Supreme Court made it clear that there must

be a causal connection between the lawyer’s failure to perform and the resulting damage

or loss.” Jarrett v. Forbes, 8th Dist. No. 88867, 2007-Ohio-5072, ¶ 19, explaining

Vahila v. Hall, 77 Ohio St.3d 421, 1997-Ohio-259, 674 N.E.2d 1164.

      {¶23} Expert testimony is required to sustain a claim of legal malpractice, except

where the alleged errors are so simple and obvious that it is not necessary for an expert’s

testimony to demonstrate the breach of the attorney’s standard of care. Hirschberger v.

Silverman, 80 Ohio App.3d 532, 538, 609 N.E.2d 1301 (6th Dist.1992); McInnis v. Hyatt

Legal Clinics, 10 Ohio St.3d 112, 113, 461 N.E.2d 1295 (1984); Rice v. Johnson, 8th

Dist. No. 63648, 1993 Ohio App. LEXIS 4109 (Aug. 26, 1993); Cross-Cireddu v. Rossi,

8th Dist. No. 77268, 2000 Ohio App. LEXIS 5480 (Nov. 22, 2000).

      {¶24} In this matter, appellant complains that his former attorneys breached their

duties to him by excluding him from the settlement negotiations and by handling the
matter in a manner that did not meet professional standards.          This court addressed

identical issues in Rossi. In that case, the trial court determined that the alleged errors,

excluding the plaintiff from the settlement negotiations and allegedly handling the matter

in a manner that did not meet professional standards, had to be established through an

expert’s testimony to demonstrate the breach of the attorney’s standard of care. The trial

court then awarded defendants summary judgment when plaintiff failed to produce the

required expert evidence. This court affirmed the trial court’s decision and stated:

       Like the trial court, we conclude this alleged act of malpractice is not
       obvious. Cross-Cireddu was required to produce expert testimony as to
       whether Rossi did in fact fail to exercise the knowledge, skill, and ability
       ordinarily possessed and exercised by similarly situated members of the
       legal profession in support of her claim. Cross-Cireddu failed to provide
       such expert testimony. We conclude, the trial court properly granted
       Rossi’s motion for summary judgment.

       {¶25} Similarly, in Zafirau, 8th Dist. No. 89860, 2008-Ohio-1936, at ¶ 31-35, the

plaintiff brought suit against his former attorneys when after he rejected a settlement offer

and the attorneys mistakenly advised the trial court that the matter had been settled,

resulting in a dismissal without prejudice. The trial court ruled that the plaintiff could

not establish his complaint for malpractice, and awarded the defendants summary

judgment because the plaintiff failed to provide an expert report to demonstrate that the

attorneys failed to meet their required standard of care. This court affirmed the award of

summary judgment to the defendants and stated:

       We concur with the trial court herein that the alleged acts of malpractice,
       including the actions of Yelsky and Chandra with regard to settlement
       negotiations in the underlying employment discrimination case were
       extensive, protracted, and complex. Whether the actions of Yelsky and
       Chandra in other particulars constituted a breach of standard of care as
       claimed by Zafirau, most certainly required an expert’s testimony as to
       whether in fact appellees failed to exercise the knowledge, skill, and ability
       ordinarily possessed and exercised by members of the legal profession
       similarly situated.

       Zafirau must further show that there is a causal link between the conduct of
       which he complains resulting in actual damage or loss. This court finds
       that not only did Zafirau fail to produce evidence regarding breach of any
       standard of care, he also failed to produce evidence that there was damage
       or resulting loss, and that if there was such damage or loss, that a causal
       connection existed between the alleged failure of Yelsky and Chandra to
       perform and the resulting damage or loss. See Forbes, [8th Dist. No.
       88867, 2007-Ohio-5072].

Id.

