Rayess v. McNamee

[Cite as Rayess v. McNamee, 2015-Ohio-3163.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
M. BASSEM RAYESS :
: Appellate Case No. 26543
Plaintiff-Appellant :
: Trial Court Case No. 2012-CV-4284
v. :
: (Civil Appeal from Montgomery
CYNTHIA P. McNAMEE, et al. : County Common Pleas Court)
:
Defendants-Appellees :
:
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OPINION
Rendered on the 7th day of August, 2015.
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M. BASSEM RAYESS, Post Office Box 293166, Dayton, Ohio 45429
Plaintiff-Appellant, pro se
NEIL F. FREUND, Atty. Reg. No. 0012183, and LINDSAY M. JOHNSON, Atty. Reg.
No. 0077753, Freund, Freeze & Arnold, Fifth-Third Center, 1 South Main Street, Suite
1800, Dayton, Ohio 45402
Attorneys for Defendants-Appellees
.............
FAIN, J.
{¶ 1} Plaintiff-appellant M. Bassem Rayess appeals from the overruling of his
Civ.R. 60(B) motion for relief from judgment. He contends that the trial court abused its
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discretion when it overruled the motion.
{¶ 2} Because Rayess failed to demonstrate that he has a meritorious defense or
claim, or that he is entitled to relief, we conclude that the trial court did not abuse its
discretion by overruling the motion for relief. Accordingly, the order of the trial court
overruling Rayess’s motion for relief from judgment is Affirmed.
I. The Course of Proceedings
{¶ 3} In June 2012, Rayess brought this legal malpractice action against the law
firm of PIckrel, Schaeffer, and Ebeling, and attorney Cynthia McNamee. The action was
dismissed by the trial court upon its finding that the applicable statute of limitations had
run, and that there was no tolling of the statute. The trial court also overruled Rayess’s
motion for exemption from court costs.
{¶ 4} Rayess appealed. We affirmed, upholding the trial court’s conclusion that
the malpractice action was time-barred. Rayess v. McNamee, 2d Dist. Montgomery No.
25915, 2014-Ohio-2210, ¶ 23. We also held that the trial court had not abused its
discretion in denying the motion for exemption. Id., ¶ 26. Of relevance to this appeal,
our opinion stated:
Although the trial court did not recite the basis for its decision, the
trial court reasonably could have found his affidavit deficient. The August
22, 2013 affidavit alleged that Rayess had lost his job in May 2009 and was
not working. The affidavit did not address why Rayess, who holds a medical
degree, had not obtained employment in more than four years or what steps
he had taken to do so. The affidavit also acknowledged that Rayess
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received “public assistance” and had “limited savings” but did not identify
the amount of either. Under these circumstances, we cannot say the trial
court abused its discretion in denying his motion for exemption from court
costs. The fact that other courts have exempted him in the past did not
compel the trial court to do so here. The fourth assignment of error is
overruled.
Id. at ¶ 26.
{¶ 5} On June 9, 2014, Rayess moved, under Civ.R. 60(B)(5), for relief from
judgment with regard to the denial of the court-cost exemption. In his motion, he stated
that he was unaware of the deficiencies in his affidavit until the issuance of our opinion in
his appeal. He attached an affidavit to the motion for relief, in which he averred that he
was not currently working; that he had been seeking employment; that other than
household goods, a car, and “less than a thousand dollars,” he has no assets; and that he
has passed a “certifying exam” in “the field [he] is interested in.” Dkt. 4.
{¶ 6} The trial court issued an entry stating “[t]he Court denies Plaintiff’s June 9,
2014 Motion for Relief from Judgment based upon the May 23, 2014, Court of Appeals
Opinion in Case No. 25915.” Rayess then filed an “Emergency Motion for Clarification of
A Final Order,” in which he “ask[ed] the Court to state with greater specificity” the grounds
for overruling his Civ.R. 60 motion. The trial court then entered a Journal Entry stating as
follows:
On December 5, 2014, the Court denied plaintiff’s June 19, 2014,
motion for relief from judgment. The Court now responds to his December
11, 2014, emergency motion for clarification of a final order.
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Previously, the Court dismissed plaintiff’s legal-malpractice
complaint on statute of limitation grounds. The Court also denied his
motion for exemption from court costs.
In its May 23, 2014, opinion in case no. 25915, the court of appeals
denied all plaintiff’s assignments of error and affirmed the trial court’s
decision. Specifically, the appellate court ruled that the trial court did not
abuse its discretion in denying plaintiff’s motion for exemption from court
costs.
Plaintiff appealed the decision. On October 22, 2014, the Supreme
Court declined “to accept jurisdiction of the appeal pursuant to S.Ct.Pract.R
7.08(B)(4).”
