Kerger & Hartman, L.L.C. v. Ajami
2017 Ohio 7352
Ohio Ct. App. 9th2017Background
- Kerger & Hartman sued to collect attorney fees related to litigation over gas-station property; multiple defendants included Mohamad Ajami, RKA, attorney Norman Abood, and appellant Habib “Herbert” Howard.
- After counsel Abood and Kerger & Hartman obtained a charging-lien/priority judgment (affirmed on appeal), Howard filed Civ.R. 60(B) motions alleging fraud/misconduct by Abood.
- Howard’s first 60(B) motion (filed Dec. 2014) relied on out-of-court statements by Mohamad allegedly contradicting sworn testimony; trial court stayed the motion pending appeal.
- After appeals concluded, the trial court denied the first 60(B) motion (June 13, 2016) as based on inadmissible hearsay and lacking operative facts.
- Howard’s second 60(B) motion (filed June 20, 2016) attached a 2007-recorded telephone conversation between Howard, Abood, and Potts; the court denied it as not newly discovered and barred by res judicata, and sealed/struck the motion and transcript.
Issues
| Issue | Plaintiff's Argument (Howard) | Defendant's Argument (Abood) | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in denying Howard’s first Civ.R. 60(B) motion | Mohamad’s out-of-court statements (Oct. 30, 2014) amounted to newly discovered evidence showing Abood’s fraud | Statements are inadmissible hearsay and conflict with the record; Howard offered no operative facts | Court affirmed denial: statements were hearsay/lacked operative facts; no hearing required |
| Whether the trial court abused its discretion in denying Howard’s second Civ.R. 60(B) motion | The 2007 recorded calls newly show Abood’s fraudulent conduct and justify relief | Calls are not newly discovered (occurred in 2007); issues could have been raised earlier; motion barred by res judicata | Court affirmed denial: recording not newly discovered; res judicata barred successive 60(B); no hearing required |
| Whether the trial court abused its discretion by sealing and striking the second motion and transcript | Sealing violated Ohio public-records law; transcript should be publicly available | Filing was a successive, meritless attempt to embarrass Abood; transcript irrelevant to court’s decision | Court affirmed sealing/striking: documents were not used to render decision, had no relevance, and sealing was not an abuse of discretion |
| Whether hearings were required on the 60(B) motions | Howard requested hearings to develop allegations | Abood argued Howard offered only unsupported allegations and no operative facts warranting a hearing | Court affirmed no hearings: motions lacked operative facts supporting relief; hearings not required |
Key Cases Cited
- GTE Automatic Elec. v. Arc Indus., 351 N.E.2d 113 (Ohio 1976) (elements required to obtain relief under Civ.R. 60(B))
- Blakemore v. Blakemore, 450 N.E.2d 1140 (Ohio 1983) (abuse-of-discretion standard for appellate review)
- Harris v. Anderson, 846 N.E.2d 43 (Ohio 2006) (res judicata bars successive Civ.R. 60(B) motions based on same or raisable facts)
- State ex rel. WBNS TV, Inc. v. Dues, 805 N.E.2d 1116 (Ohio 2004) (records used by a court to render a decision are public records under R.C. 149.43)
- Boster v. C & M Servs., 639 N.E.2d 136 (Ohio Ct. App. 1994) (hearing on 60(B) required only when motion alleges operative facts that could warrant relief)
- East Ohio Gas Co. v. Walker, 394 N.E.2d 348 (Ohio Ct. App. 1979) (operative facts on 60(B) should be supported by sworn evidence)