IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ali Gill, :
Plaintiff-Appellant, :
No. 04AP-1353
v. :
(C.C. No. 2002-05972)
Grafton Correctional Institution, :
(REGULAR CALENDAR)
Defendant-Appellee. :
O P I N I O N
Rendered on June 21, 2005
Ali Gill
, pro se.
Jim Petro
, Attorney General, and
Tracy M. Greuel
, for
appellee.
APPEAL from the Ohio Court of Claims.
SADLER, J.
{¶1}
This is an appeal by plaintiff-appellant, Ali Gill
, from a judgment of the Ohio
Court of Claims, in which that court denied appella
nt's October 4, 2004, motion for relief
from judgment. For the reasons that follow, we aff
irm.
{¶2}
Appellant is an inmate of the Ohio Department of Re
habilitation and
Correction, and is housed by appellee, Grafton Corr
ectional Institution ("GCI"). On
November 19, 2001, appellant was injured when he fe
ll from his bunk at GCI. He
subsequently filed suit against GCI on the theory o
f negligence, claiming that GCI knew of
No. 04AP-1353
2
previously diagnosed medical conditions that requir
ed that appellant be given a bottom
bunk. GCI admitted liability and the issues of cau
sation and damages were tried before a
magistrate on June 16, 2003.
{¶3}
On June 14, 2004, the magistrate rendered a decisio
n recommending that
judgment be entered in favor of appellant in the am
ount of $1,250. The court adopted the
magistrate's decision through a judgment entry jour
nalized on August 16, 2004. Neither
party filed an objection to the magistrate's decisi
on, nor was any appeal taken from the
court's August 16, 2004 judgment entry.
{¶4}
On October 4, 2004, appellant filed a motion for re
lief from judgment,
alleging that newly discovered evidence and/or mist
ake or excusable neglect required
that the court vacate the judgment and order a new
trial. Specifically, appellant alleged
that, after the conclusion of his trial, he receive
d a letter from Elyria Memorial Hospital,
where he was treated after his fall, indicating tha
t GCI had never requested appellant's
records from the hospital.
{¶5}
He argued that this mandates a new trial because GC
I's expert witness, Dr.
Robinson, testified at trial that no causal relatio
nship existed between appellant's
maladies and his fall, and that the doctor had form
ed this opinion after reviewing all of
appellant's relevant medical records. Appellant ar
gued that the letter demonstrates that
Dr. Robinson was untruthful and perpetrated a fraud
on the court, and that a new trial
would afford him the opportunity to impeach Dr. Rob
inson's testimony with the revelation
contained in the letter.
{¶6}
The trial court rejected this argument, finding tha
t appellant had failed to
demonstrate mistake or excusable neglect in not obt
aining this information earlier. The
No. 04AP-1353
3
court also found that appellant had failed to show
that he was unavoidably prevented
from discovering this "newly discovered evidence" e
ither during pretrial discovery or
within a reasonable time after the conclusion of th
e trial. Upon denial of his motion for
relief from judgment, appellant appealed, and asser
ts four assignments of error for our
review:
FIRST ASSIGNMENT OF ERROR
The Court Erred when it failed to find the tendered
new
evidence to be: "Newly Discovered Evidence". [sic]
SECOND ASSIGNMENT OF ERROR
The Court erred when it permitted Respondent/Defend
ant
State of Ohio to get away with a fraud on the Court
.
THIRD ASSIGNMENT OF ERROR
The Court erred when it failed to give Appellant, a
lay, inmate
litigant, the benefit of liberal construction of hi
s Pleadings and
failed to apply Ohio's Civil Rule 60(B)(3) which wa
s directly on
point, and instead poked holes in his bona fide cla
im under
Rules 60(B)(1) & (2).
FOURTH ASSIGNMENT OF ERROR
The Honorable Trial Court erred by failing to ensur
e
plaintiff/Appellants Constitutionally Guaranted [si
c] right to
Equal Protection under the 14
th
Amendment to the American
Constitution. Here, through cross examination and t
he
process of the trial.
{¶7}
Appellant's first and second assignments of error a
re related and will be
addressed together. They raise the issue of the pr
opriety of the court's finding that
appellant was not entitled to relief from judgment
on either ground specified in his motion.
{¶8}
A judgment denying a motion for relief from judgmen
t pursuant to Civ.R.
60(B), will not be reversed absent an abuse of disc
retion.
Countrywide Homes Loans v.
No. 04AP-1353
4
Barclay
, 10
th
Dist. No. 04AP-170, 2004-Ohio-6359, at ¶8. Abuse
of discretion connotes
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, 5
OBR 481, 450 N.E.2d 1140. To constitute an abuse o
f discretion, "the result must be so
palpably and grossly violative of fact or logic tha
t it evidences not the exercise of will but
the perversity of will, not the exercise of judgmen
t but the defiance of judgment, not the
exercise of reason but instead passion or bias."
