[Cite as Fontain v. Sandhu,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

MARCUS FONTAIN, : APPEAL NO. C-200011 TRIAL NO. A-1901296 Plaintiff-Appellant, :

vs. : O P I N I O N.

HARJINDER SANDHU, :

JASREEN K. SANDHU, :

H&R CINCY PROPERTIES, LLC, :

JEFFREY S. LANE, :

APRIL L. LANE, :

PRODIGY PROPERTIES, LLC, :

BRIAN J. O’CONNEL, :

and :

ZACHARY D. PRENDERGAST, :

Defendants-Appellees, :

and :

WESTFIELD INSURANCE COMPANY, : et al., : Defendants.

Civil Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: August 11, 2021

Marcus Fontain, pro se,

Strauss Troy Co., LPA, and Brian J. O’Connell, for Defendants-Appellees Harjinder Sandhu, Jasreen Sandhu, Brian J. O’Connell and H&R Cincy Properties, LLC, OHIO FIRST DISTRICT COURT OF APPEALS

Robbins, Kelly, Patterson, & Tucker and Zachary D. Prendergast, for Defendants- Appellees Prodigy Properties, Jeffrey S. Lane, April L. Lane and Zachary D. Prendergast.

2 OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Plaintiff-appellant Marcus Fontain appeals from the judgments of the

Hamilton County Court of Common Pleas, which dismissed his second amended

complaint against defendants-appellees Harjinder Sandu, Jasreen Sandu, H&R

Cincy Properties, LLC, Jeffrey Lane, April Lane, Prodigy Properties, LLC, Brian

O’Connell and Zachary Prendergast. For the following reasons, we affirm the

judgments of the trial court.

Background and Procedural History

Case No. A-1705644

{¶2} In October of 2017, a complaint was filed against plaintiff-appellant

Marcus Fontain, and other defendants, alleging illegal actions involving a

condominium association. Plaintiffs in that action moved for the appointment of a

receiver to take control of the association and manage the property during the

litigation. On August 10, 2018, the trial court in that case appointed Prodigy

Properties as the receiver. In relevant part, the entry stated:

Except for an act of gross negligence or willful misconduct, the

Receiver and all persons engaged by or employed by the Receiver shall

not be liable for any loss or damage incurred by the [association], or

any other person, by reason of any action or omission by the Receiver

or any person engaged or employed by the Receiver in connection with

the discharge of the Receiver’s duties and responsibilities in this

matter. No person or entity may file suit against the Receiver, its

employees, agents, or its attorneys, or take any action against the

Receiver or the Receiver’s bond, without first obtaining an order of this

Court permitting the suit or action upon motion and an evidentiary

3 OHIO FIRST DISTRICT COURT OF APPEALS

hearing; provided, however, that no prior court order is required to file

a motion in this action to enforce the provisions of this Order or any

other order of this Court in this action.

{¶3} Shortly after the receiver was appointed, the parties entered into a

settlement agreement. As part of the settlement agreement, the parties agreed that

the receivership would end on February 11, 2019. The receiver was not a party to this

agreement. Subsequently, the trial court entered an order on September 26, 2018,

dismissing all claims against all defendants, except for the claims against Cinvexco,

LLC. The trial court’s entry expressly left those claims pending. The entry also

stated:

In addition, the Order granting Plaintiff’s Motion for

Appointment of a Receiver, entered on August 10, 2018, shall remain

in effect to and including February 11, 2019, at which time the Receiver

shall make his final report to the Court, and the parties shall submit to

the Court a Final Entry.

