State ex rel. Ware v. Byrd

[Cite as State ex rel. Ware v. Byrd, 2022-Qhio-1175.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO EX REL.,
KIMANI E. WARE,
Relator,
No. 110865
V.
NAILAH K. BYRD, ET AL.,
Respondents.
JOURNAL ENTRY AND OPINION
JUDGMENT: MOTION DENIED
DATED: April 1, 2022
Motion for Relief from Judgment
Motion No. 552581
Appearances:
Kimani E. Ware, pro se.
ANITA LASTER MAYS, P.J.:
{11} Relator, Kimani Ware, seeks relief from this court’s judgment in State
ex rel. Ware v. Byrd, 8th Dist. Cuyahoga No. 110865, 2021-Ohio-4432. He claims
this court overlooked or ignored sections of his affidavit of prior civil actions when
we denied his claim for relief in mandamus. We deny Ware’s motion for relief from
judgment, find the motion frivolous, and impose sanctions as detailed below.
I. Background
44|2} On September 29, 2021, Ware filed a writ of mandamus seeking
certain records from respondent, Nailah K. Byrd, Cuyahoga County Clerk of Courts.
He filed an amended complaint on October 20, 2021. Along with the original
complaint, Ware filed a two-page affidavit listing his numerous prior civil actions as
required by R.C. 2969.25(A). On November 4, 2021, respondent filed a motion for
summary judgment. On November 19, 2021, Ware filed his own motion for
summary judgment and a brief in opposition to respondent’s motion. Respondent
filed a brief in opposition to Ware’s motion on December 3, 2021.
4413} On December 13, 2021, this court denied Ware’s request for writ of
mandamus, finding that his affidavit of prior civil actions failed to strictly comply
with R.C. 2969.25(A). Byrd, 8th Dist. Cuyahoga No. 110865, 2021-Ohio-4432, at
715.
{4/4} Finally, on February 15, 2022, Ware filed the instant motion for relief
from judgment. Respondent did not file any opposition to the motion.
II. Lawand Analysis
4.5} ACiv.R. 60(B) motion for relief from judgment may be appropriately
filed in an original action before a court of appeals. State ex rel. Pajestka v.
Faulhaber, 50 Ohio St.2d 41, 362 N.E.2d 263 (1977). “To prevail on a Civ.R. 60(B)
motion for relief from judgment, a movant must demonstrate (1) a meritorious claim
or defense in the event relief is granted, (2) entitlement to relief under one of the
provisions of Civ.R. 60(B)(1) through (5), and (3) timeliness of the motion.” State
ex rel. Jackson v. Ohio Adult Parole Auth., 140 Ohio St.3d 23, 2014-Ohi0-2353, 14
N.E.3d 1003, { 18, citing Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914(1994). Ware claims entitlement to relief under Civ.R. 60(B)(1) and (5): “mistake,
inadvertence, surprise or excusable neglect,” or “any other reason justifying relief
from judgment.” He claims that this court overlooked information included in an
affidavit he filed with this complaint.
{416} We previously denied Ware’s request for a writ of mandamus because
he failed to strictly comply with R.C. 2969.25(A) when he filed an affidavit of prior
civil actions that did not list all the names of parties to each prior action. Byrd, 8th
Dist. Cuyahoga No. 110865, 2021-Ohio-4432, 15. In our decision, we cited to an
example of Ware’s failure to strictly comply. Jd. at 12-13. Specifically, we pointed
to Ware’s recitation of the following case information:
State ex rel. Ware v. Giavasis, original action in mandamus, supreme
court of [OJhio, case no. 2020-0043, public records case, outcome:
judgment in favor of Giavasis.
Id. at § 12. We found that Ware failed to list all the names of the parties to this
action because there were multiple respondents named in the complaint. Id. at
(13. Ware now claims that this information for this case was in the affidavit the
whole time and this court overlooked it. He claims this was a mistake entitling him
to relief from judgment.
47+ This is not a type of claim contemplated by Civ.R. 60(B)(1). Gold
Touch v. TJS Lab, 130 Ohio App.3d 106, 110, 719 N.E.2d 629 (8th Dist.1998). See
also Hankinson v. Hankinson, 7th Dist. Mahoning No. 03 MA 7, 2004-Ohio-2480,
{ 20, citing Gold Touch at 110-111 (“a factual or legal mistake on the part of the trial
court is not the type of mistake contemplated by Civ.R. 60(B)(1)”). “Rather, the rule
is intended to address the mistake or inadvertence of parties or their agents.”
Blatt v. Meridia Health Sys., 8th Dist. Cuyahoga No. 89074, 2008-Ohio-1818, {| 10.
