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Emery v. Smith10/17/2005
rdingly, we find they fall short of the establishing a meritorious defense". Id. at .
{ } Although a movant is not required to support the motion with evidentiary materials, the movant must do more than make bare allegations that he or she is entitled to relief. Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 20, 665 N.E.2d 1102, citing Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564. The movant must allege operative facts "with enough specificity to allow the trial court to decide whether he or she has met that test." American Express Travel Related Servs. v. Carleton, 10th Dist. No. 02AP-1400, 2003-Ohio-5950, 9. In our view, appellee wholly failed to meet this requirement. Appellant's motion for relief from judgment made no mention whatsoever of any specific facts which would constitute a meritorious defense to the complaint, other than the generalized statement that appellant suffered soft tissue injury. This does not rise to the degree of specificity required to demonstrate the existence of a meritorious defense, for purposes of Civ.R. 60(B).
{ } Appellee presented no evidence at the hearing to further support any of its claims to a meritorious defense.
{ } Appellee's motion merely asserted a general denial of any violation of Ohio law, and he claimed to have several affirmative defenses available to him if relief was granted. While the burden on the moving party is only to allege operative facts which would constitute a meritorious defense, appellant failed to meet his burden. See Colley v. Bazell (1980), 64 Ohio St.2d 243, 247, 18 O.O.3d 442, 444-445, 416 N.E.2d 605, 608. Appellee presented absolutely no operative facts to show that he would have a meritorious defense if the trial court agreed to vacate the judgment that granted a default judgment against appellee. Therefore, we hold that the trial court abused its discretion by granting the motion for relief from judgment. Upon review, we find no meritorious defense has been advanced, and the trial court erred in granting the Civ.R. 60(B) motion.
{ } Assignment of Error II is sustained.
{ } The judgment of the Court of Common Pleas of Stark County, Ohio is hereby reversed and the case is remanded to that court for further proceedings in accordance with this opinion and the law.
By Gwin, P.J., and Hoffman, J. concur.
Farmer, J, dissents
JUDGMENT ENTRY
For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Stark County, Ohio is reversed and the case is remanded to that Court for further proceedings in accordance with this opinion and the law.
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