[Cite as Hamlin v. Kirby, 2015-Ohio-4994.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     LAWRENCE COUNTY

Robert Hamlin, Jr.,                             :           Case No. 15CA7

        Plaintiff-Appellee,                     :

        v.                                      :           DECISION AND
                                                            JUDGMENT ENTRY
David Kirby,                                    :

                                                :           RELEASED: 11/30/2015
        Defendant-Appellant.
                                                :


                                             APPEARANCES:

Warren N. Morford, Jr., Ironton, Ohio, for Appellant.

Donald R. Capper, Proctorville, Ohio, for Appellee.

Harsha, J.
        {¶1}    David Kirby appeals from the denial of his motion for relief from judgment

under Civ.R. 60(B). Kirby claims that the trial court erred because the record shows that

Robert Hamlin, Jr. made several misrepresentations of fact at the damages hearing and

obtained a judgment by fraud or misrepresentation. Kirby argues that there were a

number of factual discrepancies between Hamlin’s testimony and his medical records

and that it was actually Hamlin’s father who suffered the injuries, not Hamlin. Kirby also

argues that Hamlin lied about whether he was employed at the time of the injury and

whether he had a prior back injury. As a result Kirby claims that he should have been

granted relief from judgment.

        {¶2}    However, the trial court did not abuse its discretion in denying Kirby’s

motion. Kirby did not provide sufficient evidence to establish the operative facts of fraud,
Lawrence App. No. 15CA7                                                                 2


which must be shown by clear and convincing evidence. The only evidence he

presented to support his fraud allegations were Hamlin’s own Emergency Medical

Service (EMS) report, which substantiated Hamlin’s damages claims, and an unsworn

investigative report that contained two levels of hearsay. Because Kirby failed to show

that he was entitled to relief from judgment under Civ. R. 60(B), we affirm the trial

court’s decision denying his motion.

                                         I. FACTS

       {¶3}   Hamlin filed an action against Kirby for damages from injuries Hamlin

sustained when the porch of an apartment building Kirby owned collapsed. Kirby was

the owner-landlord and Hamlin was a guest of several of the tenants. Kirby failed to

answer the complaint and, approximately one year later, the trial court granted a default

judgment on liability against him. In June 2014 the trial court held the damages hearing,

which Kirby attended and admitted that he had received the complaint and had

contacted an attorney. Kirby claimed to have heard nothing more about the matter until

he received a notice on the damages hearing. He acknowledged that he received three

different notices concerning the damages hearing, but that he did not attempt to contact

an attorney until about three days before the hearing. Kirby asked for, but did not

receive, a continuance of the damages hearing.

       {¶4}   Hamlin testified that he was visiting his mother at the apartment building

Kirby owned and was sitting on a chair on the back porch when the porch floor

collapsed and he fell approximately six feet into the porch. Hamlin submitted

photographs of the collapsed floor and testified that he suffered back injuries as a result

of the fall. Hamlin testified that he incurred medical bills totaling $20,109.85, suffered
Lawrence App. No. 15CA7                                                               3


lost wages of $30,000, and requested $50,000 for pain and suffering. Kirby cross-

examined Hamlin, arguing that it was Hamlin’s father, not Hamlin who suffered the fall

and injuries. The trial court awarded Hamlin $20,109.85 in medical expenses, $25,000

in lost wages, and $45,000 for pain and suffering, for a total damage award of

$90,109.85.

       {¶5}   Seven months after the damage award, Kirby filed a motion for relief from

judgment under Civ.R. 60(B) on the ground that Hamlin made several

misrepresentations of fact at the damages hearing. Kirby argued that Hamlin obtained

a judgment based upon misrepresentation and fraud through false testimony. One of

the alleged misrepresentations concerned whether Hamlin was helped up out of the

porch hole by the EMS personnel or whether Hamlin’s family members helped him up.

Hamlin testified that he was helped out of the porch hole by the EMS, but Kirby argued

that an EMS report states that Hamlin was lying flat on the kitchen floor when the EMS

arrived. Therefore, Kirby argued that there was a discrepancy about how Hamlin got out

of the hole and the only logical conclusion was that Hamlin was not badly injured

because he was able to climb out of the hole and move to the kitchen floor without any

assistance.

       {¶6}   A second alleged misrepresentation concerned Hamlin’s employment

status at the time of the fall. Hamlin testified that when he fell on June 5, 2012, he was

employed by Thompson Towing, but was unable to return to work due to injuries from

the fall. Kirby claimed that he had hired a private investigator to contact Thompson

Towing three years later in January 2015. According to the investigative report the

owner confirmed that Hamlin had worked for Thompson Towing as a tow truck driver.
Lawrence App. No. 15CA7                                                                 4


Hamlin’s personnel file indicated he started work on May 4, 2012, approximately four

weeks before the accident. No termination date was given in the file, however the

employer stated that Hamlin was not terminated and had not officially resigned, but had

“just stopped coming to work.” The owner said Hamlin worked “for a couple of weeks.”

