[Cite as Haley v. Nomad Preservation,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STEPHEN T. HALEY C.A. No. 26492

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE NOMAD PRESERVATION, INC., et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV 2010 11 7619

DECISION AND JOURNAL ENTRY

Dated: January 23, 2013

BELFANCE, Judge.

{¶1} Stephen Haley appeals the judgment of the Summit County Court of Common

Pleas. For the reasons set forth below, we affirm in part and reverse in part.

I.

{¶2} The procedural history of this case is complex. Mr. Haley received a judgment

against Nomad Preservation, Inc. in an earlier action, the procedural history of which is partly

recounted in Haley v. Nomad Preservation, Inc., 9th Dist. No. 26220,

. See id.

at ¶ 2-5. Pertinent to this litigation is that the trial court in that case entered a $1.3 million

judgment in favor of Mr. Haley against Nomad. Id. at ¶ 2. The trial court also issued an order of

attachment against certain vehicles, in particular a 2005 Dodge Viper and a 2007 Hummer.

{¶3} Mr. Haley filed a complaint against multiple defendants, including Afife Makki

and Hussein Ayache. He alleged that Ms. Makki was a subsequent transferee of the 2005 Dodge 2

Viper, which had been the subject of a fraudulent transaction.1 Mr. Haley alleged that, pursuant

to R.C. Chapter 1336, he was entitled to receive a judgment against Ms. Makki equivalent to the

value of the 2005 Dodge Viper. Mr. Haley made a similar allegation against Mr. Ayache with

regard to the 2007 Hummer.

{¶4} Mr. Ayache answered the complaint, and Mr. Haley quickly moved for summary

judgment against him. Mr. Ayache moved in opposition to Mr. Haley’s motion for summary

judgment. A few weeks after filing his response to Mr. Haley’s motion for summary judgment,

Mr. Ayache filed a motion captioned “MOTION TO DISMISS DECLARATORY

JUDG[MENT] AGAINST HUSSIEN AYACHE, DEFENDANT[,]” attaching a journal entry

from the other Nomad litigation in which the trial court had determined that Mr. Ayache was an

innocent buyer under R.C. 1336.08(A) and, thus, was not liable to Mr. Haley.2 An hour after Mr.

Ayache filed his motion, the trial court, relying on the journal entry Mr. Ayache had just

submitted, simultaneously denied Mr. Haley’s motion and granted Mr. Ayache’s motion.

{¶5} Meanwhile, Ms. Makki filed a motion to dismiss Mr. Haley’s claims against her

for lack of personal jurisdiction. In the motion, Ms. Makki essentially asserted that she did not

have any contact with Ohio. The trial court granted Ms. Makki’s motion to dismiss, but Mr.

Haley moved to vacate the decision, arguing that her motion had been filed by an attorney who

was not authorized to practice law in Ohio. Determining that the attorney was not authorized to

file the motion, the trial court vacated the dismissal. Mr. Haley subsequently moved to strike

1 R.C. Chapter 1336 provides, in pertinent part, that a creditor may seek remedies against transferees who receive an asset from a debtor for less than equivalent value, including the return of the asset or a judgment against the transferee for the value of the asset. See R.C. 1336.04, 1336.07, and 1336.08. 2 “A transfer or an obligation is not fraudulent under division (A)(1) of section 1336.04 of the Revised Code against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or oblige.” R.C. 1336.08(A). 3

Ms. Makki’s motion to dismiss and also moved for default judgment against her. The trial court

granted Mr. Haley’s motion to strike the motion to dismiss but denied his motion for default

judgment, instead announcing that it would rule on a motion for summary judgment Mr. Haley

had previously filed against Ms. Makki.

{¶6} Ms. Makki never filed a response to Mr. Haley’s motion for summary judgment,

and the trial court awarded him summary judgment against her. Soon after the trial court’s

award of summary judgment, Ms. Makki moved to vacate the award, alleging that it was void for

a lack of personal jurisdiction over her. The trial court subsequently issued a journal entry in

which it sua sponte vacated its decision denying Mr. Haley’s motion for default judgment,

vacated its award of summary judgment, granted Mr. Haley’s motion for default judgment

against Ms. Makki, and denied Mr. Haley’s motion for summary judgment as moot. It also

scheduled a hearing to determine its jurisdiction over Ms. Makki.

