[Cite as Petracca & Luisi v. Rosen, 2014-Ohio-3313.]


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

PETRACCA & LUISI, AN OHIO                                   C.A. No.   27220
PARTNERSHIP

        Appellee
                                                            APPEAL FROM JUDGMENT
        v.                                                  ENTERED IN THE
                                                            COURT OF COMMON PLEAS
HST EQUITY CORP., et al.                                    COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV 2010-04-2814
        Appellant

                                 DECISION AND JOURNAL ENTRY

Dated: July 30, 2014



        HENSAL, Judge.

        {¶1}    Michael Rosen appeals a judgment of the Summit County Court of Common

Pleas. For the following reasons, this Court affirms.

                                                       I.

        {¶2}    In April 2010, Lucy Luisi brought a forcible entry and detainer action against

HST Equity Corp. and Michael Rosen, alleging they had breached rental agreements for several

commercial properties. Over the following 20 months, the complaint was amended several times

to add or substitute parties and claims. In the fourth amended complaint, Petracca & Luisi, an

Ohio Partnership, sued HST, Mr. Rosen, and Highway Safety & Technology Corp. for breach of

rental agreement and unjust enrichment.            The defendants counterclaimed, alleging that the

partnership failed to disclose or remediate black mold that was at one of the properties.

        {¶3}    The trial court resolved some of the parties’ claims on summary judgment and set

the remainder for trial. On the day of trial, the parties reached a settlement agreement in which
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Mr. Rosen agreed to have a judgment entered against him for $20,000 and Petracca & Luisi

agreed not to execute on the judgment if Mr. Rosen made three installment payments of $5,000.

Subsequently, on November 26, 2012, the parties and trial court signed an “Agreed Judgment

Entry” and “Stipulation of Dismissal with Prejudice.”

       {¶4}      In November 2013, Mr. Rosen moved to vacate the judgment under Civil Rule

60(B), alleging that he had discovered new evidence that was not available at trial. He also

alleged that Petracca & Luisi had failed to give him proper notice under the rental agreements.

In his memorandum in support of his motion, Mr. Rosen argued that Lucy Luisi had never been

properly added as a partner of Petracca & Luisi and that Michael Luisi had not been authorized

to enter into a leasing agreement on behalf of the partnership. He further argued that Mr. Luisi

had engaged in the unauthorized practice of law.

       {¶5}      Petracca & Luisi opposed the motion to vacate, arguing (1) that a Rule 60(B)

motion was not the proper vehicle to challenge the settlement agreement and (2) that Mr. Rosen

failed to satisfy the requirements of the rule. The trial court agreed, concluding that “Rosen’s

Civ.R. 60(B) Motion is not the proper vehicle to rescind the settlement agreement and dismissal

order.” “Alternatively, [he] has not complied with, at a minimum, the third prong of the GTE

Automatic Elec., Inc. test [for Rule 60(B) motions] outlined above.” It, therefore, denied his

motion. Mr. Rosen has appealed, assigning six errors, which this Court has combined for ease of

consideration.

                                               II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING APPELLANTS (SIC)
       UNOPPOSED 60(B) MOTION AND ABUSED ITS DISCRETION WHEN IT
       DISMISSED THE MOTION FOR RELIEF WITHOUT SO MUCH AS A
       MINIMAL EVIDENTIARY HEARING AS SUFFICIENT FACTS WERE
                             3


PRESENTED TO THE COURT IN AND WITH THE PLEADING SO AS TO
MERIT AN EVIDENTIARY HEARING.

                  ASSIGNMENT OF ERROR II

THE TRIAL COURT FAILED TO APPLY THE CLEAR AND CONVINCING
EVIDENCE STANDARD.

                  ASSIGNMENT OF ERROR III

THE COURT ERRED IN NOT CONSTRUING THE EVIDENTIARY
DOCUMENTS AND INFORMATION IN THE 60(B) MOTION AS NEWLY
DISCOVERED EVIDENCE WHICH DISCLOSES A STRONG PROBABILITY
THAT IT WOULD CHANGE THE RESULTS IF A NEW TRIAL WERE
GRANTED, THAT IT HAD BEEN DISCOVERED SINCE THE TRIAL, IT IS
SUCH AS COULD NOT IN THE EXERCISE OF DUE DILIGENCE HAVE
BEEN DISCOVERED BY APPELLANT BEFORE TRIAL, IT IS MATERIAL
TO THE ISSUES AND IS NOT MERELY CUMULATIVE TO FORMER
EVIDENCE, AND DOES NOT MERELY IMPEACH OR CONTRADICT ANY
FORMER EVIDENCE.

