[Cite as Dutton v. Potroos, 2011-Ohio-3646.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



MARY DUTTON, ADMINISTRATOR OF                     JUDGES:
THE ESTATE OF BONITA L. BULLOCK                   Hon. Sheila G. Farmer, P. J.
                                                  Hon. John W. Wise, J.
        Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.

-vs-

HANY POTROOS, dba THE STABLES                     Case No. 2010 CA 00318
RESTAURANT AND HALL OF FAME
GRILLE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Case No. 2010 CV 00014


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        July 25, 2011


APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

BRIAN ZIMMERMAN                                STEPHEN P. GRIFFIN
JEFFREY LOOKABAUGH                             MICHAEL J. KAHLENBERG
SCHULMAN, ZIMMERMAN & ASSOC.                   WINKHART & RAMBACHER
236 3rd Street SW                              825 South Main Street
Canton, Ohio 44702                             North Canton, Ohio 44720
Stark County, Case No. 2010 CA 00318                                                   2

Wise, J.

       {¶1}   Appellant Hany Potroos appeals from the October 12, 2010, Judgment

Entry entered in the Stark County Court of Common Pleas denying his Civ.R. 60(B)

Motion.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   The facts relevant to this appeal are as follows:

       {¶3}   On February 18, 2009, Bonita Bullock was at The Stables Restaurant and

Hall of Fame Grille, located in Canton Ohio. Ms. Bullock was at the restaurant with a

group of family members to celebrate her sister's birthday. The main dining area at The

Stables was on a lower level from the rest of the restaurant premises. A short series of

steps went down into the main eating area. Ms. Bullock tripped and fell down these

steps. She suffered a fractured right leg. She was rushed by ambulance to Mercy

Medical Center, where she underwent surgery. Ms. Bullock never recovered from the

fall and surgery, and died just days later.

       {¶4}   On January 4, 2010, Appellee Mary Dutton, Bonita Bullock's sister and the

Administrator of her Estate, filed a Complaint in Stark County Court of Common Pleas

naming Appellant Hany R. Potroos as well as two unknown individuals as defendants.

       {¶5}   The record reflects that Appellant was personally served with a copy of the

Summons and Complaint by a process server on February 16, 2010.

       {¶6}   On March 12, 2010, Appellant filed a document requesting a leave of 30

days to obtain counsel to defend him in this action.

       {¶7}   By Judgment Entry filed March 12, 2010, the trial court granted this Motion

and gave him until May 17, 2010, to obtain legal counsel.
Stark County, Case No. 2010 CA 00318                                                     3


       {¶8}   On May 14, 2010, Appellant filed a document captioned “Request for

Case Dismissal”, requesting that the court dismiss the case against him. In that same

document, Appellant admitted that he had operated the restaurant for over eight years.

       {¶9}   On June 11, 2010, Appellee filed an opposition to this Motion.

       {¶10} The trial court treated Appellant’s filing as a Civil Rule 12(B) Motion to

Dismiss for failure to state a claim, and denied the same.

       {¶11} On July 21, 2010, Appellee filed a Motion for Default Judgment.

       {¶12} On August 3, 2010, the trial court set the matter for a hearing.

       {¶13} On August 17, 2010, the trial court conducted a hearing, on the record,

with Appellee and Appellant present, without counsel.

       {¶14} At the hearing, the trial court made inquiries as to the various papers filed

by Appellant, including the "Appeal of Default Judgment" which he had filed that same

morning. The trial court also allowed Appellant an opportunity to explain his failure to

obtain representation and his failure to file an Answer in the case.

       {¶15} After considering the evidence and testimony, the trial court granted

default judgment stating: “For the reasons set forth on the record, the Court grants

Plaintiff’s Motion for Default Judgment. The Court’s ruling was based, in part, upon the

holding in Faith Electric Co. v. Kirk, 2001WL491754 (Ohio App. 10 Dist.)” (Judgment

Entry, August I8, 2010). The court set the matter for a hearing on damages for

September 8, 2010.