{¶4} The plaintiffs and the receiver subsequently filed respective motions

to extend the receivership. On February 13, 2019, the trial court extended the

receivership “until further order of the court.” The trial court ultimately terminated

the receivership in its final entry on September 12, 2019. In relevant part, the entry

stated:

The court finds that all of the actions and inactions of the

Receiver, as well as the actions and inactions of its employees, agents,

contractors, consultants, accountants, and attorneys, in preserving,

managing, and administering the Receivership were consistent with

and within the scope of the powers and duties of the Receiver under

4 OHIO FIRST DISTRICT COURT OF APPEALS

R.C. Chapter 2735, this Court’s orders, and Ohio law generally. The

Court further finds that all of the actions and inactions of the Receiver,

as well as the actions and inactions of its employees, agents,

contractors, consultants, accountants, and attorneys, in preserving,

managing, and administering the Receivership, were proper,

reasonable, necessary, and were of direct benefit to the Receivership

and all parties to this action. The court further finds that the Receiver,

as well as its employees, agents, contractors, consultants, accountants,

and attorneys, have acted in good faith, with all due ordinary care, and

consistent with sound business judgment, in all respects concerning

the Receivership.

{¶5} On October 9, 2019, defendants in that action appealed the trial court’s

final entry, arguing only that the trial court erred in requiring the dismissed

defendants to pay the costs of the receiver incurred after February 11, 2019.1 The

assignment of error was sustained, and the cause was remanded to the trial court to

reassess fees. For ease of reading, this cause will be referred to as the “receivership

action.”

The Current Action

{¶6} On March 12, 2019, after the trial court extended the receivership but

before the entry of final judgment in the receivership action, Fontain filed a

complaint and initiated the present case. The complaint was filed against Harjinder

Sandhu, Jasreen Sandhu, H&R Cincy Properties, LLC, Jeffrey Lane, April Lane,

Prodigy Property, LLC, Brian O’Connell, Zachary Prendergast, and “Does 1-11.”

1 H&R Cincy Properties, LLC v. Fontain, 1st Dist. Hamilton Nos. C-190574, C-190575, C-190583 and C-190584,

.

5 OHIO FIRST DISTRICT COURT OF APPEALS

Harjinder Sandhu and H&R Cincy Properties, LLC, were both plaintiffs in the prior

action. Jasreen Sandhu is the wife of Harjinder Sandhu, and Brian O’Connell

represented the plaintiffs in the receivership action. Prodigy Properties, LLC, was

the receiver appointed in the receivership action. Jeffrey Lane and April Lane are

husband and wife and are employees of the receiver. Zachary Prendergast is the

attorney for the receiver.

{¶7} The complaint alleged claims for (1) fraud, (2) breach of written

contract, (3) breach of implied contract, (4) breach of implied covenant of good faith

and fair dealing, (5) unjust enrichment, (6) an accounting, (7) breach of fiduciary

duty, (8) abuse of process, (9) negligence, (10) fraudulent concealment, (11)

defamation, (12) civil conspiracy, (13) collusion, (14) malicious prosecution, (15)

inducing breach of contract, (16) intentional interference with contractual relations,

(17) breach of the implied covenant of good faith, (18) aiding and abetting a breach of

fiduciary duty, (19) engaging in self-dealing transactions, and (20) declaratory

judgment and injunctive relief.

{¶8} On March 18, 2019, Fontain filed an amended complaint against the

same defendants with the same claims. On April 3, 2019, Fontain filed a second

amended complaint.2

{¶9} Harjinder Sandhu, Jasreen Sandhu, H&R Cincy Properties, LLC, and

Brian O’Connell (the “Sandhu defendants”) filed a motion to dismiss the second

amended complaint on May 8, 2019, arguing that the complaint was an

impermissible collateral attack on the receivership action. Prodigy Properties, LLC,

2 The second amended complaint added three new defendants and three new claims related to those defendants. Those same three defendants were later voluntarily dismissed from the action and are not involved in this appeal.

6 OHIO FIRST DISTRICT COURT OF APPEALS

Jeffrey Lane, April Lane, and Zachary Prendergast (the “receiver defendants”) filed a

motion to dismiss the second amended complaint on May 14, 2019, arguing that

Ohio law prevented Fontain from filing suit against the receiver and its agents

without leave of the appointing court. Fontain filed a combined response to the

motions to dismiss on June 3, 2019.

{¶10} The Sandhu defendants and the receiver defendants filed a

supplemental joint memorandum in support of their respective motions to dismiss

on November 27, 2019. The memorandum asked the court to grant the motions to

dismiss or, alternatively, to stay the proceedings pending the appeal in the

receivership action. Fontain filed a request for an extension of time to file a response

on December 11, 2019.