Keaton v. Purchase Plus Buyers Group,
Inc.
(2001), 145 Ohio App.3d 796, 805, 764 N.E.2d 1043.
{¶9}
Civ.R. 60(B) provides the method by which a party m
ay obtain relief from a
final judgment. Civ.R. 60(B) provides, in pertinen t part, as follows:
On motion and upon such terms as are just, the cour
t may
relieve a party or his legal representative from a
final
judgment, order or proceeding for the following rea
sons: (1)
mistake, inadvertence, surprise or excusable neglec
t; (2)
newly discovered evidence which by due diligence co
uld not
have been discovered in time to move for a new tria
l under
Rule 59(B); (3) fraud (whether heretofore denominat
ed
intrinsic or extrinsic), misrepresentation or other misconduct of
an adverse party; (4) the judgment has been satisfi
ed,
released or discharged, or a prior judgment upon wh
ich it is
based has been reversed or otherwise vacated, or it
is no
longer equitable that the judgment should have pros
pective
application; or (5) any other reason justifying rel
ief from the
judgment.
{¶10}
In order to prevail on a motion for relief for judg
ment, pursuant to Civ.R.
60(B), the movant must demonstrate that: (1) he has
a meritorious claim or defense; (2)
he is entitled to relief under one of the grounds s
tated in Civ.R. 60(B)(1) through (5); and
(3) his motion for relief is made within a reasonab
le 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
No. 04AP-1353
5
proceeding was entered or taken.
GTE Automatic Electric v. ARC Industries
(1976), 47
Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, paragr
aph two of the syllabus.
{¶11}
Nothing requires that a Civ.R. 60(B) motion be supp
orted by an affidavit or
other evidence given under oath.
Rose Chevrolet, Inc. v. Adams
(1988), 36 Ohio St.3d
17, 20-21, 520 N.E.2d 564. However, in order to pr
evail on a motion for Civ.R. 60(B)
relief, "[t]he
movant must establish the [GTE] requirements by ope
rative facts presented
in a form that meets evidentiary standards such as
affidavits, depositions, transcripts of
evidence, written stipulations or other evidence gi
ven under oath."
Countrywide Homes
Loans
, supra, at ¶9;
Fields Excavating, Inc. v. Welsh Electric Co.
, 10
th
Dist. No. 04AP-
150, 2005-Ohio-708, at ¶8.
{¶12}
Appellant attached to his motion for relief from ju
dgment his own affidavit in
which he averred the authenticity of the letter he
received from Elyria Memorial Hospital.
The letter, dated August 3, 2004 (over one year aft
er trial) indicates, "[p]er your inquiry
regarding any records requested by Grafton Correcti
onal Institute [sic]. No MRIs or
records have been requested directly by G.C.I." Ap
pellant argues that the letter proves
that Dr. Robinson never reviewed all of appellant's
medical records and, consequently,
the latter's testimony "was entirely fabricated, in a blatant attempt to perpetrate a fraud on
this Honorable Court." (Oct. 4, 2004 Motion for Re
lief from Judgment, at 2.)
{¶13}
We perceive no abuse of discretion in the trial cou
rt's finding that appellant
failed to demonstrate that he had a meritorious cla
im to present if relief were granted.
The only fact proven by the letter attached to appe
llant's motion is that GCI
itself
never
requested any of appellant's hospital records. Thi
s falls far short of proving, as appellant
contends, that Dr. Robinson's testimony was "entire
ly fabricated." GCI's counsel, or Dr.
No. 04AP-1353
6
Robinson himself, could have obtained appellant's c
omplete hospital record upon
presentation of a proper release. There is no alle
gation or sworn statement to the effect
that neither GCI's counsel nor Dr. Robinson possess
ed such a release, and that they
could not have obtained records themselves for the
doctor's review. Appellant has not
presented evidence that Dr. Robinson lied when he t
estified he had reviewed appellant's
complete hospital file in forming his opinion on th
e issue of causation. Accordingly,
appellant failed to meet the first prong of the
GTE
test set forth above.
{¶14}
Appellant has also failed to meet the second prong
of the GTE test because
he has not demonstrated mistake or excusable neglec
t under Civ.R. 60(B)(1), nor has he
shown that his evidence was "newly discovered" for
purposes of Civ.R. 60(B)(2).
{¶15}
The Supreme Court of Ohio has held, "where the mo
vant alleges
inadvertence and excusable neglect as grounds for r
elief from judgment under Civ.R.
60(B)(1), but does not set forth any operative fact
s to assist the trial court in determining
whether such grounds exist, the court does not abus
e its discretion in denying the motion
for relief from judgment."