The rule does not apply to claimed mistakes made by a judge or court because the
remedy is an appeal, rather than relief from judgment. Therefore, Ware has not
established entitlement to relief under Civ.R. 60(B)(1).
{4|8} Ware also seeks relief from judgment under Civ.R. 60(B)(5) — any
other reason justifying relief. His claimed error allegedly committed by the court
does not fall within these parameters, but even if it did, Ware has not shown
entitlement to relief for the following reasons.
419} The affidavit included with the complaint consisted of two pages, the
first page of which is reproduced in Image 1.
AFFIDAVIT OF PRIOR CIVIL ACTIONS
OF
Kimani Ware
PURSUANT TO SECTION 2969.25(A)
| Kimani Ware first being affirmed and cautioned state upon my personal knowledge
and | arn competent to testify te the facts contained in the affidavit.
L. State ex rei. Ware y. Ferreor, original action if mandamus, fifth dist. court of appeals
case no.2019CaQ0079, public records case, outcome: case dismissed; Slate ex rel. Ware
¥. Pureval, original action in mandamus, first dist. court of appeals cage na. CL900563,
public recards case, Gutcome: case dismissed, appealed supreme ceurl of shio cuse Ag,
2020-0162, putcame: case reversed and remand back te the first dist. court af appeals,
Banding: State ex rel. Ware v. ohic dept of rehab, & carr, original action in mandamus,
tenth dist, court of appeals, case no,19,4P511, public records case, autcome: case dismissed;
State ex rel. Ware ¥. Dewine, original action in mandamus, tenth dist. court of appeals,
Cage rig. J 94P161, public records case, outeome: Judgment in favar of Dewine, appealed
Supreme court of ohio case no, 2019-0168, outcome: judgment affirmed; Srate ex rel
Ware v. Giavasis, original action in mandarnus, fifth dist. court of appeals, case ne. 20L9ca
00003, public records case, outcome: Judgment in favor of Giavasis; appealed supreme
Court of chic, case no. 2019-0824, autcome: judgment affirmed; State ex rel. Ware v. Kurt,
Original action in mandamus, ninth dist. court of appeals, case mo.29622, public records
Case, QULCOME: judgment im favor of Kurt, appealed supreme court of ohic, case no.2021-
O82, outcome: pending; Ware v. Akron police dep't, public records comp'aint, in ohio
court of cialms, case no. 2018 5S02PO, public records case, outcome: judement in faver of
Ware; State ex rel. Ware v¥, Mongmery co. derk of courts, original action in mandamus,
Supreme court of ghip, case mo. 2018-1012, public recards case, outcome: case dismissed;
Ware v. Mansfield corr. Inst., pubile records complaint, in ohio court of claims, case no.
2018-OL986PQ.publi¢ records case, outcome: judgment in favar of Ware; State ex rel. Ware
vw. Giavasls, orlginal action in mandamus, supreme court of ohla, case no. 2020-0043, public
records case, outcome: judgment in faver of Giavasis; Ware v. hamiltion co. clerk of courts,
injury complaint, In ahie court of claims, cage no. 2020-OG04BAD, Injury case, autcome:
dismissed; State ex rel, Ware v. Kelly, original action in mandamus, 11" dist. court of appeals
case no, 2020-L-043, public records case, outcome: pending; State ex rel, Ware v. Mhor,
Oviginal in mandamus, supreme court of chia, case no.2018-10L3,public records case. puteame:
dismissed; Ware v. Ohin dept of rehab. & corr, injury complaln,t In ghia caurt of clainns
case no, 2017-05452, personal injury casc, outcome: judgement in favor of Ware; State ox
rel, Ware v. Walsh et al., original action in mandamus, ninth dist. court of appeals, case no.
25244, public records case, outcome: dismissed, appealed supreme court of chia, case ne.
2019-0772, gutcome judgment affirmed; State em rel Ware v, Fankauser, original action in
Mandamus, 11 dist, court of anpeafs, case no, 2021-p-O0056, public records case, outcome:
Pending; Stuty ex rel. Ware y. Bureau of sentence computation, original action in mandamus,
[ATFIDAVIT OF PRIOR CIVIL AGLILONS PAGH 1 OF #]
Image 1
The information lacking in the affidavit cited by this court for the case State ex rel.
Ware v. Giavasis, 163 Ohio St.3d 359, 2020-Ohi0-5453, 170 N.E.3d 788, is readily
apparent. The information for this case is approximately two-thirds of the way
down the page in Image 1. No additional names of any parties are included in the
affidavit.