{¶11} On December 13, 2019, without ruling on Fontain’s motion for an

extension of time to file a response, the trial court entered an order granting the

receiver defendants’ motion to dismiss, finding that the claims constituted a

collateral attack on the judgment entered in the receivership action and finding that

the claims were barred because Fontain failed to seek leave from the appointing

court to file suit against the receivers. That same day, the trial court entered an order

granting the Sandhu defendants’ motion to dismiss, finding that the claims

constituted a collateral attack on the judgment entered in the receivership action.

{¶12} Fontain filed a notice of appeal with this court on January 10, 2020.

Subsequently, Fontain filed a motion for relief from judgment under Civ.R. 60(B) in

the trial court on May 4, 2020. Consequently, this court remanded the cause to the

trial court to consider the motion. On August 25, 2020, the trial court entered an

order denying the motion.

7 OHIO FIRST DISTRICT COURT OF APPEALS

Law and Analysis

Nonconforming Brief Regarding Certain Assignments of Error

{¶13} “ ‘It is well established that pro se litigants are presumed to have

knowledge of the law and legal procedures and that they are held to the same

standard as litigants who are represented by counsel.’ ” State ex rel. Fuller v.

Mengel,

,

,

, ¶ 10, quoting Sabouri

v. Ohio Dept. of Job and Family Servs.,

,

(10th Dist. 2001). Pro se appellants are required to comply with the rules of practice

and procedure just like members of the bar. Curry v. Mansfield, 5th Dist. Richland

No. 2020 CA 0005,

, quoting Hardy v. Belmont Correctional

Inst., 10th Dist. Franklin No. 06AP-116,

. Fontain raises 12

assignments of error for our review in this pro se appeal; however, several of the

assignments of error fail to conform to the Ohio Rules of Appellate Procedure. In the

interest of fairness and justice, we will entertain all cognizable arguments presented.

However, some of the assignments of error will not be addressed for the ensuing

reasons.

{¶14} In his fifth assignment of error, Fontain merely asserts general

statements regarding alleged actions in the prior receivership case. He fails to

present any cognizable argument of error by the trial court in this case. An appellate

court may disregard an assignment of error presented for review “if the party raising

it fails to identify in the record the error on which the assignment of error is based.”

App.R. 12(A)(2); App.R. 16(A); see Smith v. Wayne Cty. Dept. of Human Servs., 9th

Dist. Wayne No. 02CA0013,

, ¶ 40. Therefore, this assignment of

error will be disregarded.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶15} In his eighth assignment of error, Fontain argues that appellees’

motions to dismiss in this case amounted to a collateral attack on the receivership

court’s judgment. However, he fails to list the reasons in support of his contentions,

with citations to authorities, statutes, and parts of the record on which he relies, as

required by App.R. 16(A)(7). While he cites to authority that states generally what a

collateral attack is, he does not apply the facts in this case to that authority to show

how the doctrine would apply to the motions as he claims. The appellant has the

burden on appeal. Pietrangelo v. Lorain Cty. Pr. & Pub. Co.,

,

(9th Dist.), citing State v. Stevenson, 9th Dist. Summit No. 24408,

, ¶ 21. An appellate court will not create an argument in support of

an assignment of error where an appellant fails to develop one. (Citations omitted.)

State v. Franks,

,

(9th Dist.). Therefore, we

decline to address this assignment of error.

{¶16} In the eleventh assignment of error, Fontain lists several motions filed

with the court below that never received rulings and asserts that the trial court

committed prejudicial error by not ruling on those motions. Initially, we note that

we presume a court denied a motion if it fails to rule upon it. (Citation omitted.) In

re C. Children, 1st Dist. Hamilton Nos. C-190650 and C-190682,

. Additionally, Fontain failed to set forth any argument as to why the denial of

these motions was improper or prejudicial. As discussed above, an appellate court

will not create an argument in support of an assignment of error where an appellant

fails to develop one.

. Therefore, we decline to address this

assignment of error.

