[Cite as Jackson v. Coker, 2014-Ohio-5114.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
JEWELL JACKSON C.A. No. 27123
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
NATHANIEL COKER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CV-2011-08-4585
DECISION AND JOURNAL ENTRY
Dated: November 19, 2014
MOORE, Judge.
{¶1} Defendant-Appellant, Nathaniel Coker, appeals from the September 24, 2013
judgment of the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} This matter stems from a dispute over the ownership of real property known as
161 Lake Street, Akron, Ohio (“161 Lake Street”). In 2010, Plaintiff-Appellee, Jewell Jackson,
allegedly gave Mr. Coker, her boyfriend, the funds to purchase 161 Lake Street after she and Mr.
Coker agreed on the following terms: if Ms. Jackson gave Mr. Coker money to purchase the
property and allowed him to place title in his name in order to improve his credit, Mr. Coker
would live in the property while it was being renovated, and convey title back to Ms. Jackson
after the renovations were complete. According to the record, Ms. Jackson spent approximately
$4,000 on the purchase of the property, and approximately $11,000 on labor and materials for the
renovations. Once the property was habitable, Ms. Jackson, without Mr. Coker’s knowledge,
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agreed that Darwin Spencer could rent one of the rooms in the house. Mr. Coker became angry,
removed Ms. Jackson, Mr. Spencer, and Mr. Spencer’s property from 161 Lake Street, and
verbally threatened Ms. Jackson. After this incident, Ms. Jackson demanded that 161 Lake
Street be deeded back to her, and Mr. Coker refused.
{¶3} In August of 2013, Ms. Jackson filed a complaint against Mr. Coker, which, as
amended, alleged (1) fraud, (2) unjust enrichment/constructive trust, (3) conversion/replevin, and
(4) defamation/intentional interference with employee relationships. Mr. Coker filed an answer
and counterclaim. The counterclaim was subsequently dismissed, and the matter proceeded to a
bench trial. A magistrate of the trial court found that Ms. Jackson was entitled to relief on her
claims for fraud, defamation, and constructive trust, and entered judgment in favor of Ms.
Jackson in the amount of $54,500. Mr. Coker filed objections, and the trial court adopted the
magistrate’s decision, in part, and modified it, in part, reducing the judgment to $33,500. Mr.
Coker also filed a motion to stay the proceedings and a notice of appeal/motion for
reconsideration in the trial court, which were also denied.
{¶4} The trial court submitted Mr. Coker’s “notice of appeal,” to this Court and we
dismissed it in a journal entry for failure to comply with App.R. 3(D). (“The notice of appeal
shall specify the party or parties taking the appeal; shall designate the judgment, order or part
thereof appealed from; and shall name the court to which the appeal is taken.”). See Jackson v.
Coker, 9th Dist. Summit No. 27017 (Aug. 5, 2013). Mr. Coker then filed two motions to stay the
proceedings, and two Civ.R. 60(B) motions for relief from judgment. The trial court denied all
of Mr. Coker’s motions.
{¶5} It is from the trial court’s denial of his Civ.R. 60(B) motions that Mr. Coker now
appeals, raising one assignment of error for our consideration.
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II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DETERMINING THAT [MR. COKER] DID NOT PROVIDE OPERATIVE
FACTS IN HIS 60(B) MOTIONS WARRANTING RELIEF FROM
JUDGMENT.
{¶6} In his sole assignment of error, Mr. Coker argues that the trial court erred in
denying his Civ.R. 60(B) motions because, in his first motion, he “clearly alleged [f]raud and
newly discovered evidence” and attached the affidavit of Tommy Tanner, a “material witness,”
and, in his second motion, he alleged that Mr. Tanner was unavailable at the time of trial.
{¶7} In response, Ms. Jackson argues that Mr. Coker failed to allege any operative
facts regarding: (1) fraud, (2) Mr. Tanner’s unavailability at the time of trial, or (3) what Mr.
Tanner’s testimony would reveal about Ms. Jackson’s expenses.
{¶8} “The decision to grant or deny a motion for relief from judgment pursuant to
Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed absent an
abuse of discretion.” State v. Hulgin, 9th Dist. Summit No. 26719, 2013-Ohio-2794, ¶ 7, citing
Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994). An abuse of discretion indicates that the trial
court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983).
{¶9} Civ.R. 60(B) allows a court to relieve a party from a final judgment, order, or
proceeding under certain circumstances. Such circumstances include: “(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 * * *; (3) fraud * * *;
(4) the judgment has been satisfied, released or discharged * * *; or (5) any other reason
justifying relief from the judgment.” Civ.R. 60(B).
