Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas, Case No.
14 CV 001227.
Elizabeth Li-Conrad, pro se, (For Plaintiff-Appellant).
T. Morrow, and James V. Aveni, Ranallo & Aveni, L.L.C.,
R. WRIGHT, J.
Appellant, Jane Elizabeth Li-Conrad, appeals the trial
court's denial of her Civ.R. 60(B) motion for relief from
judgment. She contends that the motion should have been
granted because her allegations and evidentiary materials are
sufficient to show that appellees, Christopher and Judith
Curran, committed fraud in procuring an affidavit submitted
in seeking and obtaining summary judgment. We affirm.
In March 2013, appellees sold their Lake County residence to
appellant. Thereafter, appellant discovered a drywall covered
crack in a basement wall. As a result, she brought a civil
action against appellees, their real estate agency, and their
real estate agents, asserting fraud claims, Ohio Consumer
Sales Practice Act violation, and negligent
Appellees moved for summary judgment on all claims, attaching
the affidavit of James Nemastil, a home inspector whom
appellant hired to inspect the residence before the deal was
finalized. Nemastil averred that his report to appellant
referred to possible crack problems in the basement's
southeast foundation wall.
The trial court granted appellees' motion for summary
judgment, and the separate motion of the real estate agency
and agents. Appellant appealed and we affirmed in all
respects in Li-Conrad v. Curran, 11th Dist. Lake No.
Shortly after our decision, appellant moved the trial court
for relief from judgment under Civ.R. 60(B)(3) and (B)(5).
She maintained that the Nemastil affidavit should not have
been considered because it was procured by fraud. In
furtherance, she contended that, since Nemastil acted as her
agent in conducting the inspection, appellees and their
counsel were precluded from ex parte communications with him
Appellees responded and the trial court overruled
appellant's motion. Among other reasons, the court
concluded that the challenge to the Nemastil affidavit under
60(B) is precluded from review under the doctrine of res
Appellant asserts one assignment of error for review:
"The trial court erred in denying appellant's motion
for relief from judgment as untimely."
In denying the Civ.R. 60(B) motion, the trial court gave
three reasons for its decision, including that
appellant's motion was not timely filed. In addition to
holding that appellant could not succeed on the merits of her
motion, the court also concluded that the substance of the
motion was not properly before it because her challenge to
the Nemastil affidavit is barred under res judicata. In
contesting the trial court's 60(B) ruling, appellant has
not addressed this ...