{¶7} Following the hearing, the trial court determined that it did not have personal

jurisdiction over Ms. Makki and vacated all “previous judgments” against her. Mr. Haley

appealed, but this Court dismissed his appeal because the trial court had not entered judgment

against Ms. Makki.3 The trial court subsequently reaffirmed that it granted Ms. Makki’s motion

to vacate the judgments against her and dismissed the complaint.

{¶8} Mr. Haley again appealed, raising two assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERR[ED] AS A MATTER OF LAW BY GRANTING AFIFE MAKKI’S (“MAKKI”) MOTION TO VACATE DISMISSING APPELLANT-PLAINTIFF STEPHEN T. HALEY’S (“HALEY”) COMPLAINT

3 All of the other claims against the defendants had already been resolved via dismissal or default judgment. 4

THIRTEEN (13) MONTHS AFTER IT WAS FILED AND PROPERLY SERVED UPON MAKKI WHEN THE DEFENSE OF PERSONAL JURISDICTION WAS WAIVED PURSUANT TO CIV.R. 12(A)(B[])(H) AND THERE WAS NO FINDING OF “EXCUSABLE NEGLECT” AS REQUIRED BY CIV.R. 6(B)(2).

{¶9} In Mr. Haley’s first assignment of error, he argues that the trial court should not

have dismissed the complaint against Ms. Makki because it had personal jurisdiction over her.

We disagree.

{¶10} Whether a court has jurisdiction is a question of law that this Court reviews de

novo. State ex rel. DeWine v. 9150 Group, L.P., 9th Dist. No. 25939,

.

“Once a defendant has challenged the trial court’s personal jurisdiction over him or her, the

plaintiff bears the burden of proving jurisdiction by a preponderance of the evidence.” (Internal

quotations and citations omitted.)

{¶11} We initially note that Mr. Haley does not suggest that the trial court erred when it

determined that it did not have personal jurisdiction over Ms. Makki under R.C. 2307.382,

Ohio’s long-arm statute, or Civ.R. 4.3. See U.S. Sprint Communications Co. Ltd. Partnership v.

Mr. K’s Foods, Inc.,

(1994) (The first step in determining whether

an Ohio court has personal jurisdiction over a person who lives outside the state is determining

“whether the state’s ‘long-arm’ statute and applicable civil rule confer personal jurisdiction[.]”).

Instead, he argues that Ms. Makki waived personal jurisdiction by appearing in the action. While

Mr. Haley is correct that the issue of personal jurisdiction may be waived by a defendant

voluntarily appearing in the action and submitting to the trial court’s jurisdiction, Ms. Makki did

not do this. See Gliozzo v. Univ. Urologists of Cleveland, Inc.,

, 2007-Ohio-

3762, ¶ 13 (“The only way in which a party can voluntarily submit to a court’s jurisdiction * * * 5

is by failing to raise the defense * * * in a responsive pleading or by filing certain motions before

any pleading.”).

{¶12} Ms. Makki filed a motion to dismiss and a motion to vacate, challenging the trial

court’s jurisdiction in both motions. However, Ms. Makki’s motion to dismiss was stricken

because it was filed by an attorney who was not licensed to practice law in Ohio. Mr. Haley

appears to suggest that, because the motion to dismiss was stricken, Ms. Makki voluntarily

submitted to the trial court’s jurisdiction without challenging its jurisdiction. However, there is

no way to construe Ms. Makki’s attempt to file a motion to dismiss for lack of personal

jurisdiction as anything other than a challenge to the trial court’s jurisdiction. Thus, we cannot

conclude that Ms. Makki waived the issue of the trial court’s jurisdiction. See id. at ¶ 13.

{¶13} Accordingly, Mr. Haley’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERR[ED] AS A MATTER OF LAW BY DENYING HALEY’S MOTION FOR SUMMARY JUDGMENT AND DISMISSING THE COMPLAINT AGAINST HUSSEIN AYACHE (“AYACHE”) BASED ON A JUDGMENT ISSUED BY ANOTHER JUDGE NOT HAVING JURISDICTION TO HEAR THE ISSUE OF THE FRAUDULENT TRANSFER OF PROPERTY TO AYACHE.

{¶14} In Mr. Haley’s second assignment of error, he argues that the trial court erred in

denying his motion for summary judgment and granting Mr. Ayache’s motion to dismiss.

{¶15} We initially note that both parties were pro se. It is well-established that pro se

litigants should be granted reasonable leeway, and their motions and pleadings should be

construed liberally so as to decide the issues on the merits as opposed to technicalities. See, e.g.,

Pascual v. Pascual, 9th Dist. No. 12CA0036-M,

. “However, a pro se

litigant is presumed to have knowledge of the law and correct legal procedures so that he remains

subject to the same rules and procedures to which represented litigants are bound. He is not 6

given greater rights than represented parties, and must bear the consequences of his mistakes.”

(Internal quotations and citations omitted.)

{¶16} As we recounted in our discussion of the procedural history of the case, Mr. Haley

moved for summary judgment against Mr. Ayache, and Mr. Ayache responded in opposition.

Mr. Ayache then filed his “MOTION TO DISMISS DECLARATORY JUDG[MENT]

AGAINST HUSSEIN AYACHE, DEFENDANT[]” and submitted a journal entry from the other

case. The trial court then ruled less than an hour later, denying Mr. Haley’s motion for summary

judgment and dismissing the claim against Mr. Ayache in reliance on the journal entry submitted

by Mr. Ayache.

{¶17} Regardless of how Mr. Ayache captioned his motion, it was not a proper motion

to dismiss because it sought to have the trial court consider materials beyond the complaint.4 See

Warren v. Estate of Durham, 9th Dist. No. 25624,

(“The trial court may not

* * * rely upon any materials or evidence outside the complaint in considering a motion to

dismiss.”) (Internal quotations and citations omitted.). “Where the trial court chooses to consider

evidence or materials outside the complaint, the court must convert the motion to dismiss into a

motion for summary judgment and give the parties notice and a reasonable opportunity to present

all materials made pertinent to such motion by Civ.R. 56.” (Internal quotations and citations

omitted.)

See also Civ.R. 12(B). Accordingly, the trial court erred by dismissing Mr.

Haley’s complaint against Mr. Ayache based on materials external to the complaint.

. Moreover, the trial court was required to give him a reasonable opportunity to respond to Mr.

Ayache’s motion.

See also State v. Dalchuck, 9th Dist. No. 21422,

, ¶ 5

4 It is unclear whether Mr. Ayache intended his motion as his own motion for summary judgment or whether it was merely an attempt to supplement his opposition to Mr. Haley’s motion for summary judgment. 7

(“Until the other party has a reasonable opportunity to file a written response, there is no

reasonable consideration by the court of the issues involved.”) (Internal quotations and citations

omitted.).

{¶18} Mr. Haley’s second assignment of error is sustained.

III.

{¶19} Mr. Haley’s first assignment of error is overruled, and his second assignment of

error is sustained. On remand, the trial court should allow Mr. Haley a reasonable opportunity to

respond to Mr. Ayache’s motion. The judgment of the Summit County Court of Common Pleas

is affirmed in part and reversed in part, and the matter is remanded for further proceedings

consistent with this opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 8

Costs taxed equally to Stephen Haley and Hussein Ayache.

EVE V. BELFANCE FOR THE COURT

MOORE, P. J. BROGAN, J. CONCUR.

(Brogan, J., retired, of the Second District Court of Appeals, sitting by assignment pursuant to §6(C), Article IV, Constitution.)

APPEARANCES:

STEPHEN T. HALEY, pro se, Appellant.

AFIFE MAKKI, pro se, Appellee.

HUSSEIN A. AYACHE, pro se, Appellee.

DAVID P. BERTSCH, Attorney at Law, for Appellees.