       {¶16} On September 3, 2010, Appellant filed a second “Appeal of the Default

Judgment.”
Stark County, Case No. 2010 CA 00318                                                      4


         {¶17} On September 8, 2010, Appellant appeared at the damages hearing

without counsel.     At this hearing, the trial court heard evidence from the Plaintiff-

Appellee including the testimony of a witness and discussion of four exhibits. Mr.

Potroos was permitted to question the witness, and was asked if he wished to call any

witnesses.     Appellant did not present any witnesses or evidence.         The trial court

permitted Appellant to make objections on the record and to make an argument.

         {¶18} Following the hearing the trial court, “for the reasons stated in the record”

awarded damages totaling $1 million on Plaintiff-Appellee’s survivorship claim, and $1

million on Plaintiff-Appellee’s wrongful death claim. (Judgment Entry, September 13,

2010).

         {¶19} Subsequently, Appellant retained legal counsel.

         {¶20} On September 13, 2010, Appellant, through counsel, filed a Civil Rule

60(B) Motion requesting that the trial court vacate the default judgment. On the same

day, Appellant also moved for default judgment on what he referred to as his

counterclaim.

         {¶21} Appellee responded, noting that the trial court had gone over and above

the requirements to provide Appellant with an opportunity to retain counsel, and/or the

opportunity to defend himself after he chose to proceed pro se. Appellee also pointed

out that Appellant never properly served his "Counter Law Suit" on her.

         {¶22} On September 16, 2010, Appellant filed what appears to be basically the

same Rule 60(B) Motion, this time requesting an immediate oral hearing.

         {¶23} By Judgment Entry filed October 12, 2010, the trial court denied

Appellant's motions without a hearing
Stark County, Case No. 2010 CA 00318                                                     5


      {¶24} In its “Judgment Entry Denying Defendants' Motion to Set Aside Default

Judgment”, the trial court found that Appellant’s original "Request for Case Dismissal"

was not an Answer to the Complaint but was instead a Motion for Dismissal. The trial

court also found that Appellant had not provided any evidence demonstrating that he

was not a proper party in interest in the matter. Further, the trial court found that “not

once during the seven months that this matter was pending before the Court or during

either of the two hearings on the matter, which the Defendant attended and participated

in on his own behalf, did the Defendant ever argue or present evidence that he was not

the proper party in interest.”      The court further found that Appellant failed to

demonstrate that he was entitled to relief from default judgment.

      {¶25} It is from this decision that Appellant now appeals, raising the following

assignments of error for review:

                                   ASSIGNMENTS OF ERROR

      {¶26} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT’S CIV.R. 60(B) MOTION.

      {¶27} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

CONDUCT A HEARING ON APPELLANT’S CIV.R. 60(B) MOTION.”

                                               I.

      {¶28} In his first assignment of error, Appellant contends that the trial court erred

in denying his Civ.R. 60(B) motion. We disagree.

      {¶29} A motion for relief from judgment under Civ.R. 60(B) lies within the trial

court's sound discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 514 N.E.2d 1122. In

order to find abuse of discretion, we must determine the trial court's decision was
Stark County, Case No. 2010 CA 00318                                                  6

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140

       {¶30} Civ.R. 60 Relief from Judgment or Order, provides

       {¶31} “ * * *

       {¶32} “(B) Mistakes; inadvertence; excusable neglect; newly discovered

evidence; fraud; etc.

       {¶33} “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. A motion under this subdivision (B) does not affect the finality of a judgment or

suspend its operation.

       {¶34} “The procedure for obtaining any relief from a judgment shall be by motion

as prescribed in these rules.”

       {¶35} To prevail on a motion to vacate a judgment pursuant to Civ. R. 60(B), the

movant must demonstrate that: (1) the party has a meritorious defense to present if
Stark County, Case No. 2010 CA 00318                                                    7


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. GTE Automatic Electric Company, Inc. v. ARC Industries, Inc. (1976), 47

Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus.