44/10} The affidavit attached to his motion for relief from judgment differs
from the affidavit attached to his complaint, the first page of which is also
reproduced in Image 2.
¥ Thee ete gt tase
AFFIDAVIT OF PRIOR CIVIL ACTIONS
OF
Kiman! Ware
PURSUANT TO SECTION 2969, 2504) 1-4
O4TO REVISED CODE ,
| Kirnaai Were first baing affirmed and cautioned state upon my parsonal knowladgs
erd am compecers to test.ty tc the facts cortaitec in the 2fdavit.
T.State ex rel. Ware v.Glavasls,atark mo.clerk ae courts, Flex, Stark co.pra. office,
Ferrect failbel ,ocigine! ection in neers sLpTETe court of cts, cam. AS udgient Bar
Stste ax rel-Sare v.Feran*, cigrel sqier in nandamus, “tth dis court of cppeak
case 10,2019 Cao0075, subs records case, outcome: ces= csrrissec; State ex rel. Ware
v. Sureval, origitel agi er ir mendamus, tivst dis, court of cppeale case nz. CLIO0SE3,
public records case, outcome: case dismissed, appeslad supreme coir of oho case ne.
2020-P1B2, qutccmeé: case reversed and remend back co tos tirst dist. court of appeals,
pending: State ex rel. Ware vw. cho dept cfreheb. & corr. ongiqa action in maadares,
terch dist court of anpeais, case no I9AP511 public records TAS, OUECOMe: Case disnicsed:
State ax re: Ward v. Swine, origina. acticr in mandamus, taath dist. court of appeals,
case no. LSAPL61, gubsis recoros cose, outcome: jucamentir favor of Dewioae, apgeaed
S4ITBME ti ohia casa ns. 2215-01 BS, cutcoma: jucarer+ aficmec; Stata ex rel.
Warnv.G 3, criginal action in mandamus, fia dist. cosrt of appee.s, cese no.20ica
O0007,pudlc records case, cuccome jbdgrientr raver of Siavasis: eppeciec fupr= 1
Court sPoaie, case ne 2019-0924, suttarac: ent sffirvied:; State ex rel. Ware v Kurt,
Sriginal aclion ir: mérdlerivs, ath dist. equrt : LT apps: case ng. 29822, public cacores
FE5e, GUECOM 2: edgment *n tavor cf KL t, appealed supreri2 cout of chic, taza ao.3021-
$423, ostcome: pending; ara v. Akron palice dept, pualc receres camplairs, ir cho
Tour oT claims, case no 20iaN0S502F0, piblic ecords case, outcome: judement ie favar oc
Ware; State ex cel Were v. Mongmery ca. cerk of courts, original accion in mandates,
SuUprerns2 courtof chic. case ro. 20282022, public reeosds cess, oateome: cass dism ssed:
Wera wv. Marsftield carr, Inst. gublis records comaigin«, in shio cour of caims , ceca na.
S01 8-1 SB6PC, cL bic rgcores case, otoome: “Lcgme]tt in favor of Warg; State ex rel. Were
Vv. Gigvasis, original actian in mancemus, suoreme court of oFio, cage no. 2020-0043 poblic
"SC TES GaSe, GUCCOME: jUdpment in ravor ov Siavesist Ware v. nzmicign co. clerk of ecu,
‘rjury coma.aiat, rn abo cau tof clans, casa no ACPO 4845 ury cége, Succome:
disrruskead; Stace ay ca. Ware w Kelly, sr'pinal action i mand? Ts. LL" dist. court of apasals
cage 1c, 2020-L-243, puaie records cege, cuteems: sencing; ovate ex rel, Ware v. Who,
driginal in mandates, sugreme court or ohio, casa n3.2018-1013, pubic racores cage, cutcome:
dismissed; Were. Ohio dept ofrghab. @ gore. injury cargiait,t in ghip court arclams,
cape 15, 2217-08 45/0, personal ir’ury case, cutco Te: fudzemert in favor of Ware! Stata éx
rel. Were y. Welsn et a... crigingl oct.on “1 Tandamus, north dist. court of aapezis, case ro.
29244, sublic records case, ouncomc: csmissed, appealed saaramce court of obo, case no.
2012-0772, cbtcome judgment af lsmmead; State ex rel. Were v. rankauser, arlgzinal ecticn in
Mandarnus, 14°" dist. court af appeels, case na, 2021-p-00056,public recarc’s case, tut¢ame:
Fencing; Stata ex rel. Vara v. duregy of sentens2 computation. orip-nel actiod ni mendanus,
a[ AFFIDAVIT OF PRIOR CIVIL ASTIONS 2AGR 1 OF Z]*
Image 2
The affidavit attached to the motion for relief from judgment now consists of three
pages even though it specifically indicates at the bottom of each page that it
consists of two pages. Further, the new first page includes information at the top
in a space that was previously blank. The affidavit in Image 1 does not contain the
information Ware claims the court overlooked in the affidavit attached to his
motion for relief from judgment in Image 2. This information appears to have
been added to the affidavit surreptitiously. The information is written in a
different font, with different margins, and appears in what was mostly a blank
space in the original affidavit.