       {¶26} Applying the foregoing case law to this matter, we conclude that appellant’s

claims that Groedel breached the standard of care at the settlement conference and in her

representation during settlement negotiations required an expert’s testimony to establish

that defendants failed to exercise the knowledge, skill, and ability ordinarily possessed

and exercised by members of the legal profession. The trial court, therefore, properly

awarded summary judgment to defendants, because appellant failed to present expert

evidence on the issue of liability, in violation of the trial court’s pretrial order, and,

therefore, failed to present a genuine issue of material fact as to whether the actions of the

defendants breached the standard of care.

       {¶27} Further, plaintiff failed to establish the element of damages from his claim

of malpractice at the settlement conference because he rejected the settlement offer, and

the matter was dismissed without prejudice. The trial court, therefore, properly awarded

summary judgment to defendants because plaintiff failed to present a genuine issue of
material fact to show that he sustained damages in the underlying matter. Zafirau at ¶

35; Endicutt v. Johrendt, 10th Dist. No. 99AP-935, 2000 Ohio App. LEXIS 2697 (June

22, 2000).



       {¶28} As explained in Zafirau:

       Further, any purported actions on the part of Yelsky and Chandra cannot
       have a causal effect on the outcome of the pending federal cause one way or
       the other for, as recently stated by this court in Midland Title Sec. Inc. v.
       Carlson, Cuyahoga App. No. 88116, 171 Ohio App. 3d 678,
       2007-Ohio-1980, 872 N.E.2d 968, “[a] dismissal without prejudice relieves
       the court of all jurisdiction over the matter, and the action is treated as
       though it had never been commenced.” Id. at paragraph 9. (Citations
       omitted.)

       In the instant case, because Zafirau voluntarily rejected the District’s
       settlement offer of $338,739, he voluntarily dismissed his motion for relief
       from judgment of the court entry dismissing the action against the District
       without prejudice in Case No. CV-419970, and then refiled his claims with
       present counsel in the case removed to federal court, he was not, and is not
       foreclosed from bringing his claims against the District. Therefore, the trial
       court did not err by granting Yelsky’s and Chandra’s motions for summary
       judgment finding that Zafirau’s malpractice claims failed as a matter of law,
       as he is unable to prove any actual loss or damage. Furthermore, even if he
       was able to do so, he could not prove that any actions of appellees were the
       proximate cause of any perceived loss or damage.

Id. at 34-35.

       {¶29} In accordance with the foregoing, plaintiff was unable to establish that

defendants breached their standard of care or that their actions caused him to sustain

damages, two essential elements of his claim for relief. Therefore, we conclude that the

trial court properly determined that there are no genuine issues of material fact and the

defendants are entitled to judgment as a matter of law.
       {¶30} The first, second, fifth, and seventh assignments of error are without merit.

       {¶31} Appellant’s sixth assignment of error states:

       The trial court erred to the prejudice of plaintiff-appellant Gregory D.

       McWilliams when the trial court did not necessitate 14th Amendment

       Rights the trial court failed to consider conflicting evidence in [the] light

       most favorable to [the] non-movant.

       {¶32} Within this assignment of error, plaintiff asserts that the trial court violated

his right to a jury trial, should have granted him a stay due to his medical condition, and

should have compelled defendant Schumacher to provide discovery.

       {¶33} The determination of whether to issue a stay of proceedings generally rests

within the court’s discretion and will not be disturbed absent a showing of an abuse of

discretion. State ex rel. Verhovec v. Mascio, 81 Ohio St.3d 334, 336, 1998-Ohio-431,

691 N.E.2d 282. An abuse of discretion is more than an error of law or judgment; it

implies that the action of the trial court was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶34} In this matter, we note that plaintiff initially requested a medical

continuance in December 2010. Following this request, on January 3, 2011, the trial

court dismissed plaintiff’s claims for extrinsic fraud and racial discrimination in violation

of R.C. 4112.02 because they did not properly allege claims for relief. On May 31, 2011,

the trial court granted the plaintiff’s request for a medical continuance and placed the case

on the court’s inactive docket, pending plaintiff’s request to have the matter reinstated or
a showing that “plaintiff is healthy enough to prosecute the lawsuit.” On June 9, 2011,

plaintiff filed a motion for reconsideration of the partial dismissal of his claims, and on

September 28, 2011, plaintiff filed a motion to resume the proceedings.

