[Cite as Eubank v. Mardoian, 2012-Ohio-1260.]


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

JAMES R. EUBANK                                      C.A. No.       11CA009968

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ELLEN L. MARDOIAN                                    COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellee                                     CASE No.   08CV157974

                               DECISION AND JOURNAL ENTRY

Dated: March 26, 2012



        MOORE, Judge.

        {¶1}    Appellant, James R. Eubank, appeals from the judgment of the Lorain County

Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}    We considered this case in a prior appeal and summarized the facts as follows:

        On August 5, 2008, Eubank filed a complaint against Mardoian and the estates of
        his parents, Russell and Edna Eubank (collectively “Mardoian”). Although he
        does not label his claims, he appears to have alleged elements of conversion,
        fraud, and/or breach of contract. Moreover, he speaks of embezzlement in
        subsequent filings with the court. Mardoian moved for leave to plead, and the
        trial court granted an extension until February 9, 2009. On January 12, 2009,
        Eubank filed a motion for default judgment which the trial court denied because it
        had granted Mardoian an extension of time in which to answer or otherwise file a
        responsive pleading.

        On February 6, 2009, Eubank filed an amended complaint. On February 9, 2009,
        Mardoian filed a motion to dismiss the original complaint for failure to state a
        claim pursuant to Civ.R. 12(B)(6) and for lack of jurisdiction pursuant to Civ.R.
        12(B)(1), or in the alternative, a motion for a more definite statement. Eubank
        filed a memorandum in opposition to the motion to dismiss, in part arguing that
        Mardoian did not respond to the amended complaint.
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          On March 4, 2009, Eubank filed a motion for summary judgment. On March 6,
          2009, Mardoian filed a motion for leave to file an amended motion to dismiss
          instanter. She appended the affidavit of her attorney who averred that the
          defendants had not been served with the amended complaint and that counsel only
          obtained a copy of the amended complaint from the clerk’s office. The trial court
          granted Mardoian leave to file the amended motion to dismiss.

          The trial court directed Mardoian to respond to Eubank’s motion for summary
          judgment by March 25, 2009. Mardoian moved to extend time in which to
          respond until after the completion of discovery. The trial court granted the
          motion for extension of time.

          On April 6, 2009, the trial court issued a journal entry granting Mardoian’s
          amended motion to dismiss for failure to state a claim pursuant to Civ.R.
          12(B)(6). The trial court further concluded that Eubank’s pending motions were,
          therefore, rendered moot.

Eubank v. Mardoian, 9th Dist. No. 09CA009575, 2010-Ohio-401, ¶ 2-6. On appeal, this Court

affirmed the trial court’s decision to grant the motion to dismiss for failure to state a claim

pursuant to Civ.R. 12(B)(6). Id. at ¶ 12.

          {¶3}   On February 11, 2011, Eubank filed a motion for relief from judgment due to

fraud on the court pursuant to Civ.R. 60(B)(5). The motion requested an evidentiary hearing.

On February 15, 2011, the trial court denied the motion.

          {¶4}   Eubank timely filed a notice of appeal. He raises two assignments of error for our

review.

                                                 II.

                                  ASSIGNMENT OF ERROR I

          THE LOWER COURT ABUSED ITS DISCRETION WHEN IT DENIED
          [EUBANK’S] MOTION FOR RELIEF FROM JUDGMENT AND THE
          DENIAL BY THE LOWER COURT WAS UNREASONABLE, ARBITRARY,
          AND UNCONSCIENABLE [SIC].

                                  ASSIGNMENT OF ERROR II

          THE LOWER COURT ERRED AND ABUSED ITS DISCRETION BY
          DENYING [EUBANK’S] MOTION FOR RELIEF FROM JUDGMENT
          PURSUANT TO CIV.R. 60(B)(5), HAVING EVIDENCE THAT [] ELLEN L.
                                                 3


       MARDOIAN COMMITTED FRAUD ON THE TRIAL COURT AND
       DEFRAUDED [EUBANK] FROM THE PROCEEDS OF THE SALE OF HIS
       HOUSE.

       {¶5}    In his first and second assignments of error, Eubank argues that the trial court

erred in denying his motion for relief from judgment pursuant to Civ.R. 60(B)(5). He further

argues that the trial court erred by not granting an evidentiary hearing. We do not agree.

       {¶6}    Civ.R. 60(B) provides:

       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. 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.

       {¶7}    To prevail on a motion for relief from judgment under Civ.R. 60(B), a party must

demonstrate: (1) a meritorious defense or claim; (2) entitlement to relief under one of the

grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness of the motion. GTE Automatic

Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. If

any of these three requirements is not met, the motion is properly overruled. Strack v. Pelton, 70

Ohio St.3d 172, 174 (1994).

       {¶8}    The question of whether such relief should be granted is within the sound

discretion of the trial court. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987). This Court, therefore,

will not reverse the trial court’s decision absent an abuse of discretion. Kay v. Marc Glassman,

Inc., 76 Ohio St.3d 18, 19-20 (1996). The phrase “‘abuse of discretion’ * * * implies that the

trial court’s attitude [was] unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,
                                                4


5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may

not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d

619, 621 (1993).