{4,11} Ware has not shown that this court overlooked information that was
contained within the affidavit of prior civil actions attached to his complaint even if
this could constitute grounds for relief under Civ.R. 60(B).
44,12} Further, giving Ware every benefit of the doubt and assuming the
added information fixes the problem identified in our opinion, if the additional
information included in Image 2 was considered by the court, the result would be
the same. Ware added information this court cited as lacking from the affidavit for
only one case when multiple cases listed in the affidavit of prior civil actions failed
to include the names of all the parties to the prior actions as required by
R.C. 2969.25(A)(3). When we determined that Ware’s affidavit did not strictly
comply with R.C. 2969.25(A) and cited to the information listed for State ex rel.
Giavasis, 163 Ohio St.3d 359, 2020-Ohi0-5453, 170 N.E.3d 788, we stated that this
example “is representative of each case listed in the affidavit.” Byrd, 8th Dist.
Cuyahoga No. 110865, 2021-Ohio-4432, at 113. Ware has not managed to add
information to fix the same error related to other cases included in the affidavit.
{4| 13} Again, for instance, the opinion in State ex rel. Ware v. Walsh, 9th
Dist. Summit No. 30051, 2021-Ohio-4585, states that Ware’s complaint named two
respondents, but Ware’s affidavits of prior actions filed in the instant case do not
include the full names of either respondent — only the last name of one respondent.
Similarly, the complaint filed in State ex rel. Ware v. Akron, 164 Ohio St.3d 557,
2021-Ohio-624, 174 N.E.3d 724, named two respondents, but neither version of
Ware’s affidavit provided the name of the second respondent.
{4/14} Neither version of the affidavit of prior civil actions strictly complies
with R.C. 2969.25(A)(3). Therefore, there is no reason under Civ.R. 60(B)(1) or
60(B)(5) to grant the relief from judgment.
{4/15} This is also not the first time that a document Ware has submitted in
a court proceeding has been found to be suspect. Recently, the Supreme Court of
Ohio was faced with a court filing from Ware that caused the justices to doubt its
veracity. State ex rel. Ware v. Crawford, Slip Opinion No. 2022-Ohio-295. One
justice summarized the issue thusly:
Ware attests that he sent one version of the document; [respondent]
attests that she received a different version. Ware attests that he
mailed his version in the same envelope in which [respondent] attests
that she received her version. So, unless the document transformed
itself while in the hands of the postal service, someone isn’t telling the
truth.
Id. at § 67 (DeWine, J., dissenting). This sort of discrepancy has also occurred in
at least one other case filed by Ware. State ex rel. Ware v. Andrews, 11th Dist.
Lake No. 2020-L-043, 2021-Ohio-4257. See also State ex rel. Ware v. DeWine,
10th Dist. Franklin No. 19AP-161, 2019-Ohio-5203, { 7 (In this action, Ware
averred that he did not receive responses to his public records requests on
March 19, 2019. The court found, “we agree with the magistrate’s conclusion that
relator’s assertion does not give rise to a material factual issue as to respondent’s
compliance with the public records law, given the undisputed averment in the
affidavit of a prison employee that the institution received legal mail from
respondent, addressed to relator, on March 19, 2019.”).
{4,16} We find that Ware’s motion for relief from judgment is frivolous.
Ware’s claim that the affidavit attached to his motion for relief from judgment is the
same affidavit attached to his complaint is demonstrably false. Even if the newly
minted affidavit was originally filed with the complaint, there is still no grounds for
relief from judgment because Ware only managed to arguably correct one of
multiple instances of his failure to include all the names of the parties to his prior
actions. Pursuant to Loc.App.R. 23(A), we find the motion for relief from judgment
is frivolous and impose double costs for its filing as a sanction. This court will find
Ware to be a vexatious litigator under Loc.App.R. 23(B) should he persist in filing
frivolous motions or actions in the future.
{4,17} Double costs assessed against relator. The clerk is directed to serve
on the parties notice of this judgment and its date of entry upon the journal.
Civ.R. 58(B).
£4,181 Motion denied.
ANITA LASTER MAYS, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
EMANUELLA D. GROVES, J., CONCUR