Rose Chevrolet, Inc. v. Adams
(1988), 36 Ohio St.3d 17, 520
N.E.2d 564, syllabus. In appellant's case, both hi
s memorandum in support of his motion
for relief from judgment, and his affidavit attache
d thereto, are devoid of operative facts
that would assist the court in determining whether
mistake or excusable neglect resulted
in appellant not having presented at trial any info
rmation regarding the fact that GCI never
requested appellant's hospital records. Because ap
pellant did not provide any operative
facts relative to his claim of mistake or excusable
neglect, he failed to demonstrate
entitlement to relief pursuant to Civ.R. 60(B)(1).
No. 04AP-1353
7
{¶16}
In order to be "newly discovered" evidence for purp
oses of Civ.R. 60(B), the
evidence must not have been discoverable with due d
iligence at the time of the original
hearing. See Civ.R. 60(B)(2). In the present case
, the fact of whether or not GCI itself
had ever requested appellant's hospital records was
discoverable prior to trial, since GCI
would have had to make such a request long before t
he commencement of trial in order
to allow its expert to make use of the records ther
ein. Appellant fails to explain why he
could not have procured this information prior to t
he June 2003 trial and why, instead, it
took him over one year thereafter to do so.
{¶17}
Moreover, appellant could have simply gone through
each part of his
hospital record with Dr. Robinson at trial, and inq
uired whether the witness had in fact
reviewed each part thereof. In this manner, appell
ant could have determined
at trial
whether Dr. Robinson had reviewed the entire file.
Because appellant could have
determined prior to trial, or at the very latest, a
t trial, what Dr. Robinson had reviewed in
forming his opinion, appellant did not demonstrate
that he is entitled to relief from
judgment due to "newly discovered" evidence.
{¶18}
Because appellant has failed to meet the first and
second prongs of the
GTE
test for entitlement to relief from judgment pursu
ant to Civ.R. 60(B), the trial court did
not abuse its discretion in denying his motion. Ac
cordingly, appellant's first and second
assignments of error are overruled.
{¶19}
In his third assignment of error, appellant argues
that the trial court should
have construed his motion to include a request for
relief under Civ.R. 60(B)(3), which
provides relief from a final judgment obtained thr
ough fraud, even though no such
No. 04AP-1353
8
request was included in appellant's motion. He cla
ims that his status as a pro se litigant
entitles him to such interpretation of his motion.
We reject this contention.
{¶20}
Although an individual has the right to represent h
imself and may proceed
into litigation as a pro se litigant, he is require
d to follow the same procedure and court
rules as an individual trained in the law.
Justice v. Lutheran Social Services of Central
Ohio
(Apr. 8, 1993), 10
th
Dist. No. 92AP-1153. A pro se civil litigant is n
ot to be accorded
greater, or lesser, rights because of pro se status
.
McShane, Breitfeller & Witten v. Blinn
(Sept. 17, 1992), 10
th
Dist. No. 92AP-86, citing
Meyers v. First Natl. Bank
(1981), 3 Ohio
App.3d 209, 210, 3 OBR 238, 444 N.E.2d 412. Thus,
pro se civil litigants "must accept
the results of their own mistakes and errors."
Meyers
, supra, at 210.
{¶21}
Moreover, "[t]he trial court has the discretion to
consider motions as
written[.]"
State v. Johnson
(Feb. 26, 1998), 10
th
Dist. No. 97APA06-768. This is
especially true where, as here, the liberal constru
ction urged by the movant would result
in nothing more than denial of relief on yet anothe
r unmeritorious ground. Accordingly,
the trial court in the instant case did not abuse i
ts discretion in failing to construe
appellant's motion as a request for relief under Ci
v.R. 60(B)(3). For this reason,
appellant's third assignment of error is overruled.
{¶22}
In his fourth and final assignment of error, appell
ant seems to be arguing
that the trial court infringed upon his right to eq
ual protection of law, applicable to the
states through the Fourteenth Amendment to the Unit
ed States Constitution, by failing to
afford him the opportunity, through a new trial, to
cross-examine Dr. Robinson about his
review of appellant's hospital records. This argum
ent is wholly without merit, since, as we
noted above, appellant could have cross-examined Dr
. Robinson about such facts during
No. 04AP-1353
9
the trial that has already been held. Insofar as a
ppellant did not derive the full benefit of
the right to cross-examine witnesses at the trial o
f this cause, it was appellant – not the
trial court – who caused such a circumstance. Acco
rdingly, appellant's fourth assignment
of error is overruled.
{¶23}
Having overruled all of appellant's assignments of
error, we affirm the
judgment of the Ohio Court of Claims.
Judgment affirmed.
BROWN, P.J. and KLATT, J., concur.
______________