Kirby argued a discrepancy existed about Hamlin’s employment status at the time of the

fall. Hamlin’s testimony was that he had been working for Thompson Towing in June

2012, which would have been for at least four weeks, while the owner’s recollection

three years later was that Hamlin had worked there from May 2012 for “a couple of

weeks.” Kirby argues that a couple of weeks means two weeks and thus Hamlin was

not employed by Thompson Towing and had misrepresented his employment status to

the court.

       {¶7}   Kirby also argued that Hamlin made no attempt to mitigate his damages;

that it was actually Hamlin’s father who fell into porch instead of Hamlin; and that Kirby

saw Hamlin wearing a back brace before the fall and therefore was lying about whether

he had any prior back injury.

       {¶8}   Hamlin opposed the motion on the ground that it was untimely. Hamlin

argued the Kirby admitted he received a copy of the complaint, was aware as early as

March 2014 that a judgment on liability was issued, and knew a judgment awarding

damages was rendered in June 2014. Hamlin argued that nonetheless, Kirby essentially

ignored the judicial process until Hamlin took steps to attach a lien on Kirby’s real

property in November 2014. Only then did Kirby retain counsel who requested a

hearing in December 2014 and made a motion under Civ.R. 60(B) in January 2015,
Lawrence App. No. 15CA7                                                                 5

seven months after the judgment was rendered. Hamlin cited to State Farm Mut. Auto.

Ins. Co. v. Garreffa, 4th Dist. Washington App. No. 04CA3, 2004-Ohio-3394 in support.

       {¶9}   In response Kirby filed a supplemental memorandum in which he claimed

that during the time Hamlin stated he was unable to work, he committed a number of

criminal offenses.

       {¶10} The trial court held a hearing on Kirby’s motion and denied it on the

grounds that Kirby failed to present an affidavit or other admissible evidence to support

the misrepresentation and fraud allegations presented by counsel. The trial court also

found that Kirby failed to show that the judgment was entered by “mistake,

inadvertence, surprise or excusable neglect” or give any justification why Kirby’s

allegations could not have been discovered “by due diligence” during the 21 months of

litigation. Additionally, the trial court found that Kirby was present at the damages

hearing with ample opportunity to participate yet did not present evidence contrary to

Hamlin’s claims. Finally, the trial court held that there was no evidence presented that

the judgment had been satisfied or any other reason justifying relief under Civ.R.

60(B)(4) & (5). Kirby appealed.

                                  II. ASSIGNMENTS OF ERROR

       {¶11} Kirby presents two assignments of error for our review:

       I.     The trial court abused its discretion in denying defendant/appellant’s
              timely Motion for Relief from Judgment under Civ. Rule 60(b), when the
              record clearly demonstrates that the money judgment obtained by
              plaintiff/appellee was obtained by fraud, and without any proof of damages
              in the record.

       II.    The trial court committed prejudicial, reversible error in failing to grant
              defendant/appellant’s Motion for Relief from Judgment under Civ. Rule
              60(b).
Lawrence App. No. 15CA7                                                                 6


                    III.   MOTION FOR RELIEF FROM JUDGMENT

       {¶12} Kirby claims that the trial court erred when it denied his motion for relief

from judgment because he is entitled to relief under the ground that Hamlin committed

fraud by presenting false testimony. He further claims that he can show that it was

Hamlin’s father, not Hamlin who fell through the porch hole of Kirby’s apartment

building.

                                     A. Standard of Review

       {¶13} “ ‘In an appeal from a Civ.R. 60(B) determination, a reviewing court must

determine whether the trial court abused its discretion.’ ” Harris v. Anderson, 109 Ohio

St.3d 101, 2006–Ohio–1934, 846 N.E.2d 43, ¶ 7, quoting State ex rel. Russo v. Deters,

80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997). An abuse of discretion occurs when a

decision is unreasonable, arbitrary, or unconscionable. State ex rel. Tindira v. Ohio

Police & Fire Pension, 130 Ohio St.3d 62, 2011–Ohio–4677, 955 N.E.2d 963, ¶ 28.

