Nancy Suon, Plaintiff-Appellee, v. Khan Mong, Defendant-Appellant.
No. 17AP-879 (M.C. No. 17CVF-12136)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 16, 2018
[Cite as Suon v. Mong, 2018-Ohio-4187.]
(ACCELERATED CALENDAR)
Rendered on October 16, 2018
On brief: Joseph L. Colburn, Jr., for appellee.
On brief: Teresa Villarreal, for appellant.
APPEAL from the Franklin County Municipal Court
BROWN, P.J.
{1} Defendant-appellant, Khan Mong, appeals from a judgment of the Franklin County Municipal Court denying his
{2} On April 12, 2017, plaintiff-appellee, Nancy Suon, filed a complaint against appellant seeking a monetary judgment for breach of a promissory note. Appellee alleged that $5,000 was currently due and owing on the note. Appellee attached a copy of the promissory note to the complaint. The note stated:
“I, Nancy Suon, agreed to loan $5,000.00 to Khan Mong November 2015. He agreed he will pay me back during the tax season in the following year. This agreement is made by the lender and the borrower.”
(Compl., Ex. A.) The note was signed, notarized, and dated November 27, 2015.
{3} On May 16, 2017, the court received a pro se letter from appellant. Appellant‘s son had drafted the letter for his father, as appellant does not read, write, or speak English. In the letter, appellant denied either borrowing money from appellee or signing a note on November 27, 2015. Appellant asserted appellee was a con artist who was trying to blackmail him. On May 22, 2017, the court ruled that the letter was an answer to the complaint.
{4} On May 31, 2017, appellee filed a motion for leave to file a motion for summary judgment. The court granted appellee‘s motion for leave, and appellee filed a motion for summary judgment on July 24, 2017. Appellee asserted in the motion the “overwhelming evidence” demonstrated appellant borrowed $5,000 from her, that he signed the promissory note, and that he failed to pay appellee pursuant to the terms of the note. (Mot. for Summ. Jgmt. at 4.) The certificate of service demonstrated the motion for summary judgment was served via regular United States mail on appellant August 8, 2017.
{5} Appellee supported the motion for summary judgment with her affidavit and the affidavit of Terry L. Howard. Appellee explained in her affidavit that appellant was the uncle of her fiancé, and that, at some time prior to November 27, 2015, appellant asked appellee if he could borrow $5,000 to invest in his son‘s business. Appellee averred the parties signed the promissory note on November 27, 2015, that Terry L. Howard notarized the note, and she then “handed Kahn Mong $5,000.00.” (Suon Aff. at ¶ 3.) Appellee averred that appellant did not repay her with his income tax refund in Spring 2016 as promised, and he ignored her demands for payment. Howard averred that he was a notary public and he notarized appellant‘s signature on the promissory note November 27, 2015. Howard incorporated the promissory note by reference into his affidavit.
{6} On August 30, 2017, the court issued an entry granting appellee‘s motion for summary judgment. The court entered judgment against appellant in the amount of $5,000 plus costs and interest at the statutory rate.
{7} On September 26, 2017, appellant filed a pro se motion for a continuance, asking the court to continue the due date for his response to appellee‘s motion for summary judgment. Appellant indicated in the motion he intended to retain counsel in the near future. On October 11, 2017, appellant, through counsel, filed a motion for leave to file an answer instanter.
{8} The court issued an order and notice of wage garnishment to appellant‘s employer on October 20, 2017. The court denied appellant‘s motion for continuance and motion for leave to file an answer instanter on October 31, 2017.
{9} On November 2, 2017, appellant, through counsel, filed a
{10} The court issued an entry denying appellant‘s motion for relief from judgment on November 22, 2017. On December 14, 2017, appellant filed a notice of appeal from the court‘s November 22, 2017 entry.
{11} Appellant appeals, assigning the following two assignments of error for our review:
[I.] The Trial Court erred as a matter of law in granting Plaintiff-Appellee Nancy Suon‘s Motion for Summary Judgment.
[II.] The Trial Court abused its discretion by denying a
Civ.R. 60(B) Motion for Relief from Judgment, without first holding a hearing, in which such Motion presented allegations that would, if true, warrant relief underCiv.R. 60(B) .
{12} Appellant‘s first assignment of error asserts the trial court erred in granting appellee‘s motion for summary judgment. However, as appellant failed to file a timely appeal of the entry granting appellee‘s motion for summary judgment, we lack jurisdiction to address appellant‘s first assignment of error.