{¶17} Fontain’s second, third, fourth, sixth and seventh assignments of error

essentially argue in some general way that the trial court erred in granting the

9 OHIO FIRST DISTRICT COURT OF APPEALS

appellees’ respective motions to dismiss all the claims against them. We find a

somewhat cognizable argument as to why the trial court erred in dismissing the

claims against the receiver defendants and will attempt to address that argument

below. However, we decline to address any argument that the trial court erred in

granting the Sandhu defendants’ motion to dismiss. Much like the previously

discussed assignments of error, Fontain failed to develop any argument for why the

court erred in dismissing the claims against those defendants. Fontain only asserted

a general allegation that the filed motion did not meet the requirements for dismissal

under Civ.R. 12(B)(6). Fontain’s complaint contained 19 claims that would apply to

at least one of the Sandhu defendants, but he failed to make any argument as to why

any of these specific claims would not be barred by the collateral-attack doctrine as

found by the trial court. Thus, Fontain failed to list the specific reasons in support of

his contentions, with citations to the authorities, statutes, and parts of the record on

which he relies, as required by App.R. 16(A)(7).

{¶18} Again, it is the appellant’s burden to affirmatively demonstrate error

on appeal. (Citation omitted.) Village of South Russel v. Upchurch, 11th Dist.

Geauga Nos. 2001-G-2395 and 2001-G-2396,

, ¶ 10. “It is not the

duty of an appellate court to search the record for evidence to support an appellant’s

argument as to any alleged error.” (Citations omitted.) State v. Watson,

,

(12th Dist. 1998). We may disregard any

assignment of error that fails to comply with App.R. 16(A)(7). Parkman Properties,

Inc. v. Tanneyhill, 11th Dist. Trumbell No. 2007-T-0098,

,

citing Village of South

. Therefore, we disregard any assignment of

error claiming the trial court erred in dismissing the claims against the Sandhu

defendants.

10 OHIO FIRST DISTRICT COURT OF APPEALS

First Assignment of Error

{¶19} In his first assignment of error, Fontain essentially argues that the trial

court exceeded its authority in considering matters outside the record and taking

judicial notice of the receivership action, and that, by impermissibly considering

matters outside the pleadings, the trial court converted the motions to dismiss to

motions for summary judgment without notice to the parties.

{¶20} “While a trial court ordinarily errs when it considers matters outside

the pleadings when ruling on a Civ.R. 12(B)(6) [motion to dismiss], courts have

applied an exception when the outside evidence consists of court documents readily

available online.” Varney v. Allen, 4th Dist. Ross No. 16CA3543,

, citing Draughon v. Jenkins, 4th Dist. Ross No. 16CA3528,

, ¶ 26.

Additionally, courts may take judicial notice of appropriate matters in determining a

Civ.R. 12(B)(6) motion without converting it to a summary-judgment motion. See

State ex rel. Everhart v. McIntosh,

,

,

; see also State ex rel. Scott v. Cleveland,

, 2006-Ohio-

6573,

, ¶ 26; State ex rel. Neff v. Corrigan,

,

(1996).

{¶21} Thus, the trial court was permitted to consider the documents from the

receivership action when ruling on the motions to dismiss and, in doing so, did not

convert the motions to motions for summary judgment. Therefore, this assignment

of error is overruled.

Assignments of Error Regarding Claims Against the Receiver Defendants

{¶22} We review dismissals for failure to state a claim de novo. (Citation

omitted.) Zalvin v. Alyers,

,

(1st Dist.). When

considering a motion to dismiss, the court must presume all the factual allegations in

11 OHIO FIRST DISTRICT COURT OF APPEALS

the complaint are true and must make all reasonable inferences in favor of the

nonmoving party, but the court is not required to presume the truth of conclusions in

the complaint that are unsupported by factual allegations. (Citation omitted.)

It

must appear beyond doubt that the nonmoving party can prove no set of facts which

would entitle him or her to relief before the court may grant the motion to dismiss.

(Citation omitted.)

