Harshman Dynasty, L.L.C. v. Mason , 2014 Ohio 1108 ( 2014 )

[Cite as Harshman Dynasty, L.L.C. v. Mason, 2014-Ohio-1108.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
HARSHMAN DYNASTY, LLC
Plaintiff-Appellee
v.
HOWARD MASON
Defendant-Appellant
Appellate Case No. 25873
Trial Court Case No. 2011-CV-3793
(Civil Appeal from
(Municipal Court)
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OPINION
Rendered on the 21st day of March, 2014.
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CLIFF G. LINN, Atty. Reg. No. 0008696, 10810 Indeco Drive, Suite 1010, Cincinnati, Ohio 45241
Attorney for Plaintiff-Appellee
WORRELL A. REID, Atty. Reg. No. 0059620, 6718 Loop Road, #2, Centerville, Ohio 45459
Attorney for Defendant-Appellant
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WELBAUM, J.
{¶ 1} In this case, we are asked to decide if the trial court erred when it granted
Appellee’s unopposed motion for summary judgment. The motion relied on facts that were
deemed admitted pursuant to Civ. R. 36, based on Appellant’s failure to timely deny requests for
admissions submitted by Appellee. We are also asked to decide if the trial court abused its
discretion when it overruled Appellant’s Civ.R. 60(B) motion for relief from judgment.
{¶ 2} We conclude that the trial court did not err when it granted summary judgment
based on facts deemed admitted pursuant to Civ.R. 36. The court also did not abuse its discretion
in overruling Appellant’s Civ.R. 60(B) motion, where Appellant failed to respond to a motion for
summary judgment. Appellant’s pro se status did not constitute excusable neglect for purposes
of Civ.R. 60(B), because the same procedural rules apply to both pro se parties and litigants who
are represented by counsel. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} On August 1, 2010, Plaintiff-Appellee, Harshman Dynasty, LLC (“Harshman”),
as landlord, and The Dayton Computer Shop, LLC, as tenant, entered into a commercial lease.
Defendant-Appellant, Howard Mason, signed the lease as CEO of The Dayton Computer Shop,
LLC. Mason also personally signed an unconditional guaranty.
{¶ 4} Harshman’s complaint against Mason was filed on June 22, 2011, and was
originally defended by Mason, acting pro se. On October 14, 2011, Harshman served Mason
with requests for admissions, but Mason failed to respond. In December 2011, Harshman was
granted leave to file an amended complaint, updating the amount of rent due to $12,730.33, based
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on the fact that unpaid rent on the lease continued to accrue.
{¶ 5} On December 28, 2011, Harshman filed a motion requesting the court to deem
certain facts to be admitted. Mason did not respond to this motion, either. Consequently, on
January 13, 2012, the trial court deemed the following facts admitted pursuant to Civ. R. 36: (1)
that Mason executed the original of the lease; (2) that Mason executed the original unconditional
personal guarantee; and (3) that Harshman’s tenant ledger regarding debits and credits to
Mason’s lease was accurate.
{¶ 6} Harshman also sought leave to file summary judgment regarding its complaint
on December 28, 2011, and the trial court granted leave on January 13, 2012. Subsequently, on
January 18, 2012, the court ordered Mason to file his response to the summary judgment motion
within 21 days. Again, Mason failed to respond.
{¶ 7} On February 16, 2012, the trial court filed an order granting the motion for
summary judgment, and awarded judgment against Mason in the amount of $12,730.03, plus
interest and costs. Mason did not respond to this order, either.
{¶ 8} Subsequently, on April 9, 2012, Mason filed a motion for relief from judgment
pursuant to Civ.R. 60(B). This time, Mason had assistance of counsel. Although the court
held a hearing on the motion on November 29, 2012, we have not been provided with a transcript
of the hearing. However, the court’s decision indicates that Mason’s counsel argued at the
hearing that Mason had meritorious defenses to present, and that Mason failed to respond to the
requests for admissions and to the motion for summary judgment because he was defending the
action pro se. There is no indication that Mason offered evidence at the Civ.R. 60(B) hearing.
Harshman argued at the hearing that Mason had failed to demonstrate excusable neglect. On
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July 9, 2013, the trial court denied Mason’s motion for relief from judgment.
{¶ 9} Mason appeals from the denial of his motion for relief from judgment, and from
the summary judgment decision, which he claims was not properly served under Civ.R. 58(B).
II. FIRST ASSIGNMENT OF ERROR
{¶ 10} Mason’s first assignment of error states that:
The entry granting summary judgment filed on 2/16/12 which is subject to
review on this appeal, is contrary to law because there were unresolved issues of
material fact and the Appellee was not entitled to judgment as a matter of law.
