Cuyahoga Metro. Hous. Auth. v. Rabb

[Cite as Cuyahoga Metro. Hous. Auth. v. Rabb, 2011-Ohio-2287.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95658
CUYAHOGA METROPOLITAN HOUSING
AUTHORITY ET AL.
PLAINTIFFS-APPELLEES
vs.
CLAUDE RABB
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cleveland Municipal Court
Case No. 2008 CVG 008714
BEFORE: Sweeney, J., Stewart, P.J., and Jones, J.
RELEASED AND JOURNALIZED: May 12, 2011
ATTORNEY FOR APPELLANT
Joseph J. Straka, Esq.
Morscher Straka, L.L.C.
11711 Lorain Avenue, Suite 56
Cleveland, Ohio 44111
ATTORNEY FOR APPELLEES
Michael P. McGuire, Esq.
1441 West 25th Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-Appellant Claude Rabb (“Rabb”) appeals following the
municipal court’s denial of his second motion for relief from the judgment that
ordered his eviction from an apartment owned by Cleveland Metropolitian
Housing Authority (“CMHA”). On appeal, Rabb asserts that the trial court
abused its discretion because it is his belief that the court did not consider his
legal arguments. For the reasons that follow, we affirm.
{¶ 2} In 2008, CMHA initiated a complaint in forcible entry and
detainer against Rabb, which proceeded to a hearing that was attended by
both parties. Judgment was entered in favor of CMHA and the cause for
eviction was granted over Rabb’s objections. After he had vacated the
premises and approximately a year after entry of judgment, Rabb moved for
relief from the eviction judgment arguing that it had been satisfied pursuant
to Civ.R. 60(B)(4) by his departure from the premises. The municipal court
denied the motion, which was affirmed by this Court on appeal in Cuyahoga
Metro. Hous. Auth. v. Rabb, Cuyahoga App. No. 93561, 2010-Ohio-1870.
{¶ 3} On July 6, 2010, Rabb filed a second motion for relief from the
same eviction judgment. According to Rabb, this successive Civ.R. 60(B)
motion is “based exclusively upon facts and events which occurred prior to
and at the trial upon the first case.” The substance of the pro se motion
details facts upon which Rabb believes entitled him to judgment in his favor
on CMHA’s complaint for eviction. The motion provides no citation to law or
any legal argument with the exception of the concluding sentence, which
provides: “I am asking relief from this eviction order under Civil Rule 60(B)(5)
for these reasons.”
{¶ 4} The trial court noted that the successive motion raised the same
issue, i.e. a request to vacate the eviction order, and was “similar in
substance” to the previously filed motion. The court found that the motion did
“not raise any extraordinary meritorious grounds for relief as stated in Civ.R.
60(B).” The municipal court denied the motion finding it set forth claims that
could have been raised on appeal and were, therefore, determined by the prior
decision that had been affirmed on appeal.
{¶ 5} In his sole assignment of error Rabb contends:
{¶ 6} “The trial court erred and abused its discretion in failing to
appropriately consider and render proper judgment upon Appellant’s Motion
for Relief from Judgment under Civil Rule 60(B)(5), as it wholly
misinterpreted and/or failed to consder [sic] the legal argument supporting
Appellant’s July 9, 2010 Motion to Vacate.”
{¶ 7} We review a ruling on a Civ.R. 60(B) motion for relief from
judgment under an abuse of discretion standard. Rose Chevrolet, Inc. v.
Adams (1988), 36 Ohio St.3d 17, 520 N.E.2d 564. An abuse of discretion is
“more than an error of law or judgment; it implies that the court’s attitude is
unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (internal citations omitted).
{¶ 8} It is well settled that the doctrine of res judicata bars litigants
from reasserting arguments that were raised or could have been raised in a
prior motion to vacate. Cleveland State Univ. v. Woods, Cuyahoga App. No.
94561, 2010-Ohio-5144, ¶31, quoting, D’Agnese v. Holleran, Cuyahoga App.
No. 83367, 2004-Ohio-1795, ¶19-20, citing, Coulson v. Coulson (1983), 5 Ohio
St.3d 12, 13, 448 N.E.2d 809; see, also, Koly v. Nassif, Cuyahoga App. No.
88399, 2007-Ohio-2505, ¶7-8 (court did not abuse its discretion by denying
appellant’s successive motion for relief from judgment where no new events
occurred and no new facts were discovered between filing of the first and
second motion for relief from judgment).
{¶ 9} This is Rabb’s second attempt to obtain relief from the judgment
of eviction. He does not allege any new facts or events in the subsequent
motion and instead relies on facts that occurred prior to and at the trial of the
first cause. Accordingly, the issues he presents in his successive motion
could have been raised in the prior motion to vacate. A motion for relief from
judgment cannot be used as a substitute for a timely appeal and “the doctrine
of res judicata prevents issues from being litigated ad nauseam.” Id. at ¶6-8.
For these reasons, the trial court did not abuse its discretion by denying
Rabb’s successive Civ.R. 60(B) motion. Further, the trial court’s judgment
entry reflects that it did consider the substance of Rabb’s motion, which was
similar to the previously filed motion despite that it sought relief under
Civ.R. 60(B)(5) rather than Civ.R. 60(B)(4).
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MELODY J. STEWART, P.J., and
LARRY A. JONES, J., CONCUR