Kostoglou v. Fortuna, 2019 Ohio 5116

Background

Fortuna executed a $250,000 ten‑year promissory note to Kostoglou on Feb. 29, 2008 (monthly payments, 10% interest); Fortuna defaulted.
A confession of judgment was filed and judgment entered in May 2015; Fortuna moved for Civ.R. 60(B) relief in June 2015 and the court granted relief on Dec. 1, 2015.
Kostoglou amended his complaint (Feb. 2016) to add Parmatown Spinal and Parmatown PT; discovery disputes followed and the court ordered compliance on Aug. 22, 2016.
After continued discovery noncompliance the court imposed sanctions, appointed a receiver (Oct. 26, 2016), and ultimately entered judgment for $250,000 plus interest against appellants for discovery failures (Oct. 30, 2017).
Appellants’ appeal was dismissed for lack of a final order; on June 15, 2018 appellants filed another motion labeled Civ.R. 60(B) claiming documents (purportedly proving the note was paid) were newly obtained but failed to attach the referenced exhibit or affidavits; the trial court denied relief without an evidentiary hearing (Oct. 31, 2018).
Appellants appealed, arguing the trial court abused its discretion by denying the motion and by not holding a hearing; the appellate court affirmed.

Issues

Issue	Plaintiff's Argument (Kostoglou)	Defendant's Argument (Fortuna/Parmatown)	Held
Was appellants' Civ.R. 60(B) motion proper when no final judgment existed?	Motion was untimely and appellants had no justification to reopen judgment; discovery sanctions justified entry.	The motion should be considered and relief granted because appellants obtained records showing the note was paid.	Motion was improper as a Civ.R. 60(B) motion because no final judgment existed; it should have been treated as reconsideration of an interlocutory order.
Did appellants meet the GTE requirements for Civ.R. 60(B) (meritorious defense, applicable ground, reasonable time)?	Court argued appellants failed to show operative facts, timely filing, or documentary evidence; no excuse for months of delay.	Appellants claimed newly obtained evidence (checks) showed payment of the note and requested a hearing to present that evidence.	Appellants failed to provide operative facts or evidence (no Exhibit A or affidavits), failed to explain delay; motion denied for lack of timeliness and lack of proof of entitlement to relief.
Was an evidentiary hearing required?	Hearing not required because appellants did not plead operative facts or attach supporting evidence; court may deny without hearing.	Appellants argued they should have a hearing to present accountant's list and canceled checks proving satisfaction.	No hearing required; hearing is discretionary and was properly denied where movant failed to allege operative facts or support them with evidence.
Could appellants rely on earlier 2015 Civ.R. 60(B) arguments (partnership/accord) now on appeal?	Kostoglou argued appellants waived those earlier arguments by not presenting them in the current motion and cannot raise new arguments on appeal.	Appellants contended the prior relief and arguments show the note was satisfied and warrant reconsideration.	Court held appellants waived reliance on prior 2015 arguments because they did not present them in the 2018 motion; new arguments raised on appeal are precluded.

Key Cases Cited

GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (Ohio 1976) (sets Civ.R. 60(B) three‑part test for relief)
Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (Ohio 1988) (movant must meet each GTE requirement or motion must be denied)
Griffey v. Rajan, 33 Ohio St.3d 75 (Ohio 1987) (trial court has discretion whether to hold an evidentiary hearing on Civ.R. 60(B))
Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard defined)
Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18 (Ohio 1996) (excusable neglect and when hearings are required on Civ.R. 60(B))
Coulson v. Coulson, 5 Ohio St.3d 12 (Ohio 1983) (if operative facts are alleged, court should grant a hearing to verify them)