[Cite as Cuyahoga Metro. Hous. Auth. v. Rabb, 2011-Ohio-2287.]


         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 95658




         CUYAHOGA METROPOLITAN HOUSING
                AUTHORITY ET AL.
                                                 PLAINTIFFS-APPELLEES

                                                   vs.

                                    CLAUDE RABB
                                                 DEFENDANT-APPELLANT




                                         JUDGMENT:
                                          AFFIRMED


                                     Civil Appeal from the
                                  Cleveland Municipal Court
                                  Case No. 2008 CVG 008714


        BEFORE:           Sweeney, J., Stewart, P.J., and Jones, J.
      RELEASED AND JOURNALIZED:                   May 12, 2011

ATTORNEY FOR APPELLANT

Joseph J. Straka, Esq.
Morscher Straka, L.L.C.
11711 Lorain Avenue, Suite 56
Cleveland, Ohio 44111

ATTORNEY FOR APPELLEES

Michael P. McGuire, Esq.
1441 West 25th Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:

      {¶ 1} Defendant-Appellant Claude Rabb (“Rabb”) appeals following the

municipal court’s denial of his second motion for relief from the judgment that

ordered his eviction from an apartment owned by Cleveland Metropolitian

Housing Authority (“CMHA”). On appeal, Rabb asserts that the trial court

abused its discretion because it is his belief that the court did not consider his

legal arguments. For the reasons that follow, we affirm.

      {¶ 2} In 2008, CMHA initiated a complaint in forcible entry and

detainer against Rabb, which proceeded to a hearing that was attended by

both parties. Judgment was entered in favor of CMHA and the cause for

eviction was granted over Rabb’s objections.        After he had vacated the
premises and approximately a year after entry of judgment, Rabb moved for

relief from the eviction judgment arguing that it had been satisfied pursuant

to Civ.R. 60(B)(4) by his departure from the premises. The municipal court

denied the motion, which was affirmed by this Court on appeal in Cuyahoga

Metro. Hous. Auth. v. Rabb, Cuyahoga App. No. 93561, 2010-Ohio-1870.

      {¶ 3} On July 6, 2010, Rabb filed a second motion for relief from the

same eviction judgment.     According to Rabb, this successive Civ.R. 60(B)

motion is “based exclusively upon facts and events which occurred prior to

and at the trial upon the first case.” The substance of the pro se motion

details facts upon which Rabb believes entitled him to judgment in his favor

on CMHA’s complaint for eviction. The motion provides no citation to law or

any legal argument with the exception of the concluding sentence, which

provides: “I am asking relief from this eviction order under Civil Rule 60(B)(5)

for these reasons.”

      {¶ 4} The trial court noted that the successive motion raised the same

issue, i.e. a request to vacate the eviction order, and was “similar in

substance” to the previously filed motion. The court found that the motion did

“not raise any extraordinary meritorious grounds for relief as stated in Civ.R.

60(B).” The municipal court denied the motion finding it set forth claims that

could have been raised on appeal and were, therefore, determined by the prior

decision that had been affirmed on appeal.
      {¶ 5} In his sole assignment of error Rabb contends:

      {¶ 6} “The trial court erred and abused its discretion in failing to

appropriately consider and render proper judgment upon Appellant’s Motion

for Relief from Judgment under Civil Rule 60(B)(5), as it wholly

misinterpreted and/or failed to consder [sic] the legal argument supporting

Appellant’s July 9, 2010 Motion to Vacate.”

      {¶ 7} We review a ruling on a Civ.R. 60(B) motion for relief from

judgment under an abuse of discretion standard. Rose Chevrolet, Inc. v.

Adams (1988), 36 Ohio St.3d 17, 520 N.E.2d 564. An abuse of discretion is

“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, 450 N.E.2d 1140 (internal citations omitted).

      {¶ 8} It is well settled that the doctrine of res judicata bars litigants

from reasserting arguments that were raised or could have been raised in a

prior motion to vacate. Cleveland State Univ. v. Woods, Cuyahoga App. No.

94561, 2010-Ohio-5144, ¶31, quoting, D’Agnese v. Holleran, Cuyahoga App.

No. 83367, 2004-Ohio-1795, ¶19-20, citing, Coulson v. Coulson (1983), 5 Ohio

St.3d 12, 13, 448 N.E.2d 809; see, also, Koly v. Nassif, Cuyahoga App. No.

88399, 2007-Ohio-2505, ¶7-8 (court did not abuse its discretion by denying

appellant’s successive motion for relief from judgment where no new events
occurred and no new facts were discovered between filing of the first and

second motion for relief from judgment).

      {¶ 9} This is Rabb’s second attempt to obtain relief from the judgment

of eviction. He does not allege any new facts or events in the subsequent

motion and instead relies on facts that occurred prior to and at the trial of the

first cause.   Accordingly, the issues he presents in his successive motion

could have been raised in the prior motion to vacate. A motion for relief from

judgment cannot be used as a substitute for a timely appeal and “the doctrine

of res judicata prevents issues from being litigated ad nauseam.” Id. at ¶6-8.

For these reasons, the trial court did not abuse its discretion by denying

Rabb’s successive Civ.R. 60(B) motion. Further, the trial court’s judgment

entry reflects that it did consider the substance of Rabb’s motion, which was

similar to the previously filed motion despite that it sought relief under

Civ.R. 60(B)(5) rather than Civ.R. 60(B)(4).

      Judgment affirmed.

      It is ordered that appellees recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE

MELODY J. STEWART, P.J., and
LARRY A. JONES, J., CONCUR