       {¶35} We note that the court’s ruling on the motion was restricted to a review of

the pleadings that plaintiff had filed and did not depend upon further discovery. We

therefore find no abuse of discretion in connection with this ruling. See Grover v.

Bartsch, 170 Ohio App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547 (2d Dist.); Sherrills v.

Ohio Adult Parole Auth., 8th Dist. No. 84522, 2004-Ohio-6916; Stepler v. Ohio Dept. of

Rehab. & Corr., 10th Dist. No. 96APE08-1014, 1997 LEXIS 208 (Jan. 21, 1997).

       {¶36} In addition, the record indicates that plaintiff opposed all motions and

actively prosecuted his claim for relief. He opposed both motions for summary judgment

and also sought to vacate the rulings on those motions. Further, as we have explained in

our discussion of the first, second, fifth, and seventh assignments of error, the trial court

properly determined that there were no genuine issues of material fact and that defendants

are entitled to judgment as a matter of law, the award of summary judgment to defendants

did not violate McWilliams’s right to a jury trial. Goodin v. Columbia Gas of Ohio, Inc.,

141 Ohio App.3d 207, 231, 750 N.E.2d 1122 (4th Dist.2000).

       {¶37} The sixth assignment of error is therefore overruled.

       {¶38} Appellant’s fourth assignment of error states:
       The trial court erred to the prejudice of Plaintiff-Appellant, Gregory D.

       McWilliams when it failed to give fair consideration to the Civ.R. 60(A)

       motion.

       {¶39} In this assignment of error, plaintiff asserts that the trial court erred in

refusing to permit Dillard to “correct what he had omitted” from his affidavit.

       {¶40} Civ.R. 60(A) governs the correction of clerical mistakes and states in

pertinent part:

       Clerical mistakes in judgments, orders or other parts of the record and

       errors therein arising from oversight or omission may be corrected by the

       court at any time on its own initiative or on the motion of any party and

       after such notice, if any, as the court orders. During the pendency of an

       appeal, such mistakes may be so corrected before the appeal is docketed in

       the appellate court, and thereafter while the appeal is pending may be so

       corrected with leave of the appellate court.

       {¶41} Within the context of Civ.R. 60(A), a “clerical mistake” is “a type of

mistake or omission mechanical in nature which is apparent on the record and which does

not involve a legal decision or judgment by an attorney.” Paris v. Georgetown Homes,

Inc., 113 Ohio App.3d 501, 503, 681 N.E.2d 475 (9th Dist.1996), quoting Densely

Internatl., Inc. v. Castaways, 26 Ohio App.3d 116, 118, 498 N.E.2d 1079 (8th Dist.1985).
       {¶42} In this matter, the trial court’s decision awarding summary judgment was

not the result of a “blunder in execution” but, rather, was the result of the court’s

consideration of the requirements of Civ.R. 56 and the parties’ evidentiary materials.

       {¶43} The fourth assignment of error is without merit.

       {¶44} Appellant’s third assignment of error states:

       The trial court erred to the prejudice of Plaintiff-Appellant, Gregory D.

       McWilliams when it failed to give Plaintiff-Appellant an evidentiary

       hearing on a Civ.R. 60(B) motion.

       {¶45} Within this assignment of error, plaintiff complains that the trial court

denied his motion for relief from judgment without holding a hearing on the motion.

       {¶46} Civ.R. 60(B) governs motions for relief from judgment and provides in 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 proceeding 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; (4) the judgment has been
       satisfied, released or discharged, or a prior judgment upon which it is based
       has been reversed or otherwise vacated, or it is no longer equitable that the
       judgment should have prospective application; or (5) any other reason
       justifying relief from the judgment.