{¶ 11} Under this assignment of error, Mason contends that there were genuine issues
of material fact precluding summary judgment, including the statements in his answer, which
raised issues of whether the rent was paid, whether forgery occurred, and whether Harshman
failed to mitigate its damages. Assuming for purposes of argument that Mason can challenge the
summary judgment decision despite his failure to appeal from that judgment, we note that,
pursuant to Civ.R. 36(A)(1), Mason admitted the facts pertinent to summary judgment by failing
to timely deny the requests for admissions that Harshman filed. Mason also did not respond to
Harshman’s motion of December 27, 2011, which asked the trial court to deem these facts
admitted.
{¶ 12} Notably, Mason has not challenged the trial court’s order that deemed the facts
admitted, based on Mason’s failure to timely respond to the requests for admissions.
Unanswered requests for admission are ordinarily deemed conclusively admitted for all purposes
of the action. Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 67, 485 N.E. 2d 1052 (1985).
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Such admissions will support a motion for summary judgment rendered against a pro se
defendant. (Citations omitted.) Great Seneca Financial Corp. v. Lee, 2d Dist. Montgomery
No. 21134, 2006-Ohio-2123, ¶ 5.
{¶ 13} According to Mason, summary judgment was improper because his liability as
the guarantor is necessarily secondary to the liability of The Dayton Computer Shop, LLC, which
was the principal debtor. In support of this proposition, Mason relies on Madison Natl. Bank of
London, Ohio v. Weber, 117 Ohio St. 290, 158 N.E. 543 (1927), which made certain distinctions
between the obligations of sureties and guarantors. Id. at 293. This argument ignores the
language of the personal guaranty, which waived any such requirements. In this regard, the
Retail Lease Agreement signed by Mason states as follows:
This Guaranty is an absolute and unconditional Guaranty of payment and
of performance. It shall be enforceable against the Guarantor without the
necessity of any suit or proceeding on Landlord’s part of any kind or nature
whatsoever against Tenant, and without the necessity of any notice of
non-payment, nonperformance, or non-observance or of any notice of acceptance
of Guaranty or of any other notice or demand to which the Guarantor might
otherwise be entitled, all of which the Guarantor hereby expressly waives; and the
Guarantor hereby expressly agrees that the validity of this Guaranty and the
obligations of the Guarantor hereunder shall in no way be terminated, affected,
diminished or impaired by reason of the assertion or the failure to assert by
Landlord against Tenant of any of the rights or remedies reserved to Landlord
pursuant to the provisions of the Lease. Doc.#12, Exhibit A, pp. 27-28.
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{¶ 14} Under the terms of the lease agreement, Mason expressly waived the defenses
he now asserts, when he signed the Guaranty. The trial court, therefore, did not err in rendering
summary judgment in favor of Harshman.
{¶ 15} Accordingly, Mason’s first assignment of error is overruled.
III. SECOND ASSIGNMENT OF ERROR
{¶ 16} Mason’s second assignment of error states that:
The trial court’s entry denying Defendant’s motion for relief from
judgment filed on 7/18/13 was contrary to law and an abuse of discretion.
{¶ 17} Under this assignment of error, Mason contends that he is entitled to relief from
the order granting summary judgment because he had meritorious defenses to present to the
complaint. Specifically, Mason claims that he terminated the lease pursuant to the lease
provisions, and that he was not personally liable on the lease because he signed the lease in his
capacity as CEO.
{¶ 18} Mason is not entitled to Civ.R. 60(B) relief for two reasons. As an initial
matter, a litigant who fails to respond to a motion for summary judgment ordinarily may not later
litigate the issues that could have been raised in the motion. See Pittsburgh Press Co. v.
CabinetPak Kitchens of Columbus, Inc., 16 Ohio App. 3d 167, 168, 475 N.E. 2d 133 (10th
Dist.1984); Huegel v. Trumbull Mem. Hosp., 11th Dist. Trumbull Nos. 2002-T-0052,
2002-T-0053, 2003-Ohio-4364, ¶ 13; and Brigadier Constr. Servs., LLC v. JLP Glass Prods.,
Inc., 8th Dist. Cuyahoga No. 98672, 2013-Ohio-825, ¶ 23. If allowed, such practice would
“undermine the purposes of Civil Rules 56 and 60(B)” and create a ready avenue for delay.
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Brigadier at ¶ 23.
{¶ 19} Secondly, Mason has not affirmatively demonstrated that the trial court abused
its discretion when it denied his Civ.R. 60(B) motion. Civ.R. 60(B) permits trial courts to
relieve parties from a final judgment for the following reasons: (1) mistake, inadvertence,
surprise or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation or
other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged;
or (5) any other reason justifying relief from the judgment.
{¶ 20} “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 of relief are Civ.R.
60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered
or taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d
113 (1976), paragraph two of the syllabus.
