JEWELL JACKSON v. NATHANIEL COKER
C.A. No. 27123
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
November 19, 2014
2014-Ohio-5114
MOORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2011-08-4585
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,
{¶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
{¶5} It is from the trial court‘s denial of his
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
{¶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
{¶9}
GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. ”
{¶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
{¶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
{¶14} In denying Mr. Coker‘s
* * *
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.
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
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.
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.