       {¶9}    Initially, we note that Eubank filed his motion for relief from judgment nearly two

years after the original judgment. Civ.R. 60(B) requires motions to be made within a reasonable

time. Within the context of reasonable filing, the rule further explicitly restricts motions under

reasons (1), (2) and (3) to be filed not more than a year after the judgment or order. Eubank

specifically argued that he was entitled to relief pursuant to Civ.R. 60(B)(5), which only required

him to demonstrate that his motion was made within a reasonable time. Although the issue of

“[w]hat constitutes ‘reasonable time’ for filing the motion under Civ.R. 60(B) depends upon the

facts of the case,” Stickler v. Ed Breuer Co., 8th Dist. Nos. 75126, 75129, and 75206, 2000 WL

218380, *3 (Feb. 24, 2000), “[a] movant must offer some operative facts or evidential material

demonstrating the timeliness of his or her motion.” In re Guardianship of Brunstetter, 11th Dist.

No. 2002-T-0008, 2002-Ohio-6940, at ¶ 14, citing Shell v. Cryer, 11th Dist. No. 2001-L-083,

2002-Ohio-848. Eubank offers no reason why it took him almost two years to seek relief from

the judgment. We conclude, under these circumstances, that he failed to file his motion within a

reasonable time.

       {¶10} Moreover, even if Eubank’s motion had been made within a reasonable time, he

failed to demonstrate that he has a meritorious claim to present if relief were granted. In his

Civ.R. 60(B) motion, he argued that Mardoian committed a “fraud upon the court” when she

“perjured” and gave “fraudulent information” to the court in her prior affidavit. However,

Eubank does not allege facts which constitute a fraud upon the court warranting consideration

under Civ.R. 60(B)(5). See, e.g., Turoczy v. Turoczy, 30 Ohio App.3d 116 (1986). “Where the
                                                 5


motion involves a misrepresentation made by an adverse party, it is properly brought pursuant to

Civ.R. 60(B)(3). * * * Where the motion involves a misrepresentation made by an officer of the

court, e.g., an attorney, which misrepresentation perpetrates a fraud upon the court, the motion is

properly brought pursuant to Civ.R. 60(B)(5).” Zaubi v. Caluya, 8th Dist. No. 61308, 1991 WL

205417 (Oct. 10, 1991), citing Staff Notes to Civ.R. 60(B) and Coulson v. Coulson, 5 Ohio St.3d

12, 15 (1983). Eubank’s motion argued a misrepresentation by Mardoian, the adverse party, and

should have been brought pursuant to Civ.R. 60(B)(3). “A party cannot convert a Civ.R.

60(B)(3) motion into a Civ.R. 60(B)(5) motion merely by characterizing conduct as fraud upon

the court. CIT Fin. Serv., Inc. v. Lazzano, 8th Dist. No. 47401, 1984 WL 5461 (Apr. 12, 1984).

Additionally, Civ.R. 60(B)(5) will apply only when one of the specific provisions enumerated in

Civ.R. 60(B)(1)-(4) does not apply. Strack, supra, 70 Ohio St.3d at 174.” Lewis v. Blair, 110

Ohio App.3d 342, 346-57 (9th Dist.1996). In the case at hand, Civ.R. 60(B)(3) is applicable.

       {¶11} Even assuming that Eubank alleged facts necessary to bring his motion within the

“catch all” provision of Civ.R. 60(B)(5), it would not be an abuse of the trial court’s discretion to

deny the motion.     This Court previously affirmed the trial court’s decision that dismissed

Eubank’s complaint for failure to state a claim. In his motion for relief from judgment, Eubank

seeks to introduce an affidavit to bolster the allegations that he previously asserted. He has,

however, failed to overcome the fatal deficiencies in his amended complaint and fails to

demonstrate that he has a meritorious claim to present if relief were granted.

       {¶12} It is a fundamental legal principle that there should be finality in every case, and

that once judgment is entered it should be disturbed only under the proper circumstances.

Adomeit v. Baltimore, 39 Ohio App.2d 97, 100 (1974). The instant case does not present the
                                                 6


proper circumstances. Accordingly, it was not an abuse of discretion for the trial court to deny

the motion for relief from judgment.

       {¶13} Furthermore, the trial court did not err in refusing to grant a hearing on the

motion. “[A] movant has no automatic right to a hearing on a motion for relief from judgment.”

Hrabak v. Collins, 108 Ohio App.3d 117, 121 (8th Dist.1995). As discussed in our analysis

above, Eubank’s Civ.R. 60(B) motion failed to include allegations of operative facts to satisfy

the three prongs from GTE Automatic Elec., Inc. Therefore it was not an abuse of discretion for

the trial court to overrule the Civ.R. 60(B) motion without first holding an evidentiary hearing.

       {¶14} Accordingly, Eubank’s assignments of error are overruled.

                                                III.

       {¶15} Eubank’s assignments of error are overruled. The judgment of the Lorain 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 Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document 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 is
                                                7


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



CARR, P. J.
WHITMORE, J.
CONCUR


APPEARANCES:

JAMES R. EUBANK, pro se, Appellant.

MATTHEW G. BURG, Attorney at Law, for Appellee.