{¶23} “It is well established that a receiver ‘is appointed to maintain the

statute quo regarding the property in controversy and to safeguard said property

from being dissipated while the plaintiff is pursuing his remedy.’ ” Milo v. Curtis,

,

(9th Dist. 1994), quoting In re Gourmet Servs,

Inc.,

(Bankr.S.D.Ohio 1992). It is also well settled that “a receiver

cannot be sued, in the absence of statutory authority, without leave of the court that

appointed him.” Bancohio Nat. Bank v. Southland Lanes, Inc., 3d Dist. Seneca No.

13-87-10,

, *3 (May 12, 1998).

As court-appointed officers, receivers enjoy protections when

following courts’ orders. Some courts have classified receivers’

functions as being quasi-judicial in nature and have granted receivers

immunity for performing acts in obedience to courts’ orders. ‘Court

appointed receivers act as arms of the court and are entitled to share

the appointing judge’s absolute immunity provided that the challenged

actions are taken in good faith and within the scope of the authority

granted to the receiver.’ Other courts, including the Ohio Supreme

Court, have held that a receiver can only be sued in his or her official

capacity for actions taken under a court’s order: “His capacity * * * of *

* * being sued ‘as receiver’ * * * is plainly distinguishable from that of a

12 OHIO FIRST DISTRICT COURT OF APPEALS

personal character. * * * [S]atisfaction of judgments against him can

be obtained only from the fund in his hands as receiver as directed by

the court appointing him.”

But a receiver also has a personal duty to faithfully discharge

his or her duties and to obey the orders of the court. The receiver acts

in a fiduciary capacity and must use ordinary care in administering the

assets of the corporation. If the receiver exceeds the authority granted

by the court or fails to use ordinary care, the general rule is that he or

she may be sued in a personal capacity. This proposition, which

surprisingly has not received much attention in Ohio, is general

hornbook law.

(Citations omitted.) INF Ent., Inc. v. Donnellon,

,

(1st Dist. 1999).

{¶24} Fontain did not seek leave of the appointing court to file his claims

against the receiver. Additionally, the trial court’s final entry in the receivership case

determined that the actions of the receiver, its employees, agents, contractors,

consultants, accountants, and attorneys were (1) consistent with and within the

scope of the receiver’s powers and duties, (2) proper, reasonable, necessary, and of

direct benefit to the receivership and all parties to the action, and (3) in good faith

with all due ordinary care, and consistent with sound business judgment. Therefore,

any subsequent claims against the receiver, its employees, or attorneys would be a

collateral attack on the trial court’s final judgment.

{¶25} The Supreme Court has described a collateral attack as “ ‘an attempt to

defeat the operation of a judgment in a proceeding where some new right derived

from or through the judgment is involved.’ ” (Citation omitted.) Ohio Pyro, Inc. v.

13 OHIO FIRST DISTRICT COURT OF APPEALS

Ohio Dept. of Commerce,

,

,

.

The doctrine applies to both parties and nonparties to the previous proceeding. Id.

at ¶ 35. “The objective of a collateral attack is to modify a previous judgment because

it is allegedly ineffective or flawed for some fundamental reason.” Id. at ¶ 9. Because

of the longstanding principal that judgments are meant to be final, “collateral or

indirect attacks are disfavored and * * * will succeed only in certain very limited

situations.” (Citations omitted.) Id. at ¶ 22.

In general, a collateral attack on a judgment is actually an

attack on the integrity of the judgment. The merits of the previous

judgment are not at issue in such a situation—only the fundamental

validity of the previous judgment is at issue. Consequently, the

collateral-attack doctrine contains elements of the same

considerations that come into play when considering whether a

particular judgment is void or voidable. When a judgment is issued

without jurisdiction or was procured by fraud, it is void and is subject

to collateral attack. But in the absence of those fundamental

deficiencies, a judgment is considered ‘valid’ (even if it might perhaps

have been flawed in its resolution of the merits of the case) and is

generally not subject to collateral attack.

(Citations omitted.) (Emphasis sic.) Id. at ¶ 25. Therefore, “a collateral attack on a

judgment issued by a different court in a civil case will succeed only when the first

ruling was issued without jurisdiction or was the product of fraudulent conduct.” Id.

at ¶ 37.

