[Cite as Rayess v. Staton, 2015-Ohio-5169.]




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

 M. BASSEM RAYESS                                   :
                                                    :   Appellate Case No. 26683
         Plaintiff-Appellant                        :
                                                    :   Trial Court Case No. 14-CV-2821
 v.                                                 :
                                                    :   (Civil Appeal from
 JAMES C. STATON, et al.                            :    Common Pleas Court)
                                                    :
         Defendant-Appellees                        :
                                                    :

                                               ...........
                                              OPINION
                          Rendered on the 11th day of December, 2015.
                                               ...........

M. BASSEM RAYESS, Post Office Box 293166, Kettering, Ohio 45429
     Plaintiff-Appellant, pro se

JAMES C. STATON, Atty. Reg. No. 0068686, Staton, Fisher & Conboy, 5613 Brandt Pike,
Huber Heights, Ohio 45424
      Defendant-Appellee, pro se

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

HALL, J.

        {¶ 1} On May 13, 2004 M. Bassem Rayess filed, pro se, a civil complaint against

one of his former attorneys, the nature of which is not relevant. However, the defendant
                                                                                       -2-


filed a Motion for Summary Judgment on November 4, 2014. The trial court filed an entry

on November 7, 2014 setting submission dates for the defendant’s Motion for Summary

Judgment. On November 10, 2014, the Appellant filed an “Entry of Voluntary Dismissal”

pursuant to Civ. R. 41 (A)(1)(a). A court cost statement for $247.00 was sent to Appellant

November 12, 2014. On November 21, 2014, Appellant filed a “Motion for Exemption from

Paying the Court Costs,” which was supported by Appellant’s affidavit. On April 24, 2015,

the trial court denied the requested exemption from paying court costs. This appeal

followed.

      {¶ 2} A court has discretion over the issue of whether a person is indigent, and

thus whether to waive filing fees and costs. Carter v. Elliott, 2d Dist. Clark No. 2008 CA

107, 2009-Ohio-7039, ¶ 5. The term “abuse of discretion” indicates that the trial court’s

decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

      {¶ 3} We note the similarity between this case and the cases Rayess v. McNamee,

2d Dist. Montgomery No. 25915, 2014-Ohio-2210 and Rayess v. McNamee, 2d Dist.

Montgomery No. 26543, 2015-Ohio-3163, both appeals from the same trial court case

where Rayess had filed suit against another former attorney. In Case No. 25915 we

determined that the statute of limitations had expired on Rayess’s claim. But we also

determined that that trial court had not abused its discretion when it denied Rayess’s

motion for exemption from court costs. We stated

             Although the trial court did not recite the basis for its decision, the

      trial court reasonably could have found his affidavit deficient. The August

      22, 2013 affidavit alleged that Rayess had lost his job in May 2009 and was
                                                                                           -3-


       not working. The affidavit did not address why Rayess, who holds a medical

       degree, had not obtained employment in more than four years or what steps

       he had taken to do so. The affidavit also acknowledged that Rayess

       received “public assistance” and had “limited savings” but did not identify

       the amount of either. Under these circumstances, we cannot say the trial

       court abused its discretion in denying his motion for exemption from court

       costs. The fact that other courts have exempted him in the past did not

       compel the trial court to do so here.

Rayess v. MacNamee, No. 25915, at ¶ 26.

       {¶ 4} Subsequent to that decision, Rayess filed a motion for relief from judgment

on June 9, 2014 specifically regarding the court costs, and with the motion he submitted

a more detailed affidavit about his financial status. Five of the six paragraphs in the June

9, 2014 affidavit are identical to five of the seven-paragraph affidavit he submitted on

November, 21, 2014 in the case now before us. The two different paragraphs in the more

recent affidavit are paragraph 1., “I am currently not working and I have zero income.”,

and paragraph 7., which is a paragraph somehow attributing fault to the appellee in this

case for not providing notice to his insurance carrier so that Rayess could have found an

attorney who would represent him on a contingency basis and who would obtain an expert

on his behalf.

       {¶ 5} In regard to the Motion for Relief from Judgment in the second McMamee

appeal, regarding the June 9, 2014 more detailed affidavit, we stated “we conclude that

even if the trial court considered the new [June 9, 2014] affidavit, the trial court would not

abuse its discretion by again denying the motion for waiver of costs.” Rayess v.
                                                                                        -4-

McNamee, No. 26543, ¶ 15.

      {¶ 6} The affidavit in the case before us is not significantly different from the one

Rayess submitted in his prior referenced appeal. We see no reason to deviate from our

prior conclusion and we determine that the trial court here did not abuse its discretion by

denying Appellant’s motion for exemption from court costs.

      {¶ 7} Rayess’s sole assignment of error having been overruled, the order of the

trial court overruling his Motion for Exemption from Paying the Court Costs is Affirmed.

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



FROELICH, P.J., and FAIN, J., concur.




Copies mailed to:

M. Bassem Rayess
James C. Staton
Hon. Michael W. Ward
(sitting for Judge Richard Skelton)

Case Name:          M. Bassem Rayess v. James C. Staton, et al.
Case No:            Montgomery App. No. 26683
Panel:              Froelich, Fain, Hall
Author:             Michael T. Hall
Summary:            Plaintiff in legal malpractice action who voluntarily dismissed the
                    claim filed motion for exemption from court costs. He failed to
                    demonstrate a meritorious claim for exemption. Trial Court did not
                    abuse its discretion by denying Appellant’s “Motion for Exemption
                    from Paying the Court Costs.” Affirmed.