       {¶47} To prevail on a Civ.R. 60(B) motion, 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 Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d

113 (1976), paragraph two of the syllabus.    The moving party fails the GTE test by not

meeting any one of the three requirements. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d

17, 20, 520 N.E.2d 564 (1988).

       {¶48} A party who files a Civ.R. 60(B) motion for relief from judgment is not

automatically entitled to a hearing on the motion. Instead, the movant bears the burden

to demonstrate that he or she is entitled to a hearing on the motion. Id. To warrant a

hearing on a Civ.R. 60(B) motion, the movant must allege operative facts that would

warrant relief under Civ.R. 60(B). Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 19,

1996-Ohio-430, 665 N.E.2d 1102.       A movant is not required to submit evidentiary

material in support of the motion, but a movant must do more than make bare allegations

of entitlement to relief. Id.

       {¶49} As to the issue of defendant Schumacher’s service of his motion for

summary judgment, we note that a trial court’s determination of whether service was

completed will not be disturbed absent an abuse of discretion. Ramirez v. Shagawat, 8th

Dist. No. 85148, 2005-Ohio-3159.        Where a party follows the Ohio Civil Rules

governing service of process, courts presume that service is proper unless the other party

rebuts this presumption with sufficient evidence of non-service. Rafalski v. Oates, 17

Ohio App.3d 65, 66, 477 N.E.2d 1212 (8th Dist.1984); Cent. Ohio Sheet Metal, Inc. v.

Walker, 10th Dist. No. 03AP-951, 2004-Ohio-2816, ¶ 10 (“The rebuttable presumption of
proper service * * * may be rebutted by evidence that [the defendant] never resided nor

received mail at the address to which such ordinary mail service was addressed.”).

       {¶50} In PFG Ventures, L.P. v. King, 8th Dist. No. 95352, 2011-Ohio-1248, ¶ 4,

this court stated:

       [T]he motion for summary judgment contained a certificate of service as
       required by Civ.R. 5(D) and there is no evidence that the motion had been
       returned indicating failure of delivery, so there is a rebuttable presumption
       of proper service. Id., citing Winthrop v. Harden, 8th Dist. No. 79803,
       2002-Ohio-5217, ¶ 21.

       {¶51} In order to rebut the presumption of proper service, the other party must

produce evidentiary-quality information demonstrating that he or she did not receive

service. Thompson v. Bayer, 5th Dist. No. 2011-CA-00007, 2011-Ohio-5897, ¶ 23.

       {¶52} In this matter, Schumacher’s motion for summary judgment contained a

certificate of service as required by Civ.R. 5(D). There is no evidence in the record that

the motion had been returned to Schumacher indicating failure of delivery. Accordingly,

there is a rebuttable presumption of proper service.       PFG Ventures, L.P. v. King;

Winthrop v. Harden; Edney v. Life Ambulance Serv., Inc., 10th Dist. No. 11AP-1090,

2012-Ohio-4305.      The plaintiff did not rebut this presumption by producing

evidentiary-quality information to demonstrate that he did not receive service of the

motion.

       {¶53} In any event, even assuming that plaintiff was not served with Schumacher’s

motion for summary judgment, he nonetheless failed to demonstrate that he has a

meritorious defense to this motion as required under Civ.R. 60(B). Therefore, we are
unable to conclude that the trial court erred in denying plaintiff’s Civ.R. 60(B) motion for

relief from judgment.

       {¶54} The third assignment of error is without merit.

       {¶55} The orders of the trial court granting summary judgment to defendant

Groedel and defendant Schumacher are affirmed.

       {¶56} The order denying relief from judgment pursuant to Civ.R. 60(A) is

affirmed.

       {¶57} The order denying relief from judgment pursuant to Civ.R. 60(B) is

affirmed.

       Costs for this appeal are waived. Appellant filed a poverty affidavit.

       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.




MARY EILEEN KILBANE, JUDGE

MELODY J. STEWART, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
