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Costoff v. Akron General Medical Center3/5/2003
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellant, Linda Sue Costoff, administratrix of the estate of Richard L. Costoff, Sr., appeals from the judgment of the Summit County Court of Common Pleas. We affirm in part, reverse in part and remand.
I.
On March 7, 2002, appellant filed a complaint in trial court case number CV-2002-03-1396. In the complaint, appellant alleged that appellee, P.J. Agarwal, M.D., caused a wrongful death and was liable for both medical malpractice and negligence. On April 9, 2002, appellee filed an answer in which he denied each of the allegations set forth in the complaint.
On April 29, 2002, appellee filed a motion to dismiss and requested Civ.R. 11 sanctions. In the motion, appellee asserted that the complaint against him had already been fully litigated in a previous trial court case and that, therefore, the March 7th complaint was barred by res judicata, collateral estoppel, and, also, because it was frivolous pursuant to the trial court's ruling in the other trial court case. Along with the motion to dismiss, appellee attached exhibits relating to the previous trial court case. Thereafter, in the trial court's July 15, 2002 judgment entry, the trial court denied appellee's motion for Civ.R. 11 sanctions, granted appellee's motion to dismiss, and denied appellant's motion for relief from judgment pursuant to Civ.R. 60(B). Notably, in the record before this Court, there is not a motion filed by appellant pertaining to relief from judgment. In granting the motion to dismiss, the trial court referred to the record in the previous trial court case and found that it was proper to dismiss the present complaint. Appellant appealed from the July 15, 2002 judgment entered in trial court case number CV-2002-03-1396. This appeal follows.
Appellant has asserted two assignments of error; appellee has asserted a single cross-assignment of error.
II.
Appellant's First Assignment of Error
"THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT INASMUCH AS APPELLANT MET ALL THE REQUIREMENTS FOR SUCH RELIEF, OR AT A MINIMUM WAS ENTITLED TO A HEARING."
In the first assignment of error, appellant asserts that the trial court erred in denying her motion for relief from judgment pursuant to Civ.R. 60(B) and, also, in not holding an evidentiary hearing on the motion.
An appellant bears the burden of providing this Court with a record demonstrating the claimed error. App.R. 9; App.R. 10; Hildebrecht v. Kallay (June 11, 1993), 11th Dist. No. 92-L-189; Leader Mortgage Co. v. Stubbs (Nov. 19, 1992), 8th Dist. No. 61736. "Any lack of diligence of the part of an appellant to secure a portion of the record necessary to his appeal will inure to his disadvantage." State v. Johnson (Sept. 10, 1997), 9th Dist. No. 18208, citing to Rose Chevrolet v. Adams (1988), 36 Ohio St.3d 17, 19.
In the present case, although the trial court denies appellant's motion for relief from judgment in the judgment entry, neither the docketing statement nor other portions of the record include a motion for relief from judgment. Seemingly, the motion for relief from judgment was never filed in this action; rather, it appears that the motion may have been filed in the record of the previous trial court case, although we cannot be certain as we do not have that record before us.
As a motion for relief from judgment is not included as part of the record before this Court, we do not have the materials necessar
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