[Cite as RiverPark Group, LLC. v. City of Dublin, 2019-Ohio-723.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

RiverPark Group, LLC,                               :

                Plaintiff-Appellant,                :
                                                                         No. 18AP-188
v.                                                  :                 (C.P.C. No. 16CV-3134)

City of Dublin, Ohio,                               :               (REGULAR CALENDAR)

                Defendant-Appellee.                 :



                                           D E C I S I O N

                                   Rendered on February 28, 2019


                On brief: Warner Mendenhall and Karen Edwards-Smith,
                for appellant. Argued: Karen Edwards-Smith.

                On brief: Frost Brown Todd LLC, Philip K. Hartman,
                Jeremy M. Grayem, and Yazan S. Ashwari, for appellee.
                Argued: Yazan S. Ashwari.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, RiverPark Group, LLC ("RiverPark"), appeals from a
February 14, 2018 judgment of the Franklin County Court of Common Pleas denying its
motion for relief from judgment under Civ.R. 60(B)(3). For the following reasons, we
affirm the decision of the trial court.
I. FACTS AND PROCEDURAL BACKGROUND
        {¶ 2} This matter arose from a dispute between RiverPark and defendant-appellee,
City of Dublin ("Dublin"), in connection with Dublin's taking of certain real property
belonging to RiverPark ("the property") via eminent domain.
        {¶ 3} On March 31, 2016, RiverPark filed a complaint for damages, temporary
restraining order, and preliminary injunction (the "TRO action"), alleging that Dublin had
trespassed on the property when, in September 2015, Dublin had initiated an eminent
No. 18AP-188                                                                            2


domain action,1 exercised its quick-take authority, and entered the property to begin
construction of a public project (the "eminent domain action").
          {¶ 4} Dublin had initiated the eminent domain action against RiverPark as part of
Dublin's roadway project to improve the intersection of State Route 161 ("SR 161") and
Riverside Drive. As part of the roadway project, Dublin sought to acquire easements from
RiverPark's property for construction of a public shared-use path as an appurtenance to the
road. The eminent domain action was tried in the Franklin County Court of Common Pleas
to a jury verdict. Pursuant to the trial court's judgment entry on verdict, RiverPark was
paid compensation in an amount determined by the jury, and the easements were conveyed
to Dublin. The judgment entry on verdict was subsequently recorded with the Franklin
County Recorder's Office.
          {¶ 5} Also on March 31, 2016, RiverPark filed a motion for temporary restraining
order ("TRO motion"). The trial court set the TRO motion for a hearing on April 4, 2016.
At the hearing, however, the parties requested a one-week continuance of the matter in
order to resolve the matter. By agreed order, the trial court rescheduled RiverPark's TRO
motion for hearing one week later on April 11, 2016. After the parties subsequently
requested another continuance to continue resolving their controversy, the trial court
issued another agreed order on April 18, 2016, resetting the hearing on the TRO motion for
May 6, 2016. In this agreed entry, the court also ordered Dublin to file any responsive
pleadings by May 27, 2016.
          {¶ 6} The parties thereafter notified the trial court that they had reached a
settlement agreement. On May 5, 2016, the trial court issued a notice ordering counsel to
prepare the appropriate entry for the trial court's approval within 30 days.
          {¶ 7} On May 26, 2016, however, before the parties were able to submit an entry
for the trial court's approval, RiverPark's counsel, Michael Braunstein and Matthew
Strayer, filed a motion to withdraw as counsel citing multiple reasons. Braunstein and
Strayer advised the trial court that RiverPark's principal, William Trembly, was
unresponsive to communications from his attorneys and reasonable requests from Dublin.
They further advised that Trembly had instructed them to rescind the settlement agreement
which he previously had authorized.


1   Franklin C.P. No. 15CV-8662.
No. 18AP-188                                                                          3


      {¶ 8} Learning of RiverPark's intention to rescind the agreed-upon settlement
agreement, Dublin filed a motion to enforce the settlement agreement on June 22, 2016.
In its memorandum in support of its motion, Dublin stated:
             The Parties engaged in several settlement discussions to
             resolve the instant matter. Those discussions were ultimately
             successful, with minor issues left for the Parties to iron out. The
             successful settlement discussions and agreement on certain
             terms are evidenced in the email correspondence between the
             Parties' attorneys, which is attached hereto and incorporated
             herein as Exhibit A.

             The successful settlement agreement is also memorialized in
             the Property Owner's attorneys' Motion to Withdraw, which
             was filed with this Court on May 26, 2016 and is attached
             hereto and incorporated herein as Exhibit B. In that motion,
             counsel states that:

             Mr. Trembly authorized the undersigned to enter into a
             settlement agreement with Dublin to resolve claims RiverPark
             brought for trespass, temporary restraining order, and
             preliminary injunction . . . . The next day, the undersigned
             informed the Court that the matter had settled and a dismissal
             entry would be forthcoming. Subsequently, Mr. Trembly
             instructed the undersigned to reject or rescind the agreement
             after it had been entered into, and he has continued to insist
             that the undersigned take such action.