        {¶36} Where timely relief is sought from a default judgment, and the movant has

a meritorious defense, doubt should be resolved in favor of the motion to set aside the

judgment so that cases may be decided on their merits. GTE Automatic, supra. at

paragraph three of the syllabus. The GTE Automatic factors are “independent and

conjunctive, not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986), Fairfield App. No. 12–

CA–86. “[F]ailing to meet one is fatal, for all three must be satisfied in order to gain

relief.” Id. at 5.

        {¶37} Our standard of review of a court's decision as to whether to grant a Civ.R.

60(B) motion is abuse of discretion. GTE at 148, 351 N.E.2d 113.

        {¶38} Upon review of the entire record in this matter, we find the trial court did

not abuse its discretion in overruling Appellant's Civ.R. 60(B) Motion.

        {¶39} Initially we note that Appellant filed his motion within the time limits set

forth in G.T.E., supra. We will therefore address the remaining two requirements.

        {¶40} Appellant herein argues that he has a meritorious defense, claiming that

he is not the proper party to this action.

        {¶41} With regard to the second prong of the G.T.E. test, Appellant claims that

he is entitled to relief under Civ.R.60(1) and (5).
Stark County, Case No. 2010 CA 00318                                                    8


       {¶42} Under Civ.R. 60(B)(1), Appellant herein claims both mistake and

excusable neglect.

       {¶43} First, Appellant argues that the trial court made a mistake by treating his

filing captioned “Request for Case Dismissal” as a motion to dismiss rather than

Answer. Appellant argues that the substance of the document reveals that it is in fact an

Answer, and not a motion to dismiss.

       {¶44} We have reviewed Appellant’s “Request for Dismissal” and cannot, under

an abuse of discretion standard, find that the trial court’s treatment of such a motion to

dismiss was unreasonable, arbitrary or unconscionable. Appellant, in the document in

question, specifically “asks that this case and all claims therein be dismissed, in the

interest of time and resources” claiming therein that the claims in the Complaint “are

baseless and unfounded.”

       {¶45} We further find the trial court’s treatment of such document as a motion to

dismiss was obvious from its Judgment Entry denying same, wherein it specifically

stated, “[i]n construing a Complaint under a Civ.R. 12(B) Motion to Dismiss for failure to

state a claim…” and again at the conclusion of the Entry where the court states “…the

court denies Defendant’s motion to dismiss.”

       {¶46} Appellant further claims excusable neglect, arguing that he tried to defend

himself in this action but that he was unfamiliar with “the intricacies of pleading

practice”.

       {¶47} Although excusable neglect is an “elusive concept,” Kay v. Marc

Glassman, Inc. (1996), 76 Ohio St.3d 18, 20, “the failure to plead or respond after

admittedly receiving a copy of a complaint is generally not excusable neglect.” LaSalle
Stark County, Case No. 2010 CA 00318                                                        9

Nat. Bank v. Mesas, 9th Dist. No. 02CA008028, 2002–Ohio–6117, at ¶ 13. It has been

held that “[o]nly where the failure to respond is coupled with a complete lack of notice of

the original motion may excusable neglect lie.” Chuck Oeder Inc. v. Bower, 9th Dist. No.

23785, 2007–Ohio–7032, at ¶ 8, quoting Zimmerman v. Rourke, 9th Dist. No.

04CA008472, 2004–Ohio–6075, at ¶ 9.

       {¶48} Appellant knew of the existence of this lawsuit. He signed the proof of

service, he filed a number of documents and he appeared at scheduled hearings.

Although Appellant was acting pro se and may not have realized the consequences of

failing to file a proper answer, it has been consistently held that pro se litigants are to be

held to the same standards as litigants who are represented by counsel. Rhoades v.

