2022 Ohio 1175
Ohio Ct. App.2022Background
- Relator Kimani E. Ware filed a mandamus action against Cuyahoga County Clerk Nailah Byrd seeking records and attached a two‑page affidavit listing prior civil actions as required by R.C. 2969.25(A).
- This court denied the writ, concluding Ware’s affidavit failed to strictly comply with R.C. 2969.25(A) because it did not list all parties’ names for several prior cases.
- Ware filed a Civ.R. 60(B) motion claiming the court overlooked information in his affidavit and sought relief for mistake/inadvertence and "any other reason" under Civ.R. 60(B)(1) and (5).
- The affidavit attached to Ware’s 60(B) motion differed from the original: it had an extra page and added text in a different font/margins in a previously blank area, suggesting the additions were made after filing.
- The court found (1) judicial mistake is not a ground for Civ.R. 60(B)(1), (2) even if the added material were credited it corrected only one of multiple deficiencies, and (3) the new affidavit appeared surreptitiously altered.
- The motion for relief was denied as meritless and frivolous; double costs were assessed and Ware was warned he could be designated a vexatious litigator if frivolous filings continue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 60(B)(1) relief is available for alleged court oversight | Ware: court overlooked affidavit content; this was mistake/inadvertence | Court/Byrd: Civ.R. 60(B)(1) addresses parties’ mistake, not judicial error; appeal is remedy for judge’s mistake | Denied — 60(B)(1) inapplicable to claimed judicial oversight |
| Whether Civ.R. 60(B)(5) permits relief for the alleged omission | Ware: "any other reason" justifies relief because required info was present | Court: added affidavit material differs from original and even if credited it fixes only one of several statutory deficiencies | Denied — 60(B)(5) not a basis for relief here |
| Whether Ware’s affidavit complied with R.C. 2969.25(A) (listing all parties) | Ware: affidavit (or its contents) included the missing names | Byrd/Court: original affidavit did not list all party names for multiple cases; noncompliance justified denial of writ | Noncompliant — affidavit failed strict R.C. 2969.25(A) requirements |
| Whether the 60(B) motion was frivolous and sanctionable | Ware: motion sought legitimate relief | Court: motion contained demonstrably false assertions about the affidavit; additions appeared surreptitious; filing is frivolous | Motion found frivolous; double costs assessed; warning re: vexatious litigator status |
Key Cases Cited
- State ex rel. Pajestka v. Faulhaber, 50 Ohio St.2d 41 (Civ.R. 60(B) may be filed in an original action before a court of appeals)
- State ex rel. Jackson v. Ohio Adult Parole Auth., 140 Ohio St.3d 23 (articulating three‑part Civ.R. 60(B) test)
- Strack v. Pelton, 70 Ohio St.3d 172 (standard for Civ.R. 60(B) relief)
- Gold Touch v. TJS Lab, 130 Ohio App.3d 106 (Civ.R. 60(B)(1) addresses party/agent mistake, not judicial error)
- State ex rel. Ware v. Giavasis, 163 Ohio St.3d 359 (prior public‑records action involving Ware with multiple respondents)
- State ex rel. Ware v. Akron, 164 Ohio St.3d 557 (prior decision noting multiple respondents and affidavit deficiencies)