{¶26} Fontain appears to argue that the trial court’s September 26, 2018

order in the receivership action was a final order and therefore the court was devoid

14 OHIO FIRST DISTRICT COURT OF APPEALS

of jurisdiction to enter its September 12, 2019 order. However, the court’s entry on

September 26, 2018, expressly left the claims against Cinvexco, LLC, pending and

did not actually discharge the receiver.

In the absence of a determination that there is no just reason

for delay, any order or other form of decision, however designated,

which adjudicates fewer than all claims or the rights or liabilities of

fewer than all the parties, shall not terminate the action as to any of

the claims or parties, and the order or other form of decision is

subject to revision at any time before the entry of final judgment

adjudicating all the claims and the rights and liabilities of all the

parties.

(Emphasis added.) Civ.R. 54(B).

{¶27} Because the entry left the claims against Cinvexo, LLC, pending and

did not discharge the receiver or determine the action with respect to the assets

concerned, the order was not a final order. See Whipps v. Ryan, 10th Dist. Franklin

Nos. 10AP-167 and 10AP-168,

, ¶ 9 (“While the order approving a

receiver’s final report and approving the definitive disposition of assets is a final

appealable order, * * *, an interim report setting values or otherwise covering

ongoing administration of the assets is not.” (Citations omitted.)) Thus, the order

was interlocutory and was subject to revision at any time before the entry of final

judgment. See Civ.R. 54(B). Therefore, the court maintained its jurisdiction to enter

the February 13, 2019 and September 12, 2019 orders.

{¶28} There is also no indication in the record that the trial court’s final entry

in the receivership action was issued as the product of fraud. Fontain’s claims

against the receiver defendants directly conflict with the trial court’s final entry in

15 OHIO FIRST DISTRICT COURT OF APPEALS

the receivership action and can only be characterized as an impermissible collateral

attack on the trial court’s September 12, 2019 entry in the receivership action.

Therefore, any assignments of error asserting that the trial court erred in granting

the receiver defendants’ motion to dismiss are overruled.

Ninth Assignment of Error

{¶29} In his ninth assignment of error, Fontain argues that the doctrines of

res judicata and collateral estoppel barred defendants-appellees’ respective motions

to dismiss. “The doctrine of res judicata provides that a final judgment rendered on

the merits by a court of competent jurisdiction is a complete bar to any subsequent

action on the same claim between the parties or those in privity with them.” State ex

rel. Oliver v. Turner,

,

,

,

citing State ex rel. Jackson v. Ambrose,

,

,

, ¶ 13. Collateral estoppel, also known as issue preclusion, is

encompassed within the doctrine of res judicata. See Grava v. Parkman Twp.,

,

(1995). Res judicata is an affirmative defense.

(Emphasis added.) See Civ.R. 8(b). Thus, both doctrines upon which Fontain relies

apply to bar subsequent claims. Defendants-appellees did not assert any claims in

this case. Therefore, this assignment of error is overruled.

Tenth Assignment of Error

{¶30} In his tenth assignment of error, Fontain argues that the trial court

erred by granting the motions to dismiss without ruling on his motion for an

extension of time to file an opposition to the supplemental joint memorandum filed

by defendants-appellees on November 27, 2019.

{¶31} If a court fails to rule upon a motion, we presume the court denied it.

(Citation omitted.) In re C. Children, 1st Dist. Hamilton Nos. C-190650 and C-

16 OHIO FIRST DISTRICT COURT OF APPEALS

190682,

. The decision whether to grant or deny a motion for

an extension of time is within the sound discretion of the trial court and will not be

disturbed on appeal unless the court abused its discretion. Zanesville Bowling,

L.L.C. v. Prindle, 5th Dist. Muskingum No. CT12-0010,

. “An

abuse of discretion implies an unreasonable, arbitrary, or unconscionable attitude of

the trial court.” (Citations omitted.)