Greater Cleveland Regional Transit Auth., Cuyahoga App. No. 92024, 2009-Ohio-2483,

at ¶ 10, citing Tisdale v. Javitch, Block & Rathbone, Cuyahoga App. No. 83119, 2003-

Ohio-6883.

       {¶49} Similarly, the record does not support Appellant’s assertion that he is

entitled to relief under Civ.R. 60(B)(5). Civ.R. 60(B)(5) operates as a catch-all provision

and “reflects ‘the inherent power of a court to relieve a person from the unjust operation

of a judgment.’” Chuck Oeder Inc. at ¶ 10, quoting State ex rel. Gyurcsik v. Angelotta

(1977), 50 Ohio St.2d 345, 346. It is reserved for “extraordinary and unusual case[s],”

Myers v. Myers, 9th Dist. No. 22393, 2005–Ohio–3800, at ¶ 14, and “is not a substitute

for the enumerated grounds for relief from judgment[.]” Chuck Oeder, Inc. at ¶ 10.

       {¶50} Appellant herein has failed to provide this Court with any law in support of

his argument that the default judgment against him was unjust, given that he was fully

aware of these proceedings and simply failed to file an Answer. See App.R. 16(A)(7).
Stark County, Case No. 2010 CA 00318                                                   10


The record does not support the conclusion that this is the “extraordinary and unusual

case” for which relief pursuant to Civ.R. 60(B)(5) is reserved. Myers at ¶ 14.

      {¶51} For the above enumerated reasons, we find that the trial court did not

abuse its discretion in denying his motion for relief from default judgment pursuant to

Civ.R. 60(B).

      {¶52} Appellant’s first assignment of error is overruled.

                                               II.

      {¶53} In his second assignment of error, Appellant argues that the trial court

abused its discretion when it failed to hold an evidentiary hearing on his Civ.R. 60(B)

motion. We disagree.

      {¶54} The standard for when an evidentiary hearing on a Civ.R. 60(B) motion is

necessary is set forth in Cogswell v. Cardio Clinic of Stark County, Inc. (October 21,

1991), Stark App. No. CA-8553. In Cogswell, this Court held under Civ.R. 60(B), a

hearing is not required unless there exist issues supported by evidentiary quality

affidavits. A trial court must hold an evidentiary hearing when the motion and supporting

evidence contain sufficient allegations of operative facts which would support a

meritorious defense to the judgment. Cogswell; BancOhio National Bank v. Schiesswohl

(1988), 51 Ohio App.3d 130, 554 N.E.2d 1362.

      {¶55} In this case, the trial court denied Appellant's motion for relief from

judgment and request for hearing finding that none of Appellant's alleged reasons for

failing to timely file an answer in this matter could support a meritorious defense to the

judgment. Likewise, there was no reason to hold a hearing on Appellant's Civ.R. 6(B)

motion once the trial court denied the Civ.R. 60(B) motion.
Stark County, Case No. 2010 CA 00318                                                  11


      {¶56} In this case, our discussion in Appellant's first assignment of error is

dispositive of this assignment of error. Having found that Appellant failed to allege any

operative facts or present any argument that would warrant relief under Civ.R. 60(B), no

evidentiary hearing was required. Therefore, the trial court did not err in denying

Appellant's motion for such hearing.

      {¶57} Appellant’s second assignment of error is overruled.

      {¶58} For the foregoing reasons, the judgment of the Court of Common Pleas,

Stark County, Ohio, is affirmed.


By: Wise, J.

Farmer, P. J., and

Delaney, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
JWW/d 0630
Stark County, Case No. 2010 CA 00318                                         12


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




MARY DUTTON, ADMINISTRATOR OF             :
THE ESTATE OF BONITA L. BULLOCK           :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
HANY POTROOS, dba THE STABLES             :
RESTAURANT AND HALL OF FAME               :
GRILLE                                    :
                                          :
       Defendant-Appellant                :         Case No. 2010 CA 00318




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