       {¶14} “In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the

movant must establish 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.’ ” Deters at 153–154, quoting

GTE Automatic Elec., Inc., v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113

(1976), paragraph two of the syllabus. In order to obtain relief, the movant must satisfy

all three requirements. See, Deters at 154, citing State ex rel. Richard v. Seidner, 76

Ohio St.3d 149, 151, 666 N.E.2d 1134 (1996).
Lawrence App. No. 15CA7                                                                7


                    B. Fraud or Misrepresentation by the Adverse Party

       {¶15} Kirby argues that the trial court abused its discretion in denying his motion

because he clearly demonstrated that Hamlin obtained his judgment by fraud and

without any proof of damages.

       {¶16} A movant must provide evidentiary material supporting the allegations that

would warrant relief under Civ.R. 60(B). Spaulding-Buescher v. Skaggs Masonry, Inc.,

4th Dist. Hocking App. No. 08CA1, 2008-Ohio-6272, ¶ 14 (“[a] movant must demonstrate

the satisfaction of these requirements by asserting operative facts in evidentiary

materials of the nature contemplated by Civ.R. 56(C)”); Angel v. Angel, 4th Dist. Scioto

App. No. 92CA2071, 1993 WL 49456 (Feb. 18, 1993) (operative facts must be

supported by evidence similar in quality to “affidavits, depositions, answers to

interrogatories, written admissions or written stipulations”). “[T]he evidence establishing

the operative facts must be obtained prior to filing the Civ.R. 60(B) motion.” Angel at *3.

In order to grant relief from judgment based on fraud, the movant must establish fraud

by clear and convincing evidence. Ratliff-Wooten v. Wooten, 4th Dist. Meigs App. No.

00CA1, 2000 WL 33226178 (Dec. 18, 2000); Still v. Still, 4th Dist. Gallia App. No.

95CA15, 1996 WL 362259 (June 25, 1996).

       {¶17} Here, the trial court found that Kirby failed to present any admissible

evidence to support his general allegations of fraud upon which it could assess some

level of reliability. The record shows that Kirby attached only two exhibits to support his

motion. Exhibit No. 1 is the EMS report, which was first introduced by Hamlin at the

damages hearing and shows that medics were dispatched to attend to Hamlin after he

fell through the porch. Kirby argued that this proves Hamlin was lying on the kitchen
Lawrence App. No. 15CA7                                                                  8


floor when they arrived, and not in the porch hole as Hamlin had testified. Exhibit No. 2

is an investigative report showing that Hamlin was employed by Thompson Towing

beginning in May 2012 for a few weeks. The investigative report is not in the form of an

affidavit and is not otherwise an admissible statement made under oath.

       {¶18} The trial court did not abuse its discretion in concluding that Kirby failed to

show sufficient operative facts to support his allegations of fraud. Hamlin testified that

he could not get up out of the porch hole without the assistance of others. According to

Hamlin, the EMS personnel assisted him out. The EMS report states that Hamlin was

assisted out of the hole by family members before EMS arrived. The inconsistency

between Hamlin’s recollection of the events immediately after the fall and the EMS

report does not prove by clear and convincing evidence that Hamlin committed fraud to

obtain his judgment. Hamlin’s inconsistent testimony concerning this relatively minor

and immaterial fact can just as readily be explained as arising from a state of confusion

caused by the fall. Both Hamlin’s testimony and the EMS report support the material

facts of Hamlin’s claim that he fell through a porch into a four to five-foot hole and

suffered back injuries.

       {¶19} Likewise, the trial court correctly determined that the investigative report

was not sworn testimony and therefore it was not of evidentiary quality. The

investigative report contained two levels of hearsay and is not the type of evidentiary

material required by our holdings in Spaulding-Buescher and Angel, supra. Moreover,

even if the trial court would have considered it, it does not prove fraud by clear and

convincing evidence. Hamlin testified that he was working for Thompson Towing in early

June 2012 when the fall occurred. The investigative report confirms that Hamlin started
Lawrence App. No. 15CA7                                                               9


working for Thompson Towing in May 2012 and does not contain a specific termination

date. The owner’s recollection three years later was that Hamlin worked there for “a few

weeks” and then failed to show up.

       {¶20} Based upon the record, we cannot say that the trial court abused its

discretion in denying Kirby’s motion for relief from judgment on the basis of fraud under

Civ.R. 60(B)(3).

       {¶21} As the second part of his first assignment of error, Kirby claims that there

was no proof of damages in the record. He argues that the trial court’s judgment is not

support by credible, competent evidence because the medical records were not

authenticated and under R.C. 2317.421, Hamlin cannot use medical bills unless he

submits them to the adverse party not less than five days before trial. Here there was no

“adverse party” as contemplated by R.C. 2317.421 because Kirby failed to answer or

make an appearance in the case until he appeared in court the day of the damage

hearing. The record shows that Hamlin testified at the damages hearing about his

injuries, medical expenses, and lost wages. He presented over 175 pages of medical

records and bills, which at the request of the trial court, were filed in the case.