{¶32} The supplemental joint memorandum filed on November 27, 2019,

was a brief, two-page document that briefly repeated the same arguments already

presented in the previous motions. It also alerted the court that Fontain had filed an

appeal in the receivership case. The memorandum then asked the court to grant

each respective motion to dismiss or, alternatively, to stay the proceedings pending

resolution of the appeal. The memorandum did not present any new substantive

arguments that would be pertinent for Fontain to respond to. Thus, it was not

unreasonable for the trial court to deny Fontain’s motion for an extension of time to

respond. Therefore, the trial court did not abuse its discretion and this assignment

of error is overruled.

Twelfth Assignment of Error

{¶33} In his twelfth assignment of error, Fontain argues that the trial court

erred by failing to hold an evidentiary hearing on his Civ.R. 60(B) motion for relief

from judgment. A trial court abuses its discretion when it does not grant a request

for a hearing on a Civ.R. 60(B) motion only “where the movant alleges operative facts

which would warrant relief under Civ.R. 60(B).” (Citation omitted.) Soc. Natl. Bank

v. Val Halla Athletic Club & Recreation Ctr., Inc.,

,

(9th Dist. 1989). “Operative facts are those which if proven would give

rise to a meritorious defense.”

“The evidentiary materials must present operative

17 OHIO FIRST DISTRICT COURT OF APPEALS

facts and not mere general allegations to justify relief.”

citing Hornyyak v.

Brooks,

,

(8th Dist. 1984).

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.

Civ.R. 60(B).

{¶34} “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 for relief are Civ.R. 60(B)(1), (2), or (3), not more than one year

after the judgment, order, or proceedings was entered or taken.” (Citations omitted.)

GTE Automatic Elec., Inc. v. ARC Industries, Inc.,

,

(1976).

{¶35} We initially note that Fontain did not assert any arguments in his brief

to this court on what operative facts were presented to the trial court that showed he

18 OHIO FIRST DISTRICT COURT OF APPEALS

was entitled to relief from judgment under Civ.R. 60(B). In his motion to the trial

court, Fontain asserted that he was entitled to relief under Civ.R. 60(B)(3). He

asserted that defendants-appellees’ respective motions to dismiss contained

“patently false” statements to the court. More specifically, he pointed to the

following statements contained within the motions and asserted that the statements

constituted fraud on the court: (1) the allegation that the initial lawsuit remained

pending; (2) the allegation that he was seeking to relitigate an issue which was

already decided or was still before the court in the prior receivership action; (3) the

allegation that the prior case was a “receivership action”; (4) the allegation that he

was essentially asking the trial judge in the instant action to reverse the decisions of

the judge in the receivership action; (5) the allegation that his second amended

complaint was a collateral attack on the trial court’s orders in the receivership case;

(6) the allegation that he did not file a notice of appeal of the orders in the

receivership action; (7) the allegation that he is attempting to interfere with the

receivership action by filing this action; and (8) the allegation that he is enjoined

from maintaining this action because he did not obtain leave of the court in the

receivership case prior to filing it.

{¶36} These statements are legal arguments or assertions that would not

constitute fraud on the court, even if they were inaccurate. See Brunner Firm Co.

L.P.A. v. Bassard, 10th Dist. Franklin No. 07AP-867,

(“To

show fraud or misconduct, something more than a merely inaccurate legal argument

must be demonstrated.”) Thus, these assertions do not amount to operative facts

that would warrant relief under Civ.R. 60(B).

{¶37} All remaining arguments within Fontain’s motion for relief from

judgment were general arguments that the trial court erred by granting the

19 OHIO FIRST DISTRICT COURT OF APPEALS

defendants-appellees’ motions to dismiss. “It is axiomatic that Civ.R. 60(B) cannot

be used as a substitute for appeal.” (Citation omitted.) In re Complaint of

Pilkington N. Am., Inc.,

,

,

.

Thus, Fontain failed to allege operative facts in his motion for relief from judgment

that would warrant relief under Civ.R. 60(B). Therefore, the trial court did not abuse

its discretion by ruling on the Civ.R. 60(B) motion without holding a hearing.

Accordingly, this assignment of error is overruled.

Conclusion

{¶38} Having disregarded or overruled all the assignments of error, we

affirm the judgments of the trial court.

Judgments affirmed.

CROUSE and WINKLER, JJ., concur.

Please note:

The court has recorded its own entry this date.

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