{13}
{14} The trial court‘s August 30, 2017 entry granting appellee‘s motion for summary judgment was a final appealable order. See
{15} Thus, despite failing to file a timely appeal of the court‘s entry granting summary judgment, appellant now attempts to have this court review that decision by way of appealing the entry denying his
{16} Thus, ” ‘an appeal from an order denying relief under 60(B) does not bring up for review the judgment from which relief is sought.’ ” Town & Country at 266, quoting 7 Moore, Federal Practice, Section 60.30. As a motion for relief from judgment “is not a substitute for a direct appeal from the judgment challenged,” this court will not “do indirectly what it cannot do directly.” Shoemaker Funeral Home v. Furtado, 10th Dist. No. 88AP-400 (Sept. 1, 1988) (holding the appellate court lacked jurisdiction to review trial court‘s entry granting summary judgment, as appellant did not appeal the summary judgment ruling but, instead, appealed the trial court‘s entry denying appellant‘s motion for
{17} Based on the foregoing, we lack jurisdiction to address appellant‘s first assignment of error.
{18} Appellant‘s second assignment of error asserts the trial court abused its discretion in denying his
{19} In order to prevail on a
{20} A party who files a
{21} Although nothing “requires that a
{22} The decision to grant a
{23} Appellant asserts he had the meritorious defenses of having four witnesses who would testify that he did not sign the promissory note on the date alleged, and of having a witness who would establish that appellee tricked him into signing a document under the pretext that it was a doctor‘s note. Appellant, however, failed to present any evidentiary material, in the form of affidavits, depositions, answers to interrogatories, written stipulations or other evidence given under oath, to support his claims regarding these alleged witnesses. Appellant‘s unsworn allegations fail to present a meritorious defense. These assertions also amount to an impermissible attempt to litigate through the motion for relief from judgment the arguments appellant should have made in response to the motion for summary judgment. See Harshman Dynasty, LLC v. Mason, 2d Dist. No. 25873, 2014-Ohio-1108, ¶ 18, quoting Brigadier Constr. Servs. v. JLP Glass Prods., 8th Dist. No. 98672, 2013-Ohio-825, ¶ 23 (observing that “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,” because if allowed “such practice would ‘undermine the purposes of Civil Rules 56 and 60(B)’ and create a ready avenue for delay“).
{24} Appellant additionally asserts that his failure to respond to the motion for summary judgment constituted excusable neglect as he did not know that he was required to respond to the motion. Appellant states that, due to his inability to read the English language, he “did not understand or comprehend the meaning of the statements from the summons.” (Appellant‘s Brief at 15.)
{25}
{26} Appellant had knowledge of the action; he filed a pro se answer to the complaint. As demonstrated by the certificate of service, appellant also received appellee‘s motion for summary judgment. Yet, appellant did not respond to the motion for summary judgment, and chose to proceed pro se in the action until well after the court granted the motion for summary judgment. It is well-established that pro se litigants are bound by the same rules and procedures as litigants with counsel. White v. Fifth Third Bank, Inc., 10th Dist. No. 10AP-236, 2010-Ohio-4611, ¶ 13, citing Zukowski v. Brunner, 125 Ohio St.3d 53, 2010-Ohio-1652. A litigant proceeding pro se can neither expect nor demand special treatment. Kessler v. Kessler, 10th Dist. No. 09AP-740, 2010-Ohio-2369, ¶ 8. ” ‘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.’ ” U.S. Bank Natl. Assn. v. Lapierre, 10th Dist. No. 09AP-990, 2010-Ohio-4125, ¶ 11, quoting Justice v. Lutheran Social Servs., 10th Dist. No. 92AP-1153 (Apr. 8, 1993).
{27} Thus, ” ‘[a] party who is informed of court action against him and fails to seek legal assistance does so at his risk and such conduct cannot be said to constitute “excusable neglect” under
{28} Neither appellant‘s lack of familiarity with legal proceedings, nor his inability to read English, amounted to operative facts which would establish excusable neglect. See Gamble Hartshorn at ¶ 27-31 (holding that the appellant‘s failure to respond to the motion for summary judgment “based on his contention that he was not proficient with the English language, and he lacked familiarity with the legal system,” did not amount to excusable neglect). Appellant was aware of the action, and his actions demonstrated a complete disregard for the judicial system. Moreover, appellant demonstrated sufficient command of both the English language and the legal process when he initially filed an answer to the complaint, and when he later filed a motion for continuance indicating he intended to retain counsel. As appellant failed to present operative facts which would support a finding of excusable neglect under
{29} Based on the foregoing, appellant‘s second assignment of error is overruled.
{30} Having overruled appellant‘s second assignment of error, and finding we lack jurisdiction to address appellant‘s first assignment of error, we affirm the judgment of the Franklin County Municipal Court.
Judgment affirmed.
TYACK and LUPER SCHUSTER, JJ., concur.