       {¶22} Kirby’s argument concerning the alleged inadmissibility of the medical

records is an issue that could have been raised on direct appeal. Civ. R. 60(B) motion

cannot be used as a substitute for a direct appeal. “ ‘[W]here the remedy of appeal is

available to a party, and where the issues raised in a motion for relief from judgment are

those which could properly have been raised on appeal, a motion for relief from

judgment will be denied.’ ” Ohio Neighborhood Finance, Inc. v. Brown, 4th Dist.

Lawrence App. No. 10CA41, 2011-Ohio-2758, at ¶ 16-17; Newell v. White, 4th Dist.
Lawrence App. No. 15CA7                                                                   10

Pickaway App. No. 05CA27, 2006–Ohio–637, at ¶ 14, quoting Burroughs Real Estate

Co. v. Zennie R. Heath, 8th Dist. Cuyahoga App. No. 40476, 1980 WL 354563 (Mar. 20,

1980). “In order to bring [itself] within the limited area of Civ.R. 60(B), [movant] must

establish the existence of extraordinary circumstances which rendered [it] unable to

appeal[.] * * * [A] party should not be permitted to circumvent the appeals process

through application of Civ.R. 60(B), since it is the function of the appellate court to

correct legal errors committed by the trial court.” (Emphasis in original.) Newell at ¶ 14.

Civ.R. 60(B) was intended to provide relief from a final judgment in specific, enumerated

situations and cannot be used as a substitute for a direct, timely appeal. Doe v.

Trumbull County Children Services Board, 28 Ohio St.3d 128, 502 N.E.2d 605 (1986) at

paragraph two of the syllabus; Newell at ¶ 15.

       {¶23} The trial court did not abuse its discretion in denying Kirby’s motion on the

ground that he failed to make a sufficient showing of fraud under Civ.R. 60(B)(3). And,

Kirby’s claim concerning evidentiary errors related to the medical records falls outside

the scope of a Civ. R. 60(B) motion. We overrule Kirby’s first assignment of error.

                                 C. Kirby’s Remaining Claim

       {¶24} In his second assignment of error, Kirby makes a general, unspecified

claim that the trial court erred in failing to grant his motion. However, to succeed on a

Civ.R. 60(B) motion, Kirby must establish all three elements: (1) a meritorious defense;

(2) grounds under Civ.R. 60(B)(1) – (5); and (3) that his motion was made within a

reasonable time. Kirby must establish all three requirements before a court can grant

relief. Deters at 154; Citizens Bank Co. v. Keffer, 4th Dist. Washington App. No.

12CA17, 2013-Ohio-245, at ¶ 20-21.
Lawrence App. No. 15CA7                                                                11


         {¶25} We have already determined that Kirby did not submit sufficient evidence

of fraud under Civ.R. 60(B)(3), the only reason he gave for seeking relief from judgment.

Thus, the trial court did not abuse its discretion in denying Kirby’s motion on this ground.

Kirby gave no reasoning, argument or evidence under the remaining four grounds in

Civ.R. 60(B). Because Kirby clearly failed to satisfy one of the three requirements for

relief, we have no need to determine whether Kirby satisfied the other two requirements.

The trial court’s decision does not address the meritorious defense requirement and

Kirby does not challenge the trial court’s determination that he failed to bring his motion

within a reasonable time. See State Farm Mut. Auto. Ins. Co. v. Garreffa, 4th Dist.

Washington App. No. 04CA3, 2004-Ohio-3394 (even if a party files within the one-year

time limit, the party is still subject to the “reasonable time provision” and cannot simply

wait seven to nine months after receiving notice of the judgment to seek relief without

some showing of evidence to explain delay).

         {¶26} We overrule Kirby second assignment of error and affirm the trial court’s

judgment.

                                         IV. CONCLUSION

         {¶27} Kirby failed to support his Civ.R. 60(B)(3) motion with sufficient evidence

establishing the operative facts of fraud by clear and convincing evidence. Accordingly,

the trial court did not abuse its discretion when it denied Kirby’s motion for relief from

judgment. We overrule Kirby’s assignments of error and affirm the judgment of the trial

court.

                                                                  JUDGMENT AFFIRMED.
Lawrence App. No. 15CA7                                                             12


                                  JUDGMENT ENTRY

     It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

     The Court finds there were reasonable grounds for this appeal.

    It is ordered that a special mandate issue out of this Court directing the Lawrence
County Court of Common Pleas to carry this judgment into execution.

      Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

     A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J. & McFarland, A.J.: Concur in Judgment and Opinion.



                                           For the Court




                                           BY: _______________________________
                                           William H. Harsha, Judge




                                NOTICE TO COUNSEL

     Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
