[Cite as Lewis v. Classic Auto Body, 2012-Ohio-1201.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97339



                                     WARREN LEWIS
                                                              PLAINTIFF-APPELLANT

                                                        vs.

                        CLASSIC AUTO BODY, ET AL.
                                                              DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-742349


        BEFORE:          Celebrezze, J., Blackmon, A.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                             March 22, 2012
ATTORNEY FOR APPELLANT

Kenneth D. Myers
6100 Oak Tree Boulevard
Suite 200
Independence, Ohio 44131


FOR APPELLEES

For Classic Auto Body
Classic Auto Body, pro se
4268 East 71st Street
Cleveland, Ohio 44105

For Chris D. Brindza
Chris D. Brindza, pro se
4268 East 71st Street
Cleveland, Ohio 44105

For Dennis Nottingham
Dennis Nottingham, pro se
4268 East 71st Street
Cleveland, Ohio 44105
FRANK D. CELEBREZZE, JR., J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1, the trial court records, and briefs of counsel.

       {¶2} Appellant, Warren Lewis, appeals the judgment of the common pleas court

denying his Civ.R. 60(B)(2) motion for relief from judgment. After careful review of the

record and relevant case law, we affirm the judgment of the trial court.

       {¶3} On January 5, 2000, appellant delivered his 1968 Chrysler 300 to appellee,

Classic Auto Body (“Classic”), to have it restored to showroom condition. After careful

negotiations, Classic agreed to perform the restoration, and appellant paid Classic a $500

non-refundable deposit. On January 11, 2000, Classic gave appellant a written estimate

for the requested work, indicating that the restoration would cost approximately $5,055.75.

       {¶4} On February 18, 2000, appellant paid Classic an additional $482 toward his

outstanding balance for various mechanical repairs recommended by Classic.

       {¶5} Approximately four years later, appellant contacted Classic to inquire about

the status of his vehicle. Classic advised appellant that if he paid $2,000 toward his

outstanding balance, his vehicle would be completed within a “reasonable time.” On

April 7, 2004, appellant paid Classic an additional $2,000 toward his outstanding balance.

       {¶6} By June 2006, Classic had not started the restoration of appellant’s vehicle.

Appellant was told by Classic that he was required to pay the entire balance of his
outstanding bill before his vehicle would be a priority. On June 1, 2006, appellant paid

Classic the remaining balance in full.

       {¶7} By 2008, the restoration project had not been completed by Classic, and

appellant demanded the return of his vehicle and money. However, Classic “guaranteed”

the project would be completed by June 10, 2008. On June 10, 2008, the restoration still

had not been completed. Again, Classic “guaranteed” that the project would be completed

by July 14, 2008. Despite Classic’s repeated assurances that the restoration would be

completed, Classic failed to perform its contractual obligations by July 14, 2008.

       {¶8} On November 29, 2010, appellant filed suit against Classic alleging breach of

contract and fraud because the vehicle had neither been restored nor returned to appellant.

On March 8, 2011, appellant filed a motion for default judgment after Classic failed to file

an answer.

       {¶9} On June 2, 2011, the trial court entered a default judgment in favor of appellant

based on Classic’s failure to file an answer. The trial court ordered Classic to pay

appellant $6,300 and to return the 1968 Chrysler 300 to appellant within five days of the

judgment entry.

       {¶10} Upon retrieving the vehicle on or about July 9, 2011, appellant discovered

that Classic had allowed the vehicle to deteriorate and had stripped portions of the

vehicle’s interior, creating extensive damages that were not considered at the time

appellant was awarded the June 2, 2011 default judgment.
         {¶11} On August 3, 2011, appellant filed a motion for relief from judgment,

pursuant to Civ.R. 60(B)(2), seeking additional damages. On August 23, 2011, the trial

court denied appellant’s motion for relief from judgment without a hearing.

         {¶12} Appellant brings this timely appeal, raising two assignments of error. For

the purposes of judicial clarity, appellant’s assignments of error will be addressed out of

order.

                                       Law and Analysis

                             I. Motion for Relief from Judgment

         {¶13} In his second assignment of error, appellant argues that the trial court erred

by denying his motion for relief from judgment.

         {¶14} We note that the trial court is vested with discretion in determining whether to

grant a motion for relief from judgment under Civ.R. 60(B), and that court’s ruling will not

be disturbed on appeal absent a showing of abuse of discretion. Rose Chevrolet, Inc. v.

Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). An abuse of discretion implies that

the court’s attitude is unreasonable, arbitrary or unconscionable.              Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶15} 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.

       {¶16} 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 Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113
       (1976), paragraph two of the syllabus.