                 ASSIGNMENT OF ERROR IV

THE COURT ERRED IN DENYING APPELLANTS (SIC) MOTION BASED
UPON THE FACT THE JUDGMENT WAS NOT EQUITABLE IN LIGHT OF
THE FACT THAT A NON-PARTY TO THE ACTION EXECUTED A
SETTLEMENT AGREEMENT THAT WAS ALLEGEDLY BETWEEN THE
PARTIES TO THE SUIT.

                  ASSIGNMENT OF ERROR V

THE COURT ERRED IN THEIR DISMISSAL FAILING TO APPLY THE
PREPONDERANCE OF EVIDENCE STANDARD AND CONSIDER
APPELLEES (SIC) LACK OF OPPOSITION AS TO THE GENERAL RULE
THAT FAILURE TO PRODUCE EVIDENCE WITHIN A PARTY’S
CONTROL RAISES A PRESUMPTION THAT IF PRODUCED WOULD
OPERATE AGAINST THAT PARTY.

                 ASSIGNMENT OF ERROR VI

THE COURT ERRED IN ASSUMING APPELLANTS (SIC) 60(B) MOTION
WAS MEANT FOR THE PURPOSE OF RECISSION OF THE AGREEMENT
WHEN IT WAS CONCISELY MEANT FOR AND PLEAD JUDICIAL RELIEF
FROM JUDGMENT GRANTED UPON FRAUD.
                                                4


         {¶6}   The trial court gave two, alternate, reasons for denying Mr. Rosen’s motion under

Civil Rule 60(B). First, it found that a motion under Rule 60(B) was not the proper vehicle to set

aside the settlement agreement and dismissal order. Second, it concluded that Mr. Rosen had

failed to comply with all three parts of the GTE Automatic test. See GTE Automatic Elec., Inc. v.

ARC Indus., Inc., 47 Ohio St.2d 146, 150 (1976) (“To prevail on [a] 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 * * *.”).

         {¶7}   In his assignments of error, Mr. Rosen presents several arguments for why his

Rule 60(B) motion met the rule’s requirements.        None of his assignments of error or his

arguments in support of them, however, address the first ground that the trial court gave for

denying his motion, which was that a Rule 60(B) motion was not the proper vehicle for

challenging the settlement agreement and related dismissal order. Each of the trial court’s

reasons for denying the Rule 60(B) motion was, in and of itself, sufficient grounds to support the

court’s judgment. Because Mr. Rosen has only contested one of those grounds, we note that,

even if we agreed with Mr. Rosen that he established each prong of the GTE Automatic test, we

still could not reverse the trial court’s judgment because he has not demonstrated that the court’s

other ground is invalid. See Sellers v. Akron, 9th Dist. Summit No. 23098, 2006-Ohio-3110, ¶ 4

(“Even if we were to find that Appellant’s assignment of error had merit, the trial court’s second,

alternative reason for granting summary judgment would stand.”). Accordingly, any error that

the trial court made with respect to the applying the GTE Automatic test was, at most, harmless

error.
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       {¶8}    Regarding Mr. Rosen’s argument that the trial court should have held a hearing

before disposing of his motion, the Ohio Supreme Court has determined that a trial court should

grant a hearing on a Rule 60(B) motion “if the * * * motion contains allegations of operative

facts which would warrant relief from judgment[.]” State ex rel. Richard v. Seidner, 76 Ohio

St.3d 149, 151 (1996). In light of the fact that the trial court determined that Rule 60(B) was not

the proper vehicle for Mr. Rosen to seek redress, we conclude that it did not err when it decided

his motion without holding a hearing. Mr. Rosen’s assignments of error are overruled.

                                                III.

       {¶9}    Mr. Rosen has not challenged the trial court’s conclusion that Rule 60(B) is not

the correct vehicle to undo the parties’ settlement agreement. 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 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

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.
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      Costs taxed to Appellant.




                                                   JENNIFER HENSAL
                                                   FOR THE COURT



WHITMORE, J.
CONCUR.

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY


APPEARANCES:

MICHAEL ROSEN, pro se, Appellant.

JOHN F. HILL, Attorney at Law, for Appellee.