             Moreover, Dublin had already performed many of the terms
             upon which it agreed with Riverpark. Based on these
             undisputed facts, Dublin moves to enforce the settlement
             agreement with Riverpark and enter judgment pursuant to the
             agreement of the Parties.

(Emphasis sic.) (June 22, 2016 Mot. to Enforce at 2.)
      {¶ 9} On June 23, 2016, RiverPark obtained new counsel, attorney Gregory
Barwell.
      {¶ 10} On June 24, 2016, the trial court held a status conference, with Dublin's
counsel and RiverPark's new counsel and former counsel in attendance. On June 28, 2016,
the trial court issued an entry granting the motion of Braunstein and Strayer to withdraw
as RiverPark's counsel, and scheduling a hearing for July 29, 2016 on Dublin's motion to
enforce the settlement agreement.
No. 18AP-188                                                                          4


       {¶ 11} Before the motion came for hearing, the parties agreed to the previously
agreed-upon settlement and memorialized the terms of the agreement on the record with
the trial court in telephone conference conducted on June 29, 2016. On July 5, 2016, the
trial court dismissed RiverPark's case against Dublin with prejudice, but retained
jurisdiction for the purpose of enforcing the parties' settlement agreement.
       {¶ 12} On June 27, 2017—nearly one year after the trial court had dismissed
RiverPark's action against Dublin—RiverPark, represented by new counsel, sought to
rescind the parties' settlement agreement by reopening the TRO action through a motion
for relief from judgment, alleging that Dublin had engaged in fraud. RiverPark's primary
allegation was that Dublin had failed to comply with the terms of the parties' settlement
agreement.
       {¶ 13} On July 11, 2017, Dublin filed a memorandum contra RiverPark's motion for
relief from judgment. Dublin argued that RiverPark was unable to satisfy the requirements
necessary to warrant relief from judgment pursuant to Civ.R. 60(B)(3), stating:
              The fact that RiverPark filed a Motion for Relief from
              Judgment rather than a motion to enforce its rights under the
              Parties' settlement agreement is telling. Notwithstanding these
              questionable motives, RiverPark's Motion fails for several
              reasons.

              RiverPark's Motion fails because (1) it has not demonstrated
              that it has a meritorious claim or defense if relief is granted;
              (2) it did not demonstrate it was entitled to relief under Civ.R.
              60(B)(3); and (3) it did not demonstrate that its Motion for
              relief from judgment was filed within a reasonable time. Failure
              to meet its burden to demonstrate all three requirements will
              result in denial of the Motion.

              In fact, not only did RiverPark fail to demonstrate these
              requirements, but it did not even specifically allege that it has
              a meritorious claim or defense it relief is granted, or that it filed
              its Motion within a reasonable time. Instead, RiverPark spent
              the entirety of its Motion erroneously accusing Dublin of
              fraudulent misrepresentation. Notwithstanding the fact that
              RiverPark's accusations are misguided, the failure to even
              mention two or the three requirements to obtain relief from
              judgment is fatally flawed and will result in denial of the
              Motion.

(July 11, 2017 Memo. Contra Mot. for Relief at 1-2.)
No. 18AP-188                                                                          5


       {¶ 14} On July 19, 2017, RiverPark filed its reply to Dublin's memorandum contra.
       {¶ 15} On February 14, 2018, the trial court issued an entry denying RiverPark's
motion for relief from judgment. The entry stated in part:
              To prevail on a motion brought 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, 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 Electric, Inc. v. ARC Industries, 47 Ohio St.2d
              146, 351 N.E.2d 113 (1976), syllabus paragraph 2. The movant
              must establish all three of the requirements to obtain relief
              from judgment. Bank of America, N.A. v. Malone, 10th Dist.
              No. 11AP-860, 2012-Ohoi-3573, ¶ 7.

              The moving party " 'must allege supporting operative facts with
              enough specificity to allow the trial court to decide that the
              movant has a defense he could have successfully argued at
              trial.' " Miller v. Susa Partnership, L.P., 10th Dist. No. 07AP-
              702, 2008 Ohio 1111, ¶ 16, quoting Mattingly v. Deveaux, 10th
              Dist. No. 03AP-793, 2004 Ohio 2506, ¶ 10. Although a party is
              not required to prevail on the merits of a defense in order to
              obtain relief under Civ.R. 60(B), the movant "must do more
              than make bare allegations that it is entitled to relief and [has]
              a meritorious defense to present." Id. at ¶ 19.

              Here, the [trial court] finds that RiverPark failed to
              demonstrate the requirements to be entitled to relief. To be
              sure, RiverPark's motion fails to specifically allege that it has a
              meritorious claim or defense if relief is granted, and failed to
              address whether its motion was filed within a reasonable time
              (just days before one-year from the entry of final judgment). By
              failing to address two of the three requirements necessary for
              relief, RiverPark's motion is procedurally flawed. Accordingly,
              the [trial court] finds RiverPark's Motion for Relief from
              Judgment not well-taken and hereby DENIED.