       {¶17} A failure to establish any one of the foregoing circumstances is ordinarily

fatal to a Civ.R. 60(B) motion. See Rose Chevrolet, Inc., 36 Ohio St.3d at 20 (stating that

the trial court should overrule a Civ.R. 60(B) motion if the movant fails to meet any one of

the foregoing three requirements); GTE, 47 Ohio St.2d at 151 (stating that the three

requirements are “conjunctive”).

       {¶18} Here, appellant contends that he was entitled to relief from the June 2, 2011

default judgment, pursuant to Civ.R. 60(B)(2). Appellant alleges that the discovery of

additional damages to his vehicle constituted “newly discovered evidence.”

       {¶19} To warrant the granting of a new trial on the grounds of newly discovered

evidence,

       “it must be shown that the new evidence (1) discloses a strong probability
       that it will change the result if a new trial is granted, (2) has been discovered
       since the trial, (3) is such as could not in the exercise of due diligence have
       been discovered before the trial, (4) is material to the issues, (5) is not merely
       cumulative to former evidence, and (6) does not merely impeach or
       contradict the former evidence.” State v. Barnes, 8th Dist. No. 95557,
       2011-Ohio-2917, ¶ 23, quoting State v. Petro, 148 Ohio St. 505, 76 N.E.2d
       370 (1947), at the syllabus.

       {¶20} In the case at bar, appellant attached to his motion for relief from judgment an

appraisal he received from Third Party Auto Appraisal Company (“Third Party Auto”) on

July 16, 2011. In its report, Third Party Auto indicated that appellant’s vehicle was worth

approximately $11,215 at the time Classic received the vehicle on January 5, 2000.

However, based on the substantial interior damage caused to the vehicle while in Classic’s

possession, Third Party Auto estimated that the vehicle’s market value had diminished to

approximately $780. Additionally, Third Party Auto estimated that appellant’s vehicle

would have a current value of approximately $16,575 if the restoration had been completed

by Classic, as originally requested.

       {¶21} Upon review of appellant’s motion for relief from judgment and the attached

documents, we find that appellant failed to satisfy the second prong of the GTE test

because appellant’s discovery of the additional damages to his vehicle does not constitute

“newly discovered evidence” as defined by this court.            As stated above, “newly

discovered evidence” refers to evidence that, although in existence at the time of an

administrative hearing, was incapable of discovery by due diligence. Barnes at ¶ 23.

“Due diligence” is defined as “such a measure of prudence, activity, or assiduity as is

properly to be expected from, and ordinarily exercised by, a reasonable and prudent man
under the particular circumstances; not measured by any absolute standard, but depending

on the relative facts of the special case.” Black’s Law Dictionary 457 (6th Ed.Rev.1990).

       {¶22} Although appellant has submitted documentation that verifies the significant

damage caused to his vehicle since January 5, 2000, he has failed to set forth operative

facts that would support the contention that he in fact exercised due diligence, but was

unable to discover this evidence prior to the issuance of the June 2, 2011 default judgment.

Here, appellant’s motion for relief from judgment and attached affidavit are silent on the

issue of due diligence. In other words, there is nothing in the record to suggest that

appellant attempted to, but was prevented from discovering the full extent of his damages

prior to receiving a default judgment. Therefore, we are unable to conclude that the trial

court abused its discretion in denying appellant’s motion for relief from judgment.

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

                               II. Failure to Hold Hearing

       {¶24} In his first assignment of error, appellant argues that the trial court erred by

denying his motion for relief from judgment without holding a hearing.

       {¶25} A party who files a Civ.R. 60(B) motion for relief from judgment is not

automatically entitled to a hearing on the motion. Instead, the movant bears the burden of

demonstrating that he or she is entitled to a hearing on the motion. To warrant a hearing

on a Civ.R. 60(B) motion, the movant must allege operative facts that would warrant relief

under Civ.R. 60(B). Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 19, 665 N.E.2d 1102

(1996). Although a movant is not required to submit evidentiary material in support of the
motion, a movant must do more than make bare allegations of entitlement to relief.

French v. Taylor, 4th Dist. No. 01CA15, 2002-Ohio-114; see also Your Fin. Community of

Ohio, Inc. v. Emerick, 123 Ohio App.3d 601, 607, 704 N.E.2d 1265 (10th Dist.1997).

       {¶26} As previously discussed, appellant failed to allege operative facts that would

entitle him to relief under Civ.R. 60(B)(2). Specifically, he failed to demonstrate that he

was unable to discover the extent of damages to his vehicle prior to the issuance of the June

2, 2011 default judgment. Consequently, the trial court was not required to hold a

hearing.

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

       {¶28} Judgment affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, A.J., and
KENNETH A. ROCCO, J., CONCUR
