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Gore v. First National Supermarkets8/31/2000
tive fact and bare assertions of law, appellant did not demonstrate that she has a meritorious defense nor that she was entitled to relief under Civ.R. 60(B). We disagree.
While the movant must do all that he can to present allegations of operative facts to demonstrate that he has a valid defense and is entitled to relief from judgment, there is no requirement that the movant submit an affidavit. Montpoint Properties, supra, citing Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 103. Indeed, while it is certainly inadvisable, a party may properly seek relief from a judgment without formally presenting any evidence at all. Sooy v. J.B. Realty (Jan. 15, 1992), Lorain App. No. 91CA005093, unreported, citing Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17. As this court stated in Kadish, Hinkle & Weibel Co., supra at 352: he movant is not required to submit supporting evidence of his defense. However, the movant's allegations must set forth the defense or his evidence must demonstrate that content exists in his allegations. Above all, his allegations must aid the trial court in its decision on the motion.
Here, appellant specifically alleged operative facts which would support a defense to the judgment and demonstrated that she was entitled to relief pursuant to Civ.R. 60(B)(5): R.C. 4123.65(C) gives her the right to withdraw her consent to any settlement agreement within thirty days after the final agreement is signed. Appellant's citation in her brief to R.C. 4123.65(C) was sufficient to apprise the trial court that appellant had a right to withdraw her consent to the settlement agreement and was, in fact, doing so. Thus, we see no need for a sworn affidavit from appellant asserting her right to withdraw her consent to the settlement agreement when that right is expressly provided for by statute. Accordingly, the trial court erred in denying appellant's Civ.R. 60(B) motion on the basis that she failed to submit an affidavit in support of her motion.
By denying appellant's Civ.R. 60(B) motion, the trial court erroneously attempted to enforce the parties' oral settlement agreement. In Gibson v. Meadow Gold Dairy (2000), 88 Ohio St.3d 201, the Supreme Court of Ohio considered whether a trial court may enforce an oral settlement of an appeal under R.C. 4123.512 between a workers' compensation claimant and a self-insured employer. The Supreme Court held that pursuant to R.C. 5123.65, settlements of claims against self-insured employers reached during the pendency of a .512 appeal are not binding until a final settlement agreement is signed by the parties and thirty days have passed thereafter. Id. at 204. Accordingly, the Supreme Court held that where a claimant reached an oral agreement with his former employer to settle his claim but then withdrew his consent and refused to execute the settlement documents, the trial court erred in sanctioning the claimant with dismissal of his case for his failure to sign and comply with the oral settlement agreement. The Supreme Court stated, the oral settlement never legally bound [the claimant] and thus could not be enforced because [the claimant] had not signed the agreement, and, moreover, would have had thirty days from signing to withdraw his written consent. Id. at 203.
Similarly, in this case, the oral agreement between appellant and appellee could not be enforced because appellant did not sign the agreement and would have had thirty days from signing to withdraw her consent. The trial court erred, therefore, in denying appellant's Civ.R. 60(B) motion for relief from judgment.
Appellee contends, however, that appellant's second motion for relief from judgment, from which appellant appeals, raised the same f
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