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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 Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of
the syllabus. “Civ.R. 60(B) relief is improper if any one of the foregoing requirements is not
satisfied.” State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151 (1996). Additionally, “if the
Civ.R. 60(B) motion contains allegations of operative facts which would warrant relief from
judgment, the trial court should grant a hearing to take evidence to verify those facts before it
rules on the motion.” Id., citing Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18 (1996); Coulson
v. Coulson, 5 Ohio St.3d 12, 16 (1983). “Conversely, an evidentiary hearing is not required
where the motion and attached evidentiary material do not contain allegations of operative facts
which would warrant relief under Civ.R. 60(B).” Seidner at 151, citing S. Ohio Coal Co. v.
Kidney, 100 Ohio App.3d 661, 667 (4th Dist.1995).
{¶10} “Under the GTE test, we must first determine if [Mr. Coker] had a ‘meritorious
defense or claim’ to assert if relief were granted.” Akron Gen. Med. Ctr. v. Med. Mut. of Ohio,
9th Dist. Summit No. 24484, 2009-Ohio-2679, ¶ 8. “A movant should be cautious and hesitate
to ‘rely[ ] on filing a motion for relief from judgment with little or no facts and conclusions of
law.’” Id. quoting Adomeit v. Baltimore, 39 Ohio App.2d 97, 103-04 (8th Dist.1974).
{¶11} Here, in his first Civ.R. 60(B) motion, Mr. Coker claimed that Ms. Jackson
“committed a fraud on the courts by using fraudulent checks and receipts” to prove the amount
she spent on renovating 161 Lake Street. In support, Mr. Coker attached the affidavit of Mr.
Tanner, several pages of Ms. Jackson’s checks written to Mr. Tanner and Andre Jackson, several
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pages of Ms. Jackson’s receipts from Home Depot, parts of the transcript from trial, and several
pages of product descriptions printed from Home Depot’s website.
{¶12} Mr. Tanner’s affidavit lists all of the “jobs” he remembered doing for Ms. Jackson
at her various properties, including 161 Lake Street, between April and July of 2011. In his
affidavit, Mr. Tanner states that at 161 Lake Street, he (1) rewired the basement and first floor,
(2) plumbed the entire house, (3) replaced drywall and repaired every room, (4) repaired or
replaced the windows in most of the house, (5) performed miscellaneous carpentry jobs, (6)
repaired an old door, (7) installed a new door, (8) repaired the gas line, (9) repaired the roof, (10)
installed a sink, and (11) installed a tub surround. However, Mr. Tanner’s affidavit does not
speak at all to the issue of fraud, and arguably supports the fact that he did substantial work at the
161 Lake Street property. Further, the other attached documents do not demonstrate that Ms.
Jackson committed fraud.
{¶13} In his second Civ.R. 60(B) motion, Mr. Coker claimed that Mr. Tanner was
unavailable as a witness at the time of trial and that he had information to “rebut and disprove the
expenses presented by [Ms. Jackson].” He also claimed that Mr. Tanner had direct evidence
proving that Ms. Jackson committed fraud. Mr. Coker did not attach any evidentiary materials to
his second motion, nor did he set forth any facts in support of these allegations.
{¶14} In denying Mr. Coker’s Civ.R. 60(B) motions without a hearing, the trial court
stated that:
***
Upon review and consideration, this [c]ourt finds that [Mr. Coker] has failed to
allege operative facts that warrant relief pursuant to Civ.R. 60(B).
[Mr. Coker] alleges that a witness was unavailable at the time of trial, but fails to
provide any evidence of the witness being unavailable.
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Furthermore, this [c]ourt has reviewed the entire transcript of the two-part trial of
this matter and at no time during the first or second part of this trial was a motion
made to reconvene to locate the alleged unavailable witness, [Mr.] Tanner.
***
{¶15} Based upon the record before us, we cannot conclude that the trial court abused its
discretion in denying Mr. Coker’s motions without a hearing. Neither the motions, nor their
attachments, if any, demonstrate operative facts in support of Mr. Coker being entitled to relief
from judgment due to fraud or the unavailability of a witness. As such, because no operative
facts were presented in support of Mr. Coker’s motions, the trial court did not err in denying
them without a hearing.
{¶16} Accordingly, Mr. Coker’s assignment of error is overruled.
III.
{¶17} In overruling Mr. Coker’s sole assignment of error, 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
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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.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
HENSAL, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
CHRISTINE D. FINAN, Attorney at Law, for Appellant.
DEAN S. HOOVER, Attorney at Law, for Appellee.