(Feb. 14, 2018 Entry at 1-2.)
No. 18AP-188                                                                                             6


        {¶ 16} RiverPark filed its notice of appeal on March 15, 2018.2
II. ASSIGNMENTS OF ERROR
        {¶ 17} RiverPark presents two assignments of error for our review:
                [1.] The trial court erred in denying RiverPark Group, LLC's
                motion for relief from judgment under Civ.R. 60(B)(3).

                [2.] The trial court erred in denying RiverPark Group, LLC's
                motion for relief from judgment under Civ.R. 60(B) without
                holding an evidentiary hearing.

III. LAW AND DISCUSSION
    A. Standard of Review
        {¶ 18} It is well-settled that "[a] motion for relief from judgment under Civ.R. 60(B)
is addressed to the sound discretion of the trial court, and that court's ruling will not be
disturbed on appeal absent a showing of abuse of discretion." Griffey v. Rajan, 33 Ohio
St.3d 75, 77 (1987). An abuse of discretion "connotes more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable."
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
    B. Assignments of Error
        1. First Assignment of Error
        {¶ 19} RiverPark argues that the trial court erred in denying its motion for relief
from judgment under Civ.R. 60(B)(3) because RiverPark has a meritorious claim, is
entitled to relief under Civ.R. 60(B)(3), and filed its motion within one year of the trial
court's judgment entry of dismissal with prejudice.
        {¶ 20} We do not find RiverPark's argument well-taken. The trial court's decision
discussed in full the law governing the three requirements necessary for a movant to prevail
on a Civ.R. 60(B) motion and explained how RiverPark's motion had failed to satisfy those
requirements. The trial court specifically found that RiverPark's motion was procedurally
flawed because it failed (1) to specifically allege that it had a meritorious claim or defense if
relief were granted, and (2) to address whether its motion had been filed within a


2 We note that the parties proceeded to a jury trial on the eminent domain action on June 11, 2018, with
RiverPark being represented by new counsel, the counsel representing it in this appeal. The jury returned a
verdict on June 13, 2018. On July 11, 2018, the trial court entered a judgment entry on verdict that awarded
RiverPark just compensation for the easements acquired by Dublin, and conveyed the same easements to
Dublin. The judgment entry on verdict was recorded with the Franklin County Recorder's Office as
Instrument No. 201807170094783.
No. 18AP-188                                                                                  7


reasonable time. It is well-established in Ohio courts that Civ.R. 60(B) relief is improper if
any one of the requirements is not satisfied. Boston v. Parks-Boston, 10th Dist. No. 02AP-
1031, 2003-Ohio-4263, ¶ 13, citing State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151
(1996), citing Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994). Because RiverPark's motion
failed to address two of the three requirements necessary for relief under Civ.R. 60(B), the
trial court denied it in accordance with the applicable law.
       {¶ 21} Based on our review of the record, we find the common pleas court's
reasoning to be sound. Because RiverPark's motion is procedurally flawed, we need not
address the arguments raised in its brief. Accordingly, we find that the common pleas court
did not abuse its discretion by denying RiverPark's Civ.R. 60(B)(3) motion for relief from
judgment. RiverPark's first assignment of error is overruled.
       2. Second Assignment of Error
       {¶ 22} RiverPark also argues that the trial court erred in denying its motion for relief
from judgment without holding an evidentiary hearing. In support of its argument,
RiverPark relies on this Court's holdings in Your Fin. Community of Ohio, Inc. v. Emerick,
123 Ohio App.3d 601, 608 (10th Dist.1997), and PNC Bank, Natl. Assn. v. Botts, 10th Dist.
No. 12AP-256, 2012-Ohio-5383, and the Ninth District Court of Appeals's holding in
Twinsburg Banking Co. v. RHEA Constr. Co., Inc., 9 Ohio App.3d 39 (9th Dist.1983).
       {¶ 23} We disagree that those holdings control to the facts presented in this matter.
In Emerick, this Court "adopted a rule that when a Civ.R. 60 (B) motion, though
unsupported by evidentiary materials, sets forth with sufficient specificity facts that, if true,
would justify relief, the trial court abuses its discretion if it overrules such a motion without
sua sponte conducting an evidentiary hearing." Emerick at 608. This is the same rule
previously adopted by the Ninth District in Twinsburg Banking Co. and subsequently
followed by this Court in Botts. In all three cases, the movants had set forth specific facts
demonstrating a meritorious claim or defense, in the event relief were granted.
       {¶ 24} In contrast, as the trial court expressly found, "RiverPark's motion fails to
specifically allege that it has a meritorious claim or defense if relief is granted." (Feb. 14,
2018 Entry at 2.) Because the demonstration of a meritorious claim or defense is a
requirement for relief for judgment, and because RiverPark's motion did not allege that it
had a meritorious claim or defense, we find the trial court did not abuse its discretion in
No. 18AP-188                                                                           8


denying RiverPark's motion without holding an evidentiary hearing. RiverPark's second
assignment of error is overruled.
IV. CONCLUSION
       {¶ 25} Based on the foregoing, we overrule RiverPark's first and second assignments
of error, and we affirm the judgment of Franklin County Court of Common Pleas.
                                                                     Judgment affirmed.

                         KLATT, P.J., and HORTON, J., concur.
