[Cite as Blount v. Smith,
2012-Ohio-595.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96991
WILLIE BLOUNT
PLAINTIFF-APPELLANT
vs.
WILLIAM H. SMITH, ESQ.
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-738533
BEFORE: Kilbane, J., Rocco, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: February 16, 2012
APPELLANT
Willie Blount, Pro se
911 Aintree Park Drive #102
Mayfield Village, Ohio 44143
ATTORNEYS FOR APPELLEE
Julie L. Juergens
Shane A. Lawson
Monica A. Sansalone
Gallagher Sharp
6th Floor - Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
MARY EILEEN KILBANE, J.:
{¶1} Plaintiff-appellant, Willie Blount (“Blount”), appeals the trial court’s
judgment denying his “motion to set aside; vacate dismissal order with prejudice and
reinstate case per [Civ.R.] 60(B)(4), 60(B)(6).” Finding no merit to the appeal, we
affirm.
{¶2} This appeal arises from a legal malpractice complaint Blount filed against
defendant-appellee, William Smith (Smith), in October 2010. In his complaint, Blount
alleges that Smith provided legal services for him in connection with his divorce. He
claims that Smith committed legal malpractice by failing to ensure that the final divorce
decree included language granting the domestic relations court continuing jurisdiction to
modify his spousal support payments and by not representing Blount’s best interest. In
February 2011, Smith moved for summary judgment, arguing that Blount filed his
complaint outside the applicable statute of limitations found in R.C. 2305.11. Blount
responded by filing a “motion for cross summary judgment.” On April 27, 2011, the trial
court stated that Blount’s motion “is, in substance, only a brief in opposition to [Smith’s]
motion for summary judgment. To the extent it can be considered a motion for summary
judgment, it is denied.” In that same order, the trial court granted Smith’s motion for
summary judgment.
{¶3} Then on May 18, 2011, Blount filed a “motion to set aside; vacate dismissal
order with prejudice and reinstate case per [Civ.R.] 60(B)(4), 60(B)(6).” Blount argued
that: (1) pro se petitions cannot be dismissed without the opportunity for the pro se
litigant to correct the petition; (2) he received no instruction from the trial court; and (3)
Smith filed for summary judgment before discovery was complete. Smith opposed, and
the trial court denied Blount’s motion on June 3, 2011.
{¶4} It is from this order that Blount appeals, raising the following five
assignments of error for review.
ASSIGNMENT OF ERROR ONE
Trial court erred when it failed to do due diligence to make sure my rights
guaranteed for the pro se litigant by the United States Constitution,
Supreme Court cases and Judicial Notice requests were not violated.
ASSIGNMENT OF ERROR TWO
Trial court erred when it granted summary judgment to defendant in
violation of [Civ.R. 56(C), Civ.R 56(F)], and journal entry instructional
rules.
ASSIGNMENT OF ERROR THREE
Trial court erred by denying appellant due process of law as guaranteed by
the First, Fifth, and Fourteenth Amendments of the United States
Constitution and Article I, Section Eleven and Sixteen of the Ohio
Constitution.
ASSIGNMENT OF ERROR FOUR
Trial court erred when it failed to consider pro se standard of review
granted [to] pro se litigants by the Supreme Court of the United States.
ASSIGNMENT OF ERROR FIVE
Trial court erred by denying my [Civ.R. 60(B)(4) motion and Civ.R.
60(B)(6) motion] for relief stating that Ohio does not recognize [Civ.R.
60(B)(6)] motions when it does for extraordinary legal situations.
{¶5} Within these assigned errors, Blount essentially argues that the trial court
violated his due process rights by: (1) failing to instruct Blount, as a pro se litigant, on
“how to repair pleadings which may have been deficient”; (2) failing to allow him to
present evidence to support his claims; (3) granting summary judgment when there had
been no discovery; and (4) granting summary judgment based on an error in the caption
of his opposition brief.
{¶6} We note that the trial court is vested with discretion in determining whether
to grant a motion for relief from judgment under Civ.R. 60(B), and that court’s ruling will
not be disturbed on appeal absent a showing of abuse of discretion. Rose Chevrolet, Inc.
v. Adams, 36 Ohio St.3d 17, 20,
520 N.E.2d 564, (1988). An abuse of discretion
“‘implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’”
Blakemore v. Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983), quoting State
v. Adams,
62 Ohio St.2d 151,
404 N.E.2d 144 (1980).
{¶7} Civ.R. 60(B) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party …
* from a final judgment, order or proceeding for the following reasons: (1)
mistake, inadvertence, surprise or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to
move for a new trial under Rule 59(B); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation or other misconduct
of an adverse party; (4) the judgment has been satisfied, released or
discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should have
prospective application; or (5) any other reason justifying relief from
judgment. The motion shall be made within a reasonable time, and for
reasons (1), (2) and (3) not more than one year after the judgment, order or
proceeding was entered or taken.
{¶8} To prevail on a Civ.R. 60(B) motion, 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 judgment, order or proceeding was entered or
taken. GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146,
351
N.E.2d 113 (1976), paragraph two of the syllabus.
{¶9} A Civ.R. 60(B) motion for relief from judgment, however, may not be used
as a substitute for a timely appeal. Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio
St.3d 128,
502 N.E.2d 605 (1986), paragraph two of the syllabus. Thus, when a party
merely reiterates arguments that concern the merits of the case and that could have been
raised on appeal, relief under Civ.R. 60(B) is not available as a substitute for appeal.
Buoscio v. Kinkopf, 8th Dist. No. 76842 (Aug. 17, 2000); Wozniak v. Tonidandel,
121
Ohio App.3d 221, 228,
699 N.E.2d 555 (8th Dist. 1997).
{¶10} In the instant case, Blount’s appeal and Civ.R. 60(B) motion he filed with
the trial court contest the trial court’s order dated April 27, 2011, which granted Smith’s
motion for summary judgment. Blount did not timely appeal that order, rather he filed a
Civ.R. 60(B) motion to vacate judgment. In that motion, Blount failed to allege or
demonstrate any circumstances arising under Civ.R. 60(B)(1)-(5) to support relief from
judgment. Thus, Blount’s motion was improperly filed as a substitute for an appeal and
the trial court correctly denied it. See Buoscio at 2 (where the plaintiff filed a complaint
against defendant for legal malpractice. The trial court awarded defendant summary
judgment and plaintiff then filed a motion for relief from judgment, arguing errors by the
trial court with respect to defendant’s motion for summary judgment. The trial court
denied plaintiff’s Civ.R. 60(B) motion and plaintiff appealed. We found that the trial
court correctly denied plaintiff’s Civ.R. 60(B) motion because plaintiff’s motion was
improperly filed as a substitute for an appeal.)
{¶11} Accordingly, Blount’s assignments of error are overruled.
{¶12} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
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.
MARY EILEEN KILBANE, JUDGE
KENNETH A. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