{¶ 21} All of these requirements must be satisfied, and the motion should be denied if
any one of the requirements is not met. (Citation omitted.) Strack v. Pelton, 70 Ohio St.3d 172,
174, 637 N.E.2d 914 (1994), and Cincinnati Ins. Co. v. Schaub, 2d Dist. Montgomery No. 22419,
2008-Ohio-4729, ¶ 15. Stated more concisely, to prevail on a Civ.R. 60(B) motion, movants
must show that they have a meritorious claim or defense to present, that they are entitled to relief
under at least one of the grounds found in Civ.R. 60(B)(1) through (5), and that the motion is
timely. Longworth v. Montgomery Cty. Treasurer, 2d Dist. Montgomery No. 25058,
2012-Ohio-4442, ¶ 11.
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{¶ 22} We review the denial of a Civ.R. 60(B) motion for an abuse of discretion. Id.
at ¶ 12. An “abuse of discretion” means “an attitude that is unreasonable, arbitrary or
unconscionable.” (Citation omitted.) Id. “ ‘It is to be expected that most instances of abuse of
discretion will result in decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.’ ” Id., quoting AAAA Ents., Inc. v. River Place Community
Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “ ‘A decision is unreasonable
if there is no sound reasoning process that would support that decision. It is not enough that the
reviewing court, were it deciding the issue de novo, would not have found that reasoning process
to be persuasive, perhaps in view of countervailing reasoning processes that would support a
contrary result.’ ” Ray v. Ramada Inn N., 2d Dist. Montgomery No. 25140, 2012-Ohio-6226, ¶
8, quoting AAAA Ents., Inc. at 161.
{¶ 23} Our review of the record indicates that Mason failed to demonstrate excusable
neglect for his lack of response. Mason was served with the complaint on August 19, 2011, and
represented himself pro se until April 9, 2012, after summary judgment had been granted.
Mason failed to respond to the request for admissions, the motion to deem admissions admitted,
and the motion for summary judgment, even after the trial court specifically granted Mason 21
days to respond to the summary judgment motion.
{¶ 24} Furthermore, Mason failed to contact the court at any time until he filed the
motion for relief from judgment. Mason also never filed any affidavits supporting the
allegations that comprise his defenses, at either the summary judgment stage or the Civ.R. 60(B)
stage of litigation.
{¶ 25} Significantly, Mason provided no excuse beyond his pro se status. Courts have
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repeatedly held, however, that pro se parties are held to the same standards as members of the bar
with respect to procedural matters. See, e.g., Karnofel v. Kmart Corp., 11th Dist. Trumbull Nos.
2007-T-0036, 2007-T-0064, 2007-Ohio-6939, ¶ 27, and State of Ohio, Crime Victims
Reparations Fund v. Pryor, 10th Dist. Franklin No. 07AP-90, 2007-Ohio-4275, ¶ 9, citing Asset
Acceptance, LLC v. Evans, 10th Dist. Franklin No. 04AP-36, 2004-Ohio-3382,¶ 9.
{¶ 26} In this regard, The Tenth District Court of Appeals stated that:
“While one has the right to represent himself or herself and one may
proceed into litigation as a pro se litigant, the pro se litigant is to be treated the
same as one trained in the law as far as the requirement to follow procedural law
and the adherence to court rules. If the courts treat pro se litigants differently, the
court begins to depart from its duty of impartiality and prejudices the handling of
the case as it relates to other litigants represented by counsel. * * * [S]ee, also,
Jones v. Booker (1996), 114 Ohio App.3d 67, 70, 682 N.E.2d 1023.” Pryor at ¶
9, quoting Justice v. Lutheran Social Servs. of Cent. Ohio, 10th Dist. Franklin No.
92AP-1153, 1993 WL 112497, *2 (April 8, 1993).
{¶ 27} In 2006, we reviewed a similar case in which a pro se defendant failed to
respond to requests for admission, the facts were deemed admitted, and summary judgment was
granted against her. In this regard, we stated that:
Although Lee [the defendant] proceeded pro se, she was subject to the
same rules as counsel and “must accept the results of [her] own mistakes and
errors.” Meyers v. First Natl. Bank of Cincinnati (1981), 3 Ohio App.3d 209,
210, 444 N.E.2d 412. The consequence of her failure to respond to the request
for admissions was that there was no genuine issue of material fact as to the
validity of Great Seneca's claim. Thus, the trial court did not err in granting
summary judgment in favor of Great Seneca.
Great Seneca Fin. Corp. v. Lee, 2d Dist. Montgomery No. 21134, 2006-Ohio-2123, at ¶ 5.
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{¶ 28} Mason is likewise held to the same standards as other litigants. Because Mason
failed to demonstrate excusable neglect, the trial court did not abuse its discretion in refusing to
grant the Civ.R. 60(B) motion for relief from judgment. Accordingly, the second assignment of
error is overruled.
IV. Conclusion
{¶ 29} All of Mason’s assignments of error having been overruled, the judgment of the
trial court is affirmed.
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FROELICH, P.J., and HALL, J., concur.
Copies mailed to:
Cliff G. Linn
Worrell A. Reid
Hon. Carl Sims Henderson