[Cite as Harshman Dynasty, L.L.C. v. Mason,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

HARSHMAN DYNASTY, LLC

Plaintiff-Appellee

v.

HOWARD MASON

Defendant-Appellant

Appellate Case No. 25873

Trial Court Case No. 2011-CV-3793

(Civil Appeal from (Municipal Court) ...........

OPINION

Rendered on the 21st day of March, 2014.

...........

CLIFF G. LINN, Atty. Reg. No. 0008696, 10810 Indeco Drive, Suite 1010, Cincinnati, Ohio 45241 Attorney for Plaintiff-Appellee

WORRELL A. REID, Atty. Reg. No. 0059620, 6718 Loop Road, #2, Centerville, Ohio 45459 Attorney for Defendant-Appellant

............. 2

WELBAUM, J.

{¶ 1} In this case, we are asked to decide if the trial court erred when it granted

Appellee’s unopposed motion for summary judgment. The motion relied on facts that were

deemed admitted pursuant to Civ. R. 36, based on Appellant’s failure to timely deny requests for

admissions submitted by Appellee. We are also asked to decide if the trial court abused its

discretion when it overruled Appellant’s Civ.R. 60(B) motion for relief from judgment.

{¶ 2} We conclude that the trial court did not err when it granted summary judgment

based on facts deemed admitted pursuant to Civ.R. 36. The court also did not abuse its discretion

in overruling Appellant’s Civ.R. 60(B) motion, where Appellant failed to respond to a motion for

summary judgment. Appellant’s pro se status did not constitute excusable neglect for purposes

of Civ.R. 60(B), because the same procedural rules apply to both pro se parties and litigants who

are represented by counsel. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} On August 1, 2010, Plaintiff-Appellee, Harshman Dynasty, LLC (“Harshman”),

as landlord, and The Dayton Computer Shop, LLC, as tenant, entered into a commercial lease.

Defendant-Appellant, Howard Mason, signed the lease as CEO of The Dayton Computer Shop,

LLC. Mason also personally signed an unconditional guaranty.

{¶ 4} Harshman’s complaint against Mason was filed on June 22, 2011, and was

originally defended by Mason, acting pro se. On October 14, 2011, Harshman served Mason

with requests for admissions, but Mason failed to respond. In December 2011, Harshman was

granted leave to file an amended complaint, updating the amount of rent due to $12,730.33, based 3

on the fact that unpaid rent on the lease continued to accrue.

{¶ 5} On December 28, 2011, Harshman filed a motion requesting the court to deem

certain facts to be admitted. Mason did not respond to this motion, either. Consequently, on

January 13, 2012, the trial court deemed the following facts admitted pursuant to Civ. R. 36: (1)

that Mason executed the original of the lease; (2) that Mason executed the original unconditional

personal guarantee; and (3) that Harshman’s tenant ledger regarding debits and credits to

Mason’s lease was accurate.

{¶ 6} Harshman also sought leave to file summary judgment regarding its complaint

on December 28, 2011, and the trial court granted leave on January 13, 2012. Subsequently, on

January 18, 2012, the court ordered Mason to file his response to the summary judgment motion

within 21 days. Again, Mason failed to respond.

{¶ 7} On February 16, 2012, the trial court filed an order granting the motion for

summary judgment, and awarded judgment against Mason in the amount of $12,730.03, plus

interest and costs. Mason did not respond to this order, either.

{¶ 8} Subsequently, on April 9, 2012, Mason filed a motion for relief from judgment

pursuant to Civ.R. 60(B). This time, Mason had assistance of counsel. Although the court

held a hearing on the motion on November 29, 2012, we have not been provided with a transcript

of the hearing. However, the court’s decision indicates that Mason’s counsel argued at the

hearing that Mason had meritorious defenses to present, and that Mason failed to respond to the

requests for admissions and to the motion for summary judgment because he was defending the

action pro se. There is no indication that Mason offered evidence at the Civ.R. 60(B) hearing.

Harshman argued at the hearing that Mason had failed to demonstrate excusable neglect. On 4

July 9, 2013, the trial court denied Mason’s motion for relief from judgment.

{¶ 9} Mason appeals from the denial of his motion for relief from judgment, and from

the summary judgment decision, which he claims was not properly served under Civ.R. 58(B).

II. FIRST ASSIGNMENT OF ERROR

{¶ 10} Mason’s first assignment of error states that:

The entry granting summary judgment filed on 2/16/12 which is subject to

review on this appeal, is contrary to law because there were unresolved issues of

material fact and the Appellee was not entitled to judgment as a matter of law.