Both the court of appeals and the Supreme Court have approved the
trial court decision denying plaintiff’s motion for exemption from costs. For
that reason, the Court declines to change its ruling.
{¶ 7} Rayess appeals from the order overruling his Civ.R. 60(B)(5) motion for
relief.
II. The Trial Court Did Not Err in Finding that Rayess Failed to
Demonstrate a Basis for Relief Under Civ.R. 60(B)
{¶ 8} Rayess’s sole assignment of error states as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S JUNE 9, 2014 MOTION FOR RELIEF FROM JUDGMENT.
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{¶ 9} Rayess contends that the trial court should have granted him relief from
judgment because his new affidavit, submitted with his motion, demonstrates that he
cannot afford to pay the costs.
{¶ 10} A court has discretion over the issue of whether a person is indigent, and
thus whether to waive filing fees and costs. Carter v. Elliott, 2d Dist. Clark No. 2008 CA
107, 2009-Ohio-7039, ¶ 5. The term “abuse of discretion” indicates that the trial court’s
decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 11} The Supreme Court of Ohio has held that to prevail on a motion brought
under Civ.Rule 60(B) the movant must demonstrate: (1) that the party has a meritorious
defense or claim to present if relief is granted; (2) that the party is entitled to relief under
one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) that 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.
Argo Plastic Prod. Co. v. Cleveland, 15 Ohio St.3d 389, 391, 474 N.E.2d 328 (1984); GTE
Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976).
“[A]n order denying a motion for relief from judgment is reviewed by this court under an
abuse of discretion standard.” Len–Ran, Inc. v. Erie Ins. Group, 11th Dist.
No.2006–P–0025, 2007–Ohio–4763, at ¶ 15, citing Rose Chevrolet, Inc. v. Adams, 36
Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).
{¶ 12} With regard to his motion for relief, Rayess relied upon Civ.R. 60(B)(5), “any
other reason justifying relief from the judgment.” However, in reading his motion, we
note that Rayess claimed that he was not aware that his affidavit in support of his original
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motion for exemption was inadequate until he read our opinion setting forth its
deficiencies. In short, his claim for relief from judgment was based upon his claim that he
lacked understanding of how to present his claims by affidavit. This argument indicates
that his motion for relief from judgment is more properly made pursuant to Civ.R. 60(B)(1),
“mistake, inadvertence, surprise or excusable neglect.”
{¶ 13} A majority of cases addressing this type of claim with regard to pro se
litigants “conclude that lack of counsel and ignorance of the legal system does not
constitute ‘excusable neglect.’ ” Dayton Power & Light v. Holdren, 4th Dist. Highland No.
07CA21, 2008-Ohio-5121, ¶ 12. This is because “pro se litigants are presumed to have
knowledge of the law and legal procedures and they are held to the same standard as
litigants who are represented by counsel.” Id., citations omitted. “Courts should not
generally use Civ.R. 60(B)(1) to relieve pro se litigants who are careless or unfamiliar with
the legal system.” Id., citation omitted. “Acting pro se * * * is neither excusable neglect
nor any other reason justifying relief from judgment. A party has a right to represent
himself, but if he does so, he is subject to the same rules and procedures as litigants with
counsel. If the fact that a party chose not to be represented by counsel and was
unsuccessful in pursuing his rights entitled that party to relief from judgment, every
judgment adverse to a pro se litigant could be vacated to permit a second attempt.”
Ragan v. Akron Police Dept., 9th Dist. Summitt No. 16200, 1994 WL 18641, * 3 (Jan. 19,
1994).
{¶ 14} Despite the fact that Rayess proceeded without counsel, he is charged with
knowledge of the law and legal procedure. His failure to provide an adequate affidavit
justifying a waiver of costs does not constitute excusable neglect, nor any other reason
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justifying relief from the judgment denying his motion for exemption.
{¶ 15} Furthermore, we conclude that Rayess has not established a meritorious
defense. His new affidavit attached to his motion for relief does state that his cash
assets are less than $1,000, and that he took a “certifying exam” toward pursuing a job in
January 2014. However, the affidavit also notes that he is receiving public assistance.
Again, Rayess failed to set forth the amount of that assistance. Nor does it set forth with
any specificity the reason for failing to obtain any type of employment. Thus, we
conclude that even if the trial court considered the new affidavit, the trial court would not
abuse its discretion by again denying the motion for waiver of costs.
{¶ 16} Rayess’s sole assignment of error is overruled.
III. Conclusion
Rayess’s sole assignment of error having been overruled, the order of the trial
court overruling his motion for relief from judgment is Affirmed.
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FROELICH, P.J., and HALL, J., concur.
Copies mailed to:
M. Bassem Rayess
Neil F. Freund
Lindsay M. Johnson
Hon. Michael W. Ward
(sitting for Judge Gregory F. Singer)