{¶ 11} Under this assignment of error, Mason contends that there were genuine issues

of material fact precluding summary judgment, including the statements in his answer, which

raised issues of whether the rent was paid, whether forgery occurred, and whether Harshman

failed to mitigate its damages. Assuming for purposes of argument that Mason can challenge the

summary judgment decision despite his failure to appeal from that judgment, we note that,

pursuant to Civ.R. 36(A)(1), Mason admitted the facts pertinent to summary judgment by failing

to timely deny the requests for admissions that Harshman filed. Mason also did not respond to

Harshman’s motion of December 27, 2011, which asked the trial court to deem these facts

admitted.

{¶ 12} Notably, Mason has not challenged the trial court’s order that deemed the facts

admitted, based on Mason’s failure to timely respond to the requests for admissions.

Unanswered requests for admission are ordinarily deemed conclusively admitted for all purposes

of the action. Cleveland Trust Co. v. Willis,

,

(1985). 5

Such admissions will support a motion for summary judgment rendered against a pro se

defendant. (Citations omitted.) Great Seneca Financial Corp. v. Lee, 2d Dist. Montgomery

No. 21134,

.

{¶ 13} According to Mason, summary judgment was improper because his liability as

the guarantor is necessarily secondary to the liability of The Dayton Computer Shop, LLC, which

was the principal debtor. In support of this proposition, Mason relies on Madison Natl. Bank of

London, Ohio v. Weber,

,

(1927), which made certain distinctions

between the obligations of sureties and guarantors. Id. at 293. This argument ignores the

language of the personal guaranty, which waived any such requirements. In this regard, the

Retail Lease Agreement signed by Mason states as follows:

This Guaranty is an absolute and unconditional Guaranty of payment and

of performance. It shall be enforceable against the Guarantor without the

necessity of any suit or proceeding on Landlord’s part of any kind or nature

whatsoever against Tenant, and without the necessity of any notice of

non-payment, nonperformance, or non-observance or of any notice of acceptance

of Guaranty or of any other notice or demand to which the Guarantor might

otherwise be entitled, all of which the Guarantor hereby expressly waives; and the

Guarantor hereby expressly agrees that the validity of this Guaranty and the

obligations of the Guarantor hereunder shall in no way be terminated, affected,

diminished or impaired by reason of the assertion or the failure to assert by

Landlord against Tenant of any of the rights or remedies reserved to Landlord

pursuant to the provisions of the Lease. Doc.#12, Exhibit A, pp. 27-28. 6

{¶ 14} Under the terms of the lease agreement, Mason expressly waived the defenses

he now asserts, when he signed the Guaranty. The trial court, therefore, did not err in rendering

summary judgment in favor of Harshman.

{¶ 15} Accordingly, Mason’s first assignment of error is overruled.

III. SECOND ASSIGNMENT OF ERROR

{¶ 16} Mason’s second assignment of error states that:

The trial court’s entry denying Defendant’s motion for relief from

judgment filed on 7/18/13 was contrary to law and an abuse of discretion.

{¶ 17} Under this assignment of error, Mason contends that he is entitled to relief from

the order granting summary judgment because he had meritorious defenses to present to the

complaint. Specifically, Mason claims that he terminated the lease pursuant to the lease

provisions, and that he was not personally liable on the lease because he signed the lease in his

capacity as CEO.

{¶ 18} Mason is not entitled to Civ.R. 60(B) relief for two reasons. As an initial

matter, a litigant who fails to respond to a motion for summary judgment ordinarily may not later

litigate the issues that could have been raised in the motion. See Pittsburgh Press Co. v.

CabinetPak Kitchens of Columbus, Inc.,

,

(10th

Dist. 1984); Huegel v. Trumbull Mem. Hosp., 11th Dist. Trumbull Nos. 2002-T-0052,

2002-T-0053,

, ¶ 13; and Brigadier Constr. Servs., LLC v. JLP Glass Prods.,

Inc., 8th Dist. Cuyahoga No. 98672,

. If allowed, such practice would

“undermine the purposes of Civil Rules 56 and 60(B)” and create a ready avenue for delay. 7

Brigadier at ¶ 23.

{¶ 19} Secondly, Mason has not affirmatively demonstrated that the trial court abused

its discretion when it denied his Civ.R. 60(B) motion. Civ.R. 60(B) permits trial courts to

relieve parties from a final judgment for the following reasons: (1) mistake, inadvertence,

surprise or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation or

other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged;

or (5) any other reason justifying relief from the judgment.

{¶ 20} “To prevail on a motion brought under Civ.R. 60(B), 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 the judgment, order or proceeding was entered

or taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc.,

,

(1976), paragraph two of the syllabus.

{¶ 21} All of these requirements must be satisfied, and the motion should be denied if

any one of the requirements is not met. (Citation omitted.) Strack v. Pelton,

,

(1994), and Cincinnati Ins. Co. v. Schaub, 2d Dist. Montgomery No. 22419,

. Stated more concisely, to prevail on a Civ.R. 60(B) motion, movants

must show that they have a meritorious claim or defense to present, that they are entitled to relief

under at least one of the grounds found in Civ.R. 60(B)(1) through (5), and that the motion is

timely. Longworth v. Montgomery Cty. Treasurer, 2d Dist. Montgomery No. 25058,

. 8

{¶ 22} We review the denial of a Civ.R. 60(B) motion for an abuse of discretion. Id.

at ¶ 12. An “abuse of discretion” means “an attitude that is unreasonable, arbitrary or

unconscionable.” (Citation omitted.) Id. “ ‘It is to be expected that most instances of abuse of

discretion will result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.’ ” Id., quoting AAAA Ents., Inc. v. River Place Community

Redevelopment,

,

(1990). “ ‘A decision is unreasonable

if there is no sound reasoning process that would support that decision. It is not enough that the

reviewing court, were it deciding the issue de novo, would not have found that reasoning process

to be persuasive, perhaps in view of countervailing reasoning processes that would support a

contrary result.’ ” Ray v. Ramada Inn N., 2d Dist. Montgomery No. 25140,

, quoting AAAA Ents., Inc. at 161.

{¶ 23} Our review of the record indicates that Mason failed to demonstrate excusable

neglect for his lack of response. Mason was served with the complaint on August 19, 2011, and

represented himself pro se until April 9, 2012, after summary judgment had been granted.

Mason failed to respond to the request for admissions, the motion to deem admissions admitted,

and the motion for summary judgment, even after the trial court specifically granted Mason 21

days to respond to the summary judgment motion.

{¶ 24} Furthermore, Mason failed to contact the court at any time until he filed the

motion for relief from judgment. Mason also never filed any affidavits supporting the

allegations that comprise his defenses, at either the summary judgment stage or the Civ.R. 60(B)

stage of litigation.

{¶ 25} Significantly, Mason provided no excuse beyond his pro se status. Courts have 9

repeatedly held, however, that pro se parties are held to the same standards as members of the bar

with respect to procedural matters. See, e.g., Karnofel v. Kmart Corp., 11th Dist. Trumbull Nos.

2007-T-0036, 2007-T-0064,

, and State of Ohio, Crime Victims

Reparations Fund v. Pryor, 10th Dist. Franklin No. 07AP-90,

, citing Asset

Acceptance, LLC v. Evans, 10th Dist. Franklin No. 04AP-36,

,¶ 9.

{¶ 26} In this regard, The Tenth District Court of Appeals stated that:

“While one has the right to represent himself or herself and one may proceed into litigation as a pro se litigant, the pro se litigant is to be treated the same as one trained in the law as far as the requirement to follow procedural law and the adherence to court rules. If the courts treat pro se litigants differently, the court begins to depart from its duty of impartiality and prejudices the handling of the case as it relates to other litigants represented by counsel. * * * [S]ee, also, Jones v. Booker (1996),

,

.” Pryor at ¶ 9, quoting Justice v. Lutheran Social Servs. of Cent. Ohio, 10th Dist. Franklin No. 92AP-1153,

, *2 (April 8, 1993).

{¶ 27} In 2006, we reviewed a similar case in which a pro se defendant failed to

respond to requests for admission, the facts were deemed admitted, and summary judgment was

granted against her. In this regard, we stated that:

Although Lee [the defendant] proceeded pro se, she was subject to the

same rules as counsel and “must accept the results of [her] own mistakes and

errors.” Meyers v. First Natl. Bank of Cincinnati (1981),

,

. The consequence of her failure to respond to the request

for admissions was that there was no genuine issue of material fact as to the

validity of Great Seneca's claim. Thus, the trial court did not err in granting

summary judgment in favor of Great Seneca.

Great Seneca Fin. Corp. v. Lee, 2d Dist. Montgomery No. 21134,

. 10

{¶ 28} Mason is likewise held to the same standards as other litigants. Because Mason

failed to demonstrate excusable neglect, the trial court did not abuse its discretion in refusing to

grant the Civ.R. 60(B) motion for relief from judgment. Accordingly, the second assignment of

error is overruled.

IV. Conclusion

{¶ 29} All of Mason’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

.............

FROELICH, P.J., and HALL, J., concur.

Copies mailed to:

Cliff G. Linn Worrell A. Reid Hon